Public Newsletter
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Worklaw subscribers receive a monthly newsletter containing commentary on the latest labour law cases and trends. This newsletter contains an article on 'Ready for climate change? The challenge for the workplace'. We also discuss three new judgments: The first case, a LAC judgment, looks at what test should be applied by the courts in assessing whether an employer's retrenchment was fair. The second case, also a LAC judgment, sets down what an employee has to prove to establish discrimination on an arbitrary ground. In the third case the Labour Court had to decide if it is fair to have different retirement ages in the same workplace.
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RECENT CASES
The test for a fair retrenchment
In Faeroes Properties (Pty) Ltd v Southern African Clothing and Textile Workers Union and Others (JA37/2024) [2025] ZALAC 35 (5 June 2025) the LAC had to consider the consequences of an employer failing to provide sufficient justification for retrenchment to employees during the required consultation process under section 189 of the LRA, although the employer's operational constraints became apparent during court proceedings.
The Labour Court concluded that the retrenchments were procedurally unfair given that the employer had failed to comply with the provisions of section 189. As to the substantive fairness of the dismissals, the Court took account of the fact that the employer presented its decision to reduce the workforce by 50% without demonstrating how this decision had been reached. It did not disclose information relating to dwindling production caused by drought and was found to have applied unexplained arbitrary and subjective criteria in deciding which employees to retrench.
It was found therefore that the employer had failed during the s189 consultation process to prove to employees the existence of a fair reason for the dismissals. In considering appropriate relief, the Court noted that although the LRA contemplates reinstatement as the primary remedy, it was not reasonably practical to reinstate the employees when only 17 employees would have work. There had also been further retrenchments in the subsequent period. Payment of the maximum compensation of 12 months' remuneration was ordered on the basis that this was the most appropriate remedy. This amounted to approximately R1,088,080 compensation for the 28 employees involved in this case.
Both parties appealed the Labour Court's decision to the LAC. The employer appealed the findings of both procedural and substantive unfairness, and the employees appealed the compensation remedy, seeking reinstatement.
Read more (Worklaw subscriber access only)
Proving discrimination on an arbitrary ground
In AMCU obo Members v Aberdare Cables (Pty) Ltd and Others (PA09/2024) [2025] ZALAC 26; [2025] 7 BLLR 698 (LAC) (14 April 2025) the LAC had to consider what an employee who alleges unfair discrimination on an arbitrary ground must prove, to succeed in the dispute.
In 2013, Aberdare Cables issued a notice in terms of s 189(3) of the LRA, initiating a retrenchment process. During the ensuing consultation, Aberdare and the then majority union, NUMSA, explored three possible options to address Aberdare's declining financial circumstances: a wage freeze, retrenchment, or different rates of pay.
The third option addressed Aberdare's concern that hourly rated wages were considerably above industry rates, resulting in a lack of competitiveness in the marketplace. Aberdare accepted (as did NUMSA) that the rates applicable in terms of the MEIBC main agreement were indicative of the market-related rate.
Aberdare and NUMSA agreed to the third option and Aberdare implemented a differential wage rate so that employees engaged after 1 January 2014 (the affected employees in this case) were remunerated at the lower MEIBC rate. The consequence was a continuing differential in the levels of wages at every level, between employees who perform the same, similar, or substantially the same work.
In 2015 after the agreement with NUMSA had been concluded, AMCU (the appellant in this case) began recruiting at Aberdare's operation. In 2019 AMCU referred a dispute to the CCMA contending that the Aberdare was in contravention of s 6 of the EEA because there was a difference in terms and conditions of employment between employees performing the same or substantially the same work, or work of equal value.
The dispute could not be resolved by conciliation and was referred to arbitration, which was then taken on appeal to the Labour Court.
Read more (Worklaw subscriber access only)
Can you have different retirement ages in the same workplace?
In Viljoen v Peninsula Plumbing and Engineering Works (Pty) Ltd (C383/2021) [2025] ZALCCT 31 (15 May 2025) the question for the Labour Court was whether it is unfair discrimination based on age if an employer has different retirement ages for different categories of staff.
The employee worked as an artisan plumber until his service was terminated in October 2020 due to having reached the retirement age of 60, having worked for the employer since August 2008. He claimed that it was automatically unfair that he was required to retire at age 60, when other employees were allowed to work beyond that age.
The employee challenged this differentiation as being unfair discrimination. Underpinning the employee's claims appeared to be his belief that he was being retired because he was a shopsteward who had to fight the company for workers' rights. The employer disputed his claims, saying his retirement age of 60 applied to employees engaged in his occupational category in terms of the Building Industry Bargaining Council agreement and in terms of its own policies. Six other employees working in his same category had also been retired at 60.
The employer's Retirement policy provided as follows: "The company has adopted the normal retirement age of 65 years for office administration staff, supervisory and foreman levels and that all other site worker employees will have a retirement age of 60 years as per this policy and in-line with the Building Industry Bargaining Council (BIBC) rules of the relevant retirement funds."
A company witnesses explained that the reason for the different retirement ages was the nature of the work done. The employees falling under the bargaining council agreement were generally engaged in more physically demanding work than the supervisory and administrative personnel, hence the different retirement ages of 60 and 65 respectively.
The employee's unfair discrimination claim was referred to the Labour Court.
Read more (Worklaw subscriber access only)
ARTICLE: : Ready for climate change? The challenge for the workplace
By Prof Alan Rycroft
The tendency to 'look the other way' increases when a problem is complex and contested. Climate change is confusing and frightening: leading to extreme heat, water shortages, sea-level rise, heat-related illnesses, wildfires, flooding, landslides, crop failures, increased hunger, poor nutrition. Although industry emissions are at the forefront of the causes, we tend to not think immediately of the impact of climate change on the workplace.One impact of climate change is a reduced work capacity in heat-exposed jobs. Another result is that the health and safety of employees is compromised. There are longer-term and serious effects: there will be greater difficulty in achieving economic and social development in the countries affected by the impact of climate change. (For example, the crisis in coffee growing in Ethiopia and cocoa growing in Ghana and Côte d'Ivoire is attributed to climate change.)
In 2024 the ILO (International Labour Organization) released an updated report: Heat at work: Implications for safety and health which calls for prevention and control strategies for heat stress as a matter of urgency (available at https://www.ilo.org/publications/heat-work-implications-safety-and-health).
In this article we want to briefly outline what steps have already been taken in South Africa, and then to think about steps which could be taken by employers and employees at the workplace level.
Read more (note - only available to Worklaw subscribers)
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Bruce Robertson
August 2025
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