Reflections on Proposed Law Reforms for Unfair Dismissal

by | Oct 4, 2025 | ILJ, ILJ V46 I4

Reflections on Proposed Law Reforms for Unfair Dismissal

Authors Stefan van Eck, Kamalesh Newaj & Zwivhuya Mashele

ISSN: 2413-9874
Affiliations: Professor of Labour Law, University of Pretoria; Associate Professor of Labour and Social Security Law, University of Pretoria; Lecturer, University of Pretoria
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2257 – 2286

Abstract

The NEDLAC social partners have been engaged in a process of formulating amendments to a number of key pieces of labour legislation and their accompanying codes. In an attempt to foster job creation, policymakers have, among others, published proposals with the view to relaxing the seemingly onerous requirements in respect of unfair dismissal law. Although the negotiating parties have not reached consensus on key aspects of the amendments, significant suggestions have been placed on the table regarding amendments to the Code of Good Practice: Dismissal, as well as important provisions of the Labour Relations Act. The proposed amendments seek to relax unfair dismissal provisions in respect of small employers; they exclude unfair dismissal protection during probation; they recognise incompatibility as a separate ground of dismissal; and they place a cap on the maximum compensation which higher earning employees might be eligible to claim. This contribution analyses these proposed amendments, focusing on their projected effects on the regulatory landscape of unfair dismissal in South Africa.

Advancing Substantive Equality in the Workplace: Recognising Appearance Autonomy through an Intersectional Lens

by | Oct 4, 2025 | ILJ, ILJ V46 I4

Advancing Substantive Equality in the Workplace: Recognising Appearance Autonomy through an Intersectional Lens

Author Aisha Adam

ISSN: 2413-9874
Affiliations: Postdoctoral fellow, Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2287 – 2309

Abstract

Appearance discrimination in the workplace, though pervasive, remains an under explored issue in South Africa’s legal landscape. While certain aspects of physical appearance such as race, colour and sex are explicitly protected under the Constitution, other traits including weight, dress, hairstyle and body modifications receive no express protection. This article focuses on these unprotected dimensions of appearance and argues for their inclusion as a listed ground in the Employment Equity Act 55 of 1998 thus complementing the existing physical appearance protections relating, for instance, to race, sex and colour. It highlights the intersectional nature of appearance-based prejudice and the compounded harm experienced by individuals when appearance-based prejudice intersects with other listed grounds. Using an intersectional lens, the article examines how systemic biases rooted in appearance perpetuate exclusion and inequality. It also seeks to balance employee autonomy with employer interests, through more inclusive workplace policies.

The Cat and Mouse Game in the Enforcement of Arbitration Awards: The Interface between the Labour Relations Act Amendments and Stalingrad Litigation

by | Oct 4, 2025 | ILJ, ILJ V46 I4

The Cat and Mouse Game in the Enforcement of Arbitration Awards: The Interface between the Labour Relations Act Amendments and Stalingrad Litigation

Author Carlos J Tchawouo Mbiada

ISSN: 2413-9874
Affiliations: Senior Lecturer, Department of Mercantile and Private Law, University of Venda
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2310 – 2332

Abstract

The effective resolution of disputes is a key feature of the South African labour relations framework: it is of critical importance that disputes be resolved speedily and expeditiously. The objective of this article is to analyse the reasons for the delay in resolving disputes notwithstanding legislative provisions designed to achieve this. In particular it focuses on the delay in the enforcement of arbitration awards as far as review applications in the Labour Court are concerned. It is revealed that, notwithstanding the legislative intention to resolve labour disputes in a speedy manner, there is a substantial lapse of time from the moment an award is issued to the time that the award is finally executed, if ever. The delaying tactics, commonly known as Stalingrad litigation, is a phenomenon which hinders the speedy resolution of labour disputes. It is argued that frivolous review applications are the visible face of such tactics. The legislature has, over the years, amended the Labour Relations Act 66 of 1995 to address these delaying tactics. However, despite the legislative effort, the practice is yet to stop. This is partly because labour tribunals operate as courts of law, equity and fairness in the determination of disputes, and thus are prone to extreme leniency which dishonest litigants exploit. This contribution suggests a stricter application of clauses 7(2) and 69(2) of the Labour Court’s new rules to obviate such a delay.

The Relevancy of Expunged Criminal Records in Employment Matters in South Africa: O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC)

by | Oct 4, 2025 | ILJ, ILJ V46 I4

The Relevancy of Expunged Criminal Records in Employment Matters in South Africa: O’Connor v LexisNexis (Pty) Ltd (2024) 45 ILJ 1287 (LC):

Author Jamil Ddamulira Mujuzi

ISSN: 2413-9874
Affiliations: Professor of Law, Faculty of Law, University of the Western Cape
Source: Industrial Law Journal, Volume 46 Issue 4, 2025, p. 2333 – 2344

Abstract

Sections 271B-271E of the Criminal Procedure Act provide for the expungement of some criminal records but are silent on the effect of such expungement. The drafting history shows that the effect of an expungement is that the person shall be regarded as never having been convicted of the offence for all intents and purposes. However, in O’Connor v LexisNexis (Pty) Ltd, the Labour Court failed to give effect to the intention of the legislature when it held that when a conviction is expunged, it becomes irrelevant for the purpose of sentencing but still relevant for the purpose of employment. The court also held that the refusal by an employer to employ a person simply because of his or her criminal record may amount to unfair discrimination under s 6 of the Employment Equity Act 55 of 1998 if there is no evidence that the record will prevent him or her from doing the job in question. The court’s reasoning in this regard should be applauded and should extend to instances where criminal records have not yet been expunged.

The Plight of First Responders Suffering from Mental Disorders: Will an Amended Workers’ Compensation Act Relieve their Predicament?

by | Jul 27, 2025 | ILJ, ILJ V46 I3

The Plight of First Responders Suffering from Mental Disorders: Will an Amended Workers’ Compensation Act Relieve their Predicament?

Author Karin Calitz

ISSN: 2413-9874
Affiliations: Professor Emeritus and Research Fellow, Department of Mercantile Law, Stellenbosch University
Source: Industrial Law Journal, Volume 46 Issue 3, 2025, p. 1523 – 1550

Abstract

First responders are at great risk to contract Post Traumatic Stress Disorder (PTSD), because of the nature of their work. This often leads to suicide or homicide-suicide, involving family members.
The process of claiming benefits from the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA), often exacerbates the PTSD symptoms because the onus of proof that PTSD arose out of and in the course of employment rests on the employee. Claiming compensation often takes years, partly due to the lack of expertise of commissioners and tribunals, leaving employees no other choice but to appeal to the High Court.
Legal comparison indicates that certain provinces in Canada, and some states in the US and Australia, have adopted presumptive legislation which relieves first responders of the onus to prove that PTSD arose out of their employment.
The Compensation for Occupational Injuries and Diseases Amendment Act 10 of 2022 (COIDAA), which is not in force yet, for the first time includes PTSD (but no other mental illness) in the definition of an occupational disease. COIDA’s draft Schedule 3 lists PTSD as an occupational disease that will be covered by a presumption but does not limit the presumption to any categories of injured or diseased employees. This means that any employee suffering from PTSD will be covered by the presumption as soon as it is established that the person suffers from PTSD. In light of the fact that the Compensation Fund (CF) experiences serious financial difficulties, the article agrees that rehabilitation and return-to-work measures introduced by the COIDAA are laudable, but at present financially unattainable. More informal, less costly measures, such as online psychoeducation training of first responders, peer groups and families to recognise the symptoms of PTSD and how to deal with those, can nurture resilience of first responders and empower those closest to them to support them. By ensuring a psychosocial safety climate, employers can do much to prevent PTSD. A code of good practice could include these recommendations.
The article further recommends that the presumption should at first only cover first responders as a matter of urgency until the CF becomes financially viable again.

‘Just and Equitable’ Grounds for Review in Section 158(1B) of the LRA

by | Jul 27, 2025 | ILJ, ILJ V46 I3

‘Just and Equitable’ Grounds for Review in Section 158(1B) of the LRA

Author Andrea Joy Zitzke

ISSN: 2413-9874
Affiliations: BA Law (Pretoria), LLB (Pretoria), LLM (Stellenbosch), LLD candidate (Free State)
Source: Industrial Law Journal, Volume 46 Issue 3, 2025, p. 1550 – 1573

Abstract

When will a court find it ‘just and equitable’ to intervene during incomplete proceedings in terms of s 158(1B) of the Labour Relations Act 66 of 1995 (LRA)? It is becoming more and more commonplace, contrary to the purpose of the LRA, to bring reviews during incomplete Commission for Conciliation, Mediation and Arbitration (CCMA) and bargaining council proceedings. It is therefore necessary to clarify when a court will exercise its discretion to review proceedings before their finalisation. Since determining what is ‘just and equitable’ has been a ‘difficult horse to ride’ for the court and litigants alike, it is necessary for principles to be extracted from previous decisions in order to produce concrete rules that will assist with establishing when a court may intervene during incomplete proceedings in terms of s 158(1B) in accordance with legal certainty and stare decisis. In this contribution, the history of case law is traced in an attempt to distil relevant concrete principles that can assist practitioners and courts in this determination.