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Article 26/2023

The constitutional court recently, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), had the opportunity to deal with the perception that, once a finding is made that an employee has been unfairly dismissed, he or she is automatically entitled to a remedy.

What was the approach adopted by the constitutional court?

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With reference to Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC), the constitutional court
held the following viewpoint: ‘Although every employee has the right not to be unfairly dismissed in
terms of s185(a) of the LRA, the infringement of that right neither necessarily nor automatically
confers a right to a remedy…’

In short, the above approach entails that arbitrators will be required to justify why a remedy (e g
reinstatement, re-employment or compensation) was specifically granted on the facts of the case and,
if they are not able to do so, this would potentially constitute a reviewable ground for such arbitration
award.

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?