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.
