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Article 26/2025

What is the distinction between compensation awarded for an automatically unfair dismissal (ito s187(1) of the LRA) and compensation in terms of the EEA (ito s50(2)(a) of the EEA) and damages in terms of the EEA (ito s50(2)(b) of the EEA)?

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LRA: AUTOMATICALLY UNFAIR DISMISSALS (s187(1))

  • Compensation is calculated in terms of s194(3) of the LRA.
  • It must be just and equitable in all circumstances, but no more than 24 months’ remuneration.

EEA: UNFAIR DISCRIMINATION (s6(1))

  • Damages awarded in terms of s50(2)(b) of the EEA:
    • such damages are to be awarded for actual/potential monetary loss suffered by the employee (patrimonial loss)
  • Compensation to be awarded in terms of s50(2)(a) of the EEA:
    • Such compensation is a solatium for the insult/humiliation/indignity/hurt associated with the unfair discrimination (non-patrimonial loss).

See:

  • BMW (SA) (Pty) Ltd v NUM (2020) 31 SALLR 119 (LAC); (2020) 41 ILJ 1877 (LAC)
  • SA Airways (Pty) Ltd v Janse van Vuuren (2014) 35 ILJ 2774 (LAC)
  • ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC)
September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.