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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)
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?