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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)
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?