Article 27/2023

What are the potential remedies should a dismissal be substantively or substantively and procedurally unfair?

Is there a difference between such remedies if the dismissal is for misconduct or incapacity, as
opposed to operational requirements or automatically unfair dismissals?

What is the potential relief if the dismissal is only substantively unfair?

What was the approach adopted by the constitutional court?


The labour appeal court, in SA Teachers Union obo Kruger v Gauteng Department of Education (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), identified the following scenarios:

Scenario 1: the dismissal on the basis of misconduct or incapacity is substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment, entailing:
    • the resumption of employment on the same terms and conditions as at the date of dismissal
    • the arbitrator has a discretion in respect of retrospectivity, with the limitation that it cannot be
      fixed earlier than the actual date of dismissal

(Equity Aviation Services v CCMA 2009 (1) SA 390 (CC), SACCAWU v Woolworths (2019) 40 ILJ 87 (CC), Sibiya v SAPS (2022) 33 SALLR 28 (LAC))

  • the alternative remedy is compensation

Scenario 2: the dismissal is on the basis of operational requirements or being automatically unfair and is found to be substantively or substantively and procedurally unfair

  • what is stated above under scenario 1 is equally applicable here, mutatis mutandis
  • however, in terms of s193(3) of the LRA, in addition, any other order considered to be
    appropriate may be made

Scenario 3: the dismissal is for misconduct, incapacity, operational requirements or being
automatically unfair, but is procedurally only branded as unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement or re-employment is appropriate, but only
  • the only exception to the above is s189A(13) of the LRA, where reinstatement may be ordered to
    ensure a procedurally fair operational requirements dismissal in terms of s189A of the LRA

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.