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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?

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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
    compensation
  • 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
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?