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Article 33/2023

In article 32/2023, we dealt with the relevant factors determining the period of reinstatement and the relevant factors determining the amount of back pay. In this article, we deal with the difference between the amount of back pay and compensation calculated in terms of s193(1)(c) read with s194(1) of the LRA.

The constitutional court, in Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), clearly spells out the difference between the aforesaid remedies.

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The constitutional court, in Booi, specifically identified the following principles regulating these two
remedies:

  • compensation is capped in terms of s194(1)
  • on the other hand, back pay is not capped in terms of s194(1) and is subject to, amongst others,
    the following principles:

    • it should not be operative earlier than the dismissal date
    • it is to take into account the money that the dismissed employee would have earned from the date of his dismissal to when the arbitration award was made in his favour (therefore, whether or not the employee was employed during such period and what he earned becomes relevant)
    • the amount must be just and equitable

(see, further, Union for Police and Security Corrections Organisation v SA Custodial Management (2021) 42 ILJ 2371 (CC))

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?