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.


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

  • 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))

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.