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))

September 5, 2024

In assessing if reinstatement is fitting after CCMA deems dismissal in a fixed-term contract unfair, what factors guide this determination?

August 29, 2024

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?

August 22, 2024

An accountant at a municipality faced dismissal for attempting to access the account. Reinstated after appealing to the bargaining council, new charges of dishonesty and IT policy breach led to another dismissal.