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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))

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?