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Article 34/2023

The constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), identified the different discretions applicable when an arbitrator, firstly, makes the decision to award compensation and, secondly, determines the amount of compensation – not to be confused with the amount of back pay which was covered in articles 32/2023 and 33/2023.

What are the principles to be extracted from this judgment of the constitutional court that would be applicable during arbitrations and court proceedings when dealing with the issue of compensation?

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With reference to, inter alia, Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SCA); [2012] 1 BLLR 9 (SCA), the constitutional court had the following to say in respect of the discretion to be exercised when considering compensation:

the application of s193(1)(c) of the LRA

  • an application of this statutory provision finds application as to the arbitrator’s or court’s decision to award compensation, and not determining the amount of compensation
  • this entails the exercise of a judicial discretion – entailing that the reviewing or appeal body’s power to interfere is not limited and that it can come to its own decision on the merits
  • whether or not such judicial discretion has been correctly exercised entails an application of the
    reasonable decision-maker test

(see, further, Campbell v Simmers (2016) 37 ILJ 116 (LAC))

an application of s194 of the LRA

  • an application of this section is required to determine the amount of compensation
  • this entails the exercise of a narrow discretion, meaning that the reviewing or appeal body will only interfere on limited grounds with such amount
  • such limited grounds of interference have been identified by the constitutional court in National Coalition of Gay and Lesbian Equality v Minister of Home Affairs 2000 (2) SA 1 (CC) as to include the following:
    • the discretion was not exercised judicially
    • the decision-maker was influenced by wrong principles
    • the decision-maker was misdirected on the facts
    • the decision was not one that could reasonably have been made with reference to the relevant facts and applicable principles
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)?