What is the rationale for awarding compensation?
What are the types of factors to be taken into account to determine whether compensation should be awarded?
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In McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), the constitutional court, with reference to, inter alia, Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SCA), identified the rationale for compensation as follows:
- it gives meaning to the right not to be unfairly dismissed and discourages a shotgun approach
- it recognises the right to be heard before any action is taken by the employer
- it recognises the employee’s worth as a person
In respect of the factors to be taken into account to determine whether compensation should be awarded, the constitutional court, in McGregor, provided the following non-exhaustive list:
- the courts are more in favour of awarding compensation than not where the dismissal is both substantively and procedurally unfair than where the dismissal is only substantively or procedurally unfair
- the nature and extent of deviation from procedural fairness requirements also plays a role – the lesser the deviation, the greater chance of no compensation, whereas the more serious the deviation the stronger the chance of compensation
- the reason for dismissal also plays a role as well as the employee’s guilt or innocence and the appropriateness of the sanction
- if the dismissal is only procedurally unfair, there is a discretion not to award compensation at all or to award the appropriate compensation
(Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC))
