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Article 35/2023

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))

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?

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