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Article 36/2023

Articles 34/2023 and 35/2023 dealt with the general approach in dealing with compensation where a dismissal is substantively unfair or, alternatively, substantively and procedurally unfair.

However, it appears that the calculation of compensation, if the unfair dismissal took place on the basis of operational requirements, may be treated slightly differently.

What are the relevant principles that practitioners should be aware of when executing dismissals for operational requirements with reference to this deviation?

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  • In Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC), the labour appeal court indicated that, when calculating compensation, the actual loss or patrimonial loss is irrelevant and the award of compensation is indeed a solatium taking into account, inter alia, the employee’s hurt in this regard
  • however, despite the above approach, the labour appeal court, in Total SA (Pty) Ltd v Meyer (2021) 32 SALLR 40 (LAC), in applying Kemp t/a Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC), indicated the following:
    • the extent of financial loss suffered by an employee when a dismissal has taken place for operational requirements should be taken into account when calculating compensation (applying this principle to the facts in casu, the labour appeal court held (in Total SA) that severance pay received by the employee in excess of the BCEA should be taken into account in calculating compensation)
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?