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?

_____________________________________

  • 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)
March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.