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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)
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?