Skip to main content

Article 37/2022

What are the principles governing compensation when a dismissal is only procedurally unfair?

_____________________________________

In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 31 SALLR 151 (LAC), the following principles were identified:

  • compensation is the appropriate remedy in terms of s193(2)(d) of the LRA
  • such compensation must be just and equitable in all circumstances (s194(1) of the LRA)

In Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC), the following was stated in this regard:

  • actual loss or patrimonial (pecuniary) loss is irrelevant
  • the award is actually for a solatium as redress
  • various factors are to be taken into account to determine the extent of the award:
  • the extent of the deviation from a fair procedure
  • the employee’s conduct
  • the employee’s length of service
  • anxiety and hurt that the employee suffered

(See, further, Alpha Plant v Simmonds [2001] 3 BLLR 361 (LAC); Lorentzen v Sanachem (Pty) Ltd [1998] 8 BLLR 814 (LC))

The appeal court can only interfere with an irregularity misdirection in respect of the awarding of compensation if:

  • the court a quo ignored relevant factors or
  • the decision was based on inadequate facts

Road Accident Fund v Guedes 2006 (5) SA 583 (SCA)

September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.