Article 37/2023

On the basis of the constitutional court’s approach in McGregor v Public Health and Social Development Sectoral Bargaining Council and Others (2021) 32 SALLR 33 (CC), it is apparent that arbitrators and the courts are required to separately consider substantive fairness and procedural fairness issues when determining compensation.

It therefore appears not to be permissible for arbitrators and courts to consider fairness holistically, but what is required is to determine various relevant factors relating to substantive fairness and procedural fairness, independently, in determining compensation.

What is the recommended approach therefore to be followed in the light of the aforesaid approach of the constitutional court?

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The constitutional court, in McGregor, with reference to Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC), identified the following approach that should be adopted when so determining compensation:

substantive fairness considerations

  • consideration must be given to the nature and extent of the misconduct (the reason for the dismissal plays an important role – e g dismissal on the basis of continual late coming is a less serious offence than dismissal on the basis of sexual harassment and this factor should be taken into account when determining compensation)
  • the attitude of the employee should also be considered
  • if the reason for which the employee was dismissed is serious, notwithstanding procedural unfairness, either no award for compensation should be made or it should be substantially limited

procedural fairness considerations

  • the degree of deviation from the required procedural fairness norm is important:
    • if it is insignificant, potentially such deviation should have a small influence on compensation
    • on the other hand, if such deviation is significant, it will potentially have a greater influence
      on the amount of compensation

In view of the aforesaid approach adopted by the constitutional court, it is submitted that, should there be non-compliance with the aforesaid principles, then potentially the award would be rendered reviewable

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