Article 38/2022

What are the remedies available to a successful applicant in an unfair labour practice dispute and how is compensation calculated in this regard?

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Application of s193(4) of the LRA

  • the arbitrator is required to determine the dispute on terms that are reasonable and same may include reinstatement, re-employment or compensation

Application of s193(2) of the LRA

  • The primary relief is reinstatement or re-employment unless in terms of s193(2)(c) of the LRA:
  • the employee does not wish for it or
  • continued employment is intolerable or
  • reinstatement or re-employment is not reasonably practicable or
  • the dismissal is only procedurally unfair

Application of s194(4) of the LRA

  • compensation must be just and equitable in all circumstances but amount to no more than 12 months’ remuneration

Calculation when awarding compensation

  • it is indeed compensation for non-patrimonial loss and the jurisprudence relating to the award of a solatium in respect of the Actio Iniuriarum is relevant (Minister of Justice and Constitutional Development v Tshishonga (2009) 30 ILJ 1799 (LAC)
  • compensation is designed to ‘…compensate the person who has suffered an attack on his or her dignity and reputation or an onslaught on his or her humanity’ – Tshishonga judgment (supra)

The following factors are relevant in this regard:

  • the seriousness of the infringement on the dignity
  • the nature and extent of the publication
  • the reputation of the employee
  • the motives and conduct of the employer (Tshishonga judgment (supra); Mogale and Others v Seima 2008 (5) SA 637 (SCA))

The following guidelines should be applied when calculating compensation:

  • the award must attempt to place the employee in the position he/she would have been in had it not been for the unfair labour practice
  • the award must be reasonable and fair in all circumstances
  • however, there is a duty on the employee to mitigate damages (Solidarity obo Kerns v Mudau NO (2007) 28 ILJ 1146 (LC); Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC))
September 5, 2024

In assessing if reinstatement is fitting after CCMA deems dismissal in a fixed-term contract unfair, what factors guide this determination?

August 29, 2024

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?

August 22, 2024

An accountant at a municipality faced dismissal for attempting to access the account. Reinstated after appealing to the bargaining council, new charges of dishonesty and IT policy breach led to another dismissal.