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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))
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?