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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))
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?