Article 38/2023

How is compensation to be calculated when a dismissal is only procedurally unfair – i e when section 193(2)(d) of the LRA is applicable?

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In Zeda Car Leasing (Pty) Ltd t/a Avis Fleet v Van Dyk (2020) 31 SALLR 51 (LAC), the labour appeal court adopted the following approach:

  • the compensation must be just and equitable in all circumstances (see s194(1) of the LRA
  • with reference to Johnson & Johnson v CWIU (1999) 20 ILJ 89 (LAC), the following factors are
    relevant:

    • actual loss or patrimonial loss is irrelevant
    • the award is indeed a solatium (as a redress)
    • amongst other things, the following are relevant: the extent of deviation from the required procedure, the employee’s conduct, the employee’s length of service and the anxiety and hurt suffered by the employee

(see, further, Alpha Plant v Simmonds [2001] 3 BLLR 361 (LAC), ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LAC) and Lorentzen v Senachem (Pty) Ltd [1998] 8 BLLR 814 (LC)

It appears that an appeal court will only interfere if the irregularity or the misdirection entails either the ignoring of relevant facts or, alternatively, whether or not the compensation was based on inadequate facts (see, further, Road Accident Fund v Guedes 2006 (5) SA 583 (SCA).

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).