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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).

September 28, 2026

What are the principles governing common purpose misconduct?

September 21, 2026

What are the principles governing an employee’s duty to disclose to his/her employer information about misconduct?

September 14, 2026

In Article 31, we dealt with the distinction between desertion and abscondment.

In Article 32, we dealt with the misconduct of deeming desertion.

In this article, we will deal with termination of employment by operation of law in the private sector – similar to deeming to be discharged in the public sector.