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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).

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?