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).

October 10, 2024

What approach did the constitutional court recently adopt, in NUMSA v Trenstar (Pty) Ltd (2023) 44 ILJ 1189 (CC)?

October 3, 2024

Is an employer entitled to rely on s68(1)(b) of the LRA to claim compensation for losses suffered during a protected strike/lockout?

September 26, 2024

In the scenario where an employer was not permitted to trade during the Covid-19 lockdown (i e hard lockdown), are the employees, who could not tender their services lawfully, entitled to their normal benefits, such as leave and bonus benefits?