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Article 39/2022

What are the remedies available to a successful applicant in an automatically unfair dismissal or unfair discrimination dispute?

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  • In an automatically unfair dismissal dispute, s194(3) of the LRA is applicable, entailing same to be just and equitable in all circumstances but not more than 24 months’ remuneration
  • In respect of unfair discrimination, s50(2) of the EEA is applicable, entailing same being just and equitable in all circumstances, including compensation and damages

BMW (SA) (Pty) Ltd v NUMSA (2020) 31 SALLR 119 (LAC); ARB Electrical Wholesalers v Hibbert (2015) 26 SALLR 14 (LAC)

Compensation is akin to a non-patrimonial delictual claim and the principles to be taken into account when awarding compensation, as already set out in article 38/2022, are to be taken into account.

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?