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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.