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.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?