Article 39/2023

Article 38/2023 dealt with the calculation of compensation when a dismissal is only procedurally unfair in terms of s193(2)(d) of the LRA. On the other hand, how is compensation to be calculated when s193(2)(a) to s193(2)(c) of the LRA are applicable?


The labour court recently, in Moloantoa v CCMA (2021) 32 SALLR 46 (LC), referred with approval to ARB Electrical Wholesalers v Hibbert (2015) 36 ILJ 2989 (LC) where it was stated that the following factors are to be taken into account when determining such compensation:

  • the nature and extent of the iniuria suffered by the employee
  • the circumstances within which the infringement took place
  • the behaviour of the employer
  • the extent of the employee’s humiliation or distress
  • the abuse of the relationship between the parties
  • the attitude of the employer subsequent to the iniuria

whether or not the employer benefited from external factors (such as the employee’s subsequent employment by a third party) – the general principle is the employer may not benefit from such external factors

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).