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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?

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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

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?