Skip to main content

Article 4/2025

In terms of s185(a) of the LRA, every employee has a right not to be unfairly dismissed. Does this right not to be unfairly dismissed translate into an automatic right to a remedy if it is found that the employee has been unfairly dismissed?

_____________________________________

The constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC) (with reference to Kemp t/a
Centralmed v Rawlins (2009) 30 ILJ 2677 (LAC)) adopted the following approach:

  • every employee has the right not to be unfairly dismissed in terms of s185(a) of the LRA
  • not every infringement of a right entails that the employee has a right to a remedy – specifically, an award of compensation is never guaranteed
  • generally, compensation is only applicable if reinstatement or re-employment is precluded

See further, SARS v CCMA 2017 (1) SA 549 (CC)

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?