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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?

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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)

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