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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)

September 7, 2026

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

August 31, 2026

What is the difference between desertion and abscondment?

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?