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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)

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?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?