Article 40/2023

What are the remedies available to a successful applicant in an unfair labour practice dispute?

The following represents a summary of such remedies:

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s193(4) of the LRA

  • the arbitrator is required to:
    • determine the dispute on terms that are reasonable and
    • same may include reinstatement, re-employment or compensation

s193(2) of the LRA

  • the primary relief is reinstatement or re-employment, except:
    • where the employee does not so wish for it or
    • the continued employment relationship is intolerable or
    • it is not reasonably practicable to reinstate the employee or
    • the dismissal is only procedurally unfair

further application of s194(4) of the LRA

  • apart from being just and equitable in all circumstances, there is a cap of 12 months’ remuneration

calculation of awarding compensation

  • in awarding compensation, the following principles should be adhered to:
    • if compensation is awarded, it is indeed compensation for non-patrimonial loss
    • entailing that the jurisprudence relating to the award of a solatium in terms of the actio
      iniuriarum is relevant.

(Minister of Justice and Constitutional Development v Tshishonga (2009) 30 ILJ 1799 (LAC)

    • compensation is designed to ‘…compensate the employee who has suffered an attack on his or her dignity and reputation or an onslaught on his or her humanity’
    • taking into account the above, it is therefore not surprising that the following factors may be relevant in calculating the amount of compensation: the seriousness of the infringement on the dignity, the nature and extent of the publication, the reputation of the employee, motives and conduct of the employer

(see, further, Mogale and Others v Seima 2008 (5) SA 637 (SCA)

    • in awarding compensation, the following further guidelines should be adopted:
      • the award must attempt to place the employee in the position that he or she would have been had it not been for the unfair labour practice
      • there is also a duty on the employee to mitigate his or her loss

(see, further, Solidarity obo Kerns v Mudau NO (2007) 28 ILJ 1146 (LC), Ferodo (Pty) Ltd v
De Ruiter (1993) 14 ILJ 974 (LAC))

On what basis will a client of a labour broker be held vicariously liable for the injuries suffered by an employee employed by a labour broker when such employee performs functions at the client’s workplace?

Is an employer vicariously liable where its employee is sexually harassed by a superior employee?

It is well-established that an employer is vicariously liable (faultlessly liable) for the wrong committed by an employee during the course/scope/sphere of employment (Feldman v Mall 1945 AD 733).