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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))

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?