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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))

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?