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))

March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.