Article 41/2023

The previous three articles respectively dealt with compensation in terms of s193(2)(d) of the LRA, compensation when s193(2)(a) to s193(2)(c) of the LRA are applicable and remedies so available to a successful applicant in an unfair labour practice action.

Contrary to the above, what are the specific remedies available to a successful applicant in an automatically unfair dismissal or unfair discrimination dispute?

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The following is a summary of such remedies:

  • in terms of s194(3) of the LRA, when the dismissal is automatically unfair, the remedy of compensation entails same being just and equitable in all circumstances but not more than 24 months’ remuneration
  • however, in terms of unfair discrimination (s50(2) of the EEA), the remedy entails same being just and equitable, including compensation and damages

(see, further, BMW (SA) (Pty) Ltd v NUMSA (2020) 31 SALLR 119 (LAC); [2020] 11 BLLR 1079 (LAC), ARB Electrical Wholesalers v Hibbert (2015) 26 SALLR 14 (LAC)

  • compensation, when dealing with an automatically unfair dismissal, or, alternatively, unfair discrimination, is akin to the awarding of compensation for non-patrimonial losses – the labour appeal court, in Minister of Justice and Constitutional Development v Tshishonga [2009] 9 BLLR 862 (LAC), thus indicated some of the important factors to be taken into account when determining such compensation, which include the following:
    • the nature of the infringement
    • the seriousness of the infringement
    • the circumstances under which the infringement took place
    • the behaviour of the employer
    • the extent of the employee’s humiliation or distress
    • the effect of the conduct of the employer on the employee
    • the employer’s attitude subsequent to the unfair dismissal or unfair discrimination

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).