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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
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?