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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
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)?