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
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.