Article 42/2023

From article 41/2023, it is evident that a successful applicant in terms of an unfair discrimination claim (evaluated in terms of the EEA) is entitled to both compensation and damages, whereas, if the claim was considered in terms of the LRA (on the basis of being an automatically unfair dismissal in terms of s187(1)(f) of the LRA) the employee would not be entitled to a damages claim.

What is the distinction between compensation and damages awarded in terms of the EEA and compensation awarded for an automatically unfair dismissal in terms of the LRA?

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In BMW (SA) (Pty) Ltd v NUM (2020) 31 SALLR 119 (LAC), the labour appeal court distinguished between the following two scenarios:

an automatically unfair dismissal in terms of s187(1)(f) of the LRA

  • compensation (and not damages) is the appropriate remedy in terms of s194(3) of the LRA
  • such compensation is required to be just and equitable under all circumstances but, in any case, must amount to no more than 24 months’ remuneration

unfair discrimination in terms of the EEA (when s6 of the EEA is applicable)

  • firstly, the successful applicant is entitled to a damages claim – for the actual or potential monetary loss (i e patrimonial loss)
  • apart from the damages claim, the successful applicant is also entitled to a compensation claim – as a solatium (non-patrimonial loss) for the insult/humiliation/indignity/hurt, etc suffered

(see, further, SA Airways (Pty) Ltd v Janse van Vuuren (2014) 35 ILJ 2774 (LAC)

November 25, 2024

What are the principles governing the vicarious liability of an employer for acts committed by an employee in breach of the EEA, in terms of s60 of the EEA?

November 25, 2024

The scenario is as follows: only employees working at a bakery and not employees working at a mill were party to the disputes when referred to conciliation.  At arbitration, the union wanted to join the employees working at the mill.

Is such joinder permissible?

November 25, 2024

What is the test for unfair discrimination formulated in Harksen v Lane and consistently applied subsequently by the various courts, including, recently, Premier FMCG (Pty) Ltd t/a Blue Ribbon Bakery v FAWU (2022) 33 SALLR 277 (LC); (2022) 43 ILJ 1584 (LC)?