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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)

August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?