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)
