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)

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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?

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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?

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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.