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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)

July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?