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Article 7/2025

What is the difference between compensation (in terms of s193(1)(c) and s194(1) of the LRA) and back pay?

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The constitutional court, in Booi v Amathole District Municipality (2022) 32 SALLR 51 (CC), made it clear that compensation and back pay are two very different remedies and, in this regard, furthermore, indicated the following:

  • compensation is to be awarded if the dismissal is found to be unfair because:
    • the employer did not prove that the reason for the dismissal was a fair reason relating to the employee’s conduct or capacity, or the employer’s operational requirements (i e the dismissal being substantively unfair), or
    • the dismissal is procedurally unfair, or
    • the dismissal is both substantively and procedurally unfair
  • compensation awarded must be just and equitable in all circumstances
  • however, it may not be more than 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal and, in the case of an automatically unfair dismissal, may not be more than 24 months’ remuneration so calculated on the date of dismissal
  • however, in respect of back pay, there is no such capping in terms of s194(1), read together with s194(3), of the LRA and, in this regard, the following principles are applicable:
    • back pay is not to be calculated from a date earlier than the dismissal date
    • the amount of back pay is to be determined with reference to the amount of money that the employee was ‘out of pocket’ during the period of employment – entailing, if the employee did not suffer such loss, there should not be any back pay
    • the amount of back pay must also be just and equitable

See, further, Union for Police and Security Corrections Organisation v SA Custodial Management (2021) 42 ILJ 2371 (CC)

October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?