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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)

November 9, 2026

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

November 2, 2026

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

October 26, 2026

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?