Article 8/2025

What are some of the more important considerations when determining compensation for procedural and substantive unfairness being present?

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With reference to Liebowitz v Fernandes (2002) 23 ILJ 278 (LAC), the constitutional court, in McGregor v Public Health and Social Development Sectoral Bargaining Council (2021) 32 SALLR 33 (CC), adopted the following approach in determining compensation in terms of s193(1)(c), s194(1) and s194(3) of the LRA when substantive unfairness is present in a dismissal :

  • the nature and extent of the misconduct is an important factor – e g continuing late coming is to be treated differently from, for instance, sexual harassment
  • consideration should also be paid to the attitude of the employee
  • if the misconduct is serious, notwithstanding procedural unfairness, compensation should not be awarded or, alternatively, it should be limited substantially

In the above judgment, the constitutional court adopted the following approach in determining compensation when the dismissal is procedurally unfair :

  • the most important factor to be considered is the degree of deviation from the required procedural fairness yardstick
  • if the degree of deviation is insignificant, same would lead to a small potential influence on the amount of compensation
  • on the other hand, if the degree of deviation is significant, same will have a greater potential influence on the amount of compensation
June 12, 2025

In terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

June 5, 2025

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

May 29, 2025

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?