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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
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?