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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
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But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

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