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South Africa - Avenues for redress (penalties, remedies) and litigation procedure for individual complaints

Avenues for redress (penalties, remedies) and litigation procedure for individual complaints - South Africa - 2019    

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Compensation for unfair dismissal - free determination by court: No

  • See sec. 194 LRA.

Compensation for unfair dismissal - Legal limits (ceiling in months or calculation method):
1) Compensation for unfair dismissals (unfair reasons or unfair procedure): not more than 12 months' wages calculated at the employee's rate of remuneration on the date of dismissal.

2) Compensation for automatically unfair dismissals (those based on prohibited grounds): not more than the equivalent of 24 months' wages.

  • Sec. 194 LRA.

Reinstatement available: Yes

  • Sec. 193(1) a) and (2) LRA.
    Reinstatement or re-employment is mandatory unless:
    (a) the employee does not wish to be reinstated or re-employed;
    (b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;
    (c) it is not reasonably practicable for the employer to reinstate or re-employ the employee; or
    (d) the dismissal is unfair only because the employer did not follow a fair procedure.

Preliminary mandatory conciliation: Yes

  • Pursuant to sec. 191 LRA, within 30 days of the date of the dismissal, the employee may refer the dispute about the fairness of the dismissal to a special bargaining council or to the Commission for Conciliation, Mediation and Arbitration, if no council has jurisdiction which must attempt to resolve the dispute through conciliation. If the council or the Commission does not succeed in resolving the dispute through conciliation, it is referred to arbitration by the Commission or adjudication by the Labour Court depending on the nature of the dispute (see below).

Competent court(s) / tribunal(s): labour court

  • The LRA establishes an independent, tripartite Commission for Conciliation, Mediation and Arbitration (CCMA) [see below] and a Labour Court (Chapter VII of the LRA) which both have jurisdiction over disputes of unfair dismissals depending on the nature of those dismissals (see sec. 191 (5) LRA.)
    If conciliation fails, the dispute will be referred to the Labour Court for adjudication if the employee has alleged that the reasons for dismissal are: (i) automatically unfair (see prohibited grounds); (ii) based on the employer's operational requirements (includes economic reasons); (iii) the employee's participation in a strike; or (iv) because the employee refused to join, was refused membership of or was expelled from a trade union party to a closed shop agreement.

    In addition, sec. 191(6) LRA states that the director of the Commission must refer the dispute to the Labour Court, if the director decides, on application by any party to the dispute, that to be appropriate after considering-
    (a) the reason for dismissal;
    (b) whether there are questions of law raised by the dispute;
    (c) the complexity of the dispute;
    (d) whether there are conflicting arbitration awards that need to be resolved;
    (e) the public interest.

    In the case of dismissals adjudicated by the Labour Court, an appeal against the decision of the Court is possible. Appeals from the Labour Court will be heard by the Labour Appeal Court.

    Common law claims for breach of contract in the ordinary civil courts are also possible.

Existing arbitration: Yes

  • See sec. 191 5 (a) LRA on mandatory arbitration.
    the bargaining council or CCMA for arbitration if (i) the employee has alleged that the reason for dismissal related to the employee's conduct or capacity, (ii) the employee has alleged that the reason for dismissal is that the employer made continued employment intolerable or the employer provided the employee with substantially less favourable conditions or circumstances at work after a transfer, (iii) the employee does not know the reason for dismissal; (iv) the dispute concerns an unfair labour practice.