CCMA arbitration of
discrimination disputes
and appropriate remedies
SASLAW Conference
20 September 2014
Questions
 Does compensation really restore impaired dignity?
 Should compensation be based on salary - less if you
earn less, and more if you earn more?
 What is an appropriate remedy for unfair
discrimination?
 Room for restorative justice?
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Acknowledgement
 Rochelle Le Roux ‘Getting Clarity: The Difference
Between Compensation, Damages, Reinstatement
and Backpay’ (2011) 32 ILJ 1520.
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CCMA jurisdiction
Section 10 (as amended)
 Arbitration by election of all sexual harassment cases
 Arbitration by election of unfair discrimination cases
under the threshold
 Arbitration by agreement of unfair discrimination
cases at or over the threshold
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LRA Remedies
 Dismissals: Compensation, reinstatement, re
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employment
Caps on compensation
Broad discretion as regards remedies for ULPs
“appropriate”; “just and equitable”
Compensation under the LRA is for both pecuniary
and non-pecuniary loss
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EEA Remedies
 Powers of commissioners
 Section 48 of the EEA:
 Any appropriate arbitration award that gives effect to
a provisions of this Act.
 An award on discrimination may include any order
referred to in section 50(2)(a) to (c), read with the
changes required by the context,
 But an award of damages referred to in section
50(2)(b) may not exceed the BCEA threshold.
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EEA Remedies
 Section 50 deals with the powers of the Labour
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Court.
Any appropriate order that is just and equitable in the
circumstances, includingPayment of compensation
Payment of damages
An order directing the employer to take steps to
prevent the same unfair discrimination or a similar
practice occurring in the future in respect of other
employees.
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Remedies Guideline
 The commissioner should inform the applicant of all
available remedies.
 Failure to include a claim for damages or
compensation in the referral form does not prevent
the employee from including such claim at the
commencement of the arbitration hearing.
 The remedies in the LRA should not be confused with
the remedies in the EEA. However, both provide for
an award which is “just and equitable”.
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Patrimonial and nonpatrimonial loss
 Compensation should be awarded for breach of a
statutory right whereas damages should address
patrimonial loss.
 In Reynhardt v University of South Africa [2010] 12
BLLR 1272 (LAC) the court ordered compensation for
non-patrimonial loss and damages for patrimonial
loss.
 South Africa Airways (Pty) Ltd v V and Another
(CA9/13, C420/2006) [2014] ZALAC 27; [2014] 8
BLLR 748 (LAC) (12 June 2014)
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Compensation
 Two casus of action from the same set of facts:
When awarding compensation in terms of the EEA,
any amount ordered in terms of the LRA should be
taken into account as the award must be just and
equitable.
 Compensation for unfair discrimination in terms of the
EEA is not capped.
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Compensation cont.
 Compensation is intended to remedy the breach of a
statutory right - akin to a “solatium” for nonpatrimonial loss, injury to dignity, and to compensate
for unfair treatment.
 It is recommended that commissioners move away
from common law concepts of special and general
damages, etc and use terms “compensation”,
“damages” and “just and equitable in all the
circumstances”.
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“Just and equitable”
 “Just” refers to the injustice or unfairness suffered,
non-fault or intent of the employer, malice,
insensitivity or honourable intentions, harm.
 “Equitable” refers to the broader interests and
conduct of the employee and employer before and
after the unfairness. Eg redress offered, financial
implications, size of employer.
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Calculating compensation
 What is just and equitable in the circumstances?
Balance the unfairness suffered with broader
interests.
 Compensation is not redress for loss but loss
suffered may impact on the assessment of what is
“just” in the circumstances – to assess harm.
 Compensation should not be calculated on a certain
number of months’ remuneration as this suggests
that a lower income earner’s right to equality is
valued lower than that of a higher income earner.
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 Dikoko v Mokhatla 2006 (6) SA 235 (CC)
“There is something conceptually incongruous in
attempting to establish a proportionate relationship
between vindication of a reputation, on the one hand,
and determining a sum of money as compensation,
on the other. The damaged reputation is either
restored to what it was, or it is not. It cannot be more
restored by a higher award, and less restored by a
lower one. It is the judicial finding in favour of the
complainant that vindicates his or her reputation, not
the amount of money he or she ends up being able to
deposit in the bank….”
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Fourie v Capitec Bank
 Fourie v Capitec Bank [2005] 1 BALR 29 (CCMA)
Dismissal case. Commissioner cited Ngcobo J in the
matter of Hoffmann v SA Airways1 (2000) 21 ILJ 2357
(CC):
“Fairness requires a consideration of the interests of all
those who might be affected by the order. In the context
of employment this will require a consideration not only
of the interest of the employee but also the interest of
the employer”.
“The determination of appropriate relief, therefore, calls for
the balancing of the various interests that might be
affected by the remedy.”
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Fourie case, citing Hoffman
“The balancing process must at least be guided by the
objective, first, to address the wrong occasioned by
the infringement of the constitutional right; second, to
deter future violations; third, to make an order that
can be complied with, and fourth, of fairness to all
those who might be affected by the relief. Invariably,
the nature of the right infringed and the nature of the
infringement will provide guidance as to the
appropriate relief in the particular case.”
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Damages
 Damages ordered by a commissioner is capped at
the BCEA threshold.
 The cap applies irrespective of whether arbitration is
by election (earns less than the threshold) or
agreement (the employee earns at or above the
threshold).
 Damages is intended to address patrimonial loss –
must be proved through evidence.
 Damages may include future loss, for example loss of
future income.
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Order to take steps
 Commissioners are encouraged to make an order
directing the employer to take steps to prevent the
same unfair discrimination or a similar practice
occurring in the future in respect of other employees.
 This is an opportunity to dispense restorative justice
and address systemic discrimination.
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Restorative justice
Albie Sachs
“If the Constitution itself was the product of achieving
dialogue… it should be interpreted in a way that
foster(s) resolving disputes through dialogue.”
“The principle of getting people to look each other in the
eye, and not shrink from dealing with the most
grievous problems, became … entrenched in our
culture.”
“(T)hose who negotiated the Constitution made a
deliberate choice, preferring understanding over
vengeance, reparation over retaliation, ubuntu over
victimisation.”
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Restorative justice cont
“What is called for is greater scope and encouragement
for enabling the reparative value of retraction and
apology to be introduced into proceedings. (T)his
would necessitate reconceiving the available
remedies so as to focus more on the human and less
on the patrimonial dimensions of the problem. The
principle goal should be repair rather than
punishment.
 “These concepts harmonise well with processes well
known to traditional forms of dispute resolution in our
country, processes… underpinned by the philosophy
of ubuntu-botho.”
Dikoko v Mokhatla 2006 (6) SA 235 (CC)
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Restorative justice cont.
 Create conditions to facilitate the achievement of
“an apology honestly offered,
and generously accepted”.
Albie Sachs
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