Waglay JP in ARB Electrical Wholesalers (Pty) Ltd v Hibbert (DA3/13) [2015] ZALAC 34 (21 August 2015) at paras [30] and [37] with footnotes omitted.
Where claims are made both in terms of the LRA and the EEA and the court is satisfied that the dismissal was based on unfair discrimination as provided for in the LRA and that the employee was unfairly discriminated in terms of the EEA, the court must ensure that the employer is not penalised twice for the same wrong.
In seeking to determine compensation under the LRA and the EEA, the court must not consider awarding separate amounts as compensation but consider what is just and equitable compensation that the employer should be ordered to pay the employee for the humiliation he/she suffered in having his/her dignity impaired. The employee’s automatically unfair dismissal is so labelled because it is based on a violation of his constitutional right (in this case not to be discriminated on the basis of his age) and his claim under the EEA is for exactly the same wrong that of being discriminated on the basis of his age.
. . . . .
In the circumstances, Appellant was genuinely of the view that the early retirement was a more dignified way of ending the Respondent’s employment than taking corrective action against the Respondent who was not only more senior to most of the staff and directors in Appellant’s employ but was one of the founding shareholders of the Appellant. In taking this route, the Appellant erred because our Labour laws are very clear: the employer must deal with what is the real issue between it and its staff and not, no matter how honourable the intention may be, use another untrue reason to end the employment relationship.