Just and equitable remedy: In all the circumstances

N v SA Mint (Rf) (Pty) Ltd

(JS475/2022) [2024] ZALCJHB 445; (2025) 46 ILJ 964 (LC) (4 November 2024) per R Itzkin AJ.

Excerpt regarding awarding compensation ito ss 193-195 of LRA [and possibly relevant to costs as well]:

“[115]  In an academic commentary, Professor Rochelle le Roux opines that the meaning of ‘just’ is as follows:

[R Le Roux, ‘Getting Clarity: The Difference between Compensation, Damages, Reinstatement and Backpay’ (2011) 32 ILJ 1520 at pp 1537 – 1538.]

‘When exploring the meaning of “just” … the starting point should be

    • the injustice (unfairness) suffered by the employee,
    • whether or not it was a no-fault dismissal, and
    • whether it concerns procedural or substantive unfairness or both.

The focus should be on

  • the conduct of both parties in relation to the unfairness and
  • the harm (patrimonial and non-patrimonial) that followed.
    • Were the actions of the employer malicious, insensitive or honourable?
    • To what extent did the employee’s actions contribute to the dispute?
    • Does the unfairness involve the infringement of constitutional rights…? …
    • Another important consideration would be whether patrimonial and non-patrimonial loss was caused by the unfairness.’

[116]  Regarding the meaning of ‘equitable’, Professor Le Roux states the following: [Ibid 1538].

‘Determining what is equitable requires the focus to shift away from the unfairness and to reflect more broadly on the

    • interests of the employer,
    • employee,
    • workplace and
    • occasionally society at large.

Here the behaviour of the employer and employee before and after the unfairness will be important considerations.

Such behaviour will include,

    • amongst other behaviours,
    • a dismissed employee’s unreasonable refusal to accept an offer of reinstatement,
    • or his or her obstruction of other forms of redress;
    • good faith efforts by the employer to correct a procedural irregularity or to offer redress;
    • prior efforts by the employer to implement workplace policies to address different forms of unfair workplace conduct;
    • risks taken by the employee;
    • length of service; and
    • the financial implications for the workplace and other employees.

The size and the identity of the employer may also be relevant in this enquiry …

Although it is not only the interests of the employer that are relevant, the requirement of equitability can to some extent be seen as a means of showing some sympathy (or lack of it) for the employer [Sic].’

[117]  Regarding the criterion of ‘in all the circumstances’, Professor Le Roux states the following: [Ibid 1539].

‘This should be seen as endorsement that

    • not only circumstances pertaining to the unfairness,
    • but also considerations removed from it, and
    • perhaps even removed from the workplace itself,

may play a role in the final computation of compensation.’

[118]  Applying these considerations to the facts of this matter, I have concluded that an award of two months’ remuneration as compensation would be just and equitable for the procedural unfairness suffered by Messrs N and L.”

. . . . .

“[121]  Finally, concerning the issue of costs, both parties have been partially successful, and considerations of law and fairness militate against a costs order being made.”