DOUBLE DIPPING: Can an employee claim compensation for unfair dismissal and unfair discrimination in the same case?

DOUBLE DIPPING: Can an employee claim compensation for unfair dismissal and unfair discrimination in the same case?

The Labour Court[1] recently confirmed that the two types of claims can indeed be made in the same case. The case concerned an employee who was dismissed by ABSA for gross misconduct. An internal enquiry had found her guilty of harassing and bullying her subordinates. She referred to individuals as “monkeys” and handed out inappropriate “gifts” of a sexual nature. She threatened employees’ jobs and made racist, ageist and other inappropriate comments about management who she referred to as “boere”, “oxygen thieves” and “old white men who do not know what they’re doing”.

The employee claimed she was treated differently and dismissed because of her race and because she promoted transformation. She claimed automatically unfair dismissal under the LRA and unfair discrimination under the EEA. The claims were joined into one case in the Labour Court. But before the trial started, the employer argued that both claims were fatally defective and could not be heard at the same time.

The LC disagreed. It said an applicant can bring a claim for unfair dismissal under the LRA and a claim for unfair discrimination under the EEA at the same time on the same set of facts. However, the question whether compensation should be awarded as a remedy under both Acts was a different issue. In [2]the LAC had disapproved of “double dipping” – double compensation under both the LRA and the EEA. It said where there has been both an automatically unfair dismissal and unfair discrimination the court should not consider separate compensation under the LRA and the EEA. It should instead consider what is just and equitable for the indignity the employee has suffered. In this way, the employer is not penalised twice for the same wrong. The court should make a single determination which is just and equitable compensation for the single wrongful conduct.

TIP: An employee who wishes to claim unfair dismissal under the LRA and discrimination under the EEA should combine the claims as Claim 1 and Claim 2 in one application to the Labour Court. The court will consider the merits of both claims what compensation would be fair and just. If the court finds merit in both claims, the value of compensation would probably a lot higher. This is because the maximum for unfair discrimination is 24 months’ salary.

[1] Simmadari v Absa Bank Limited (C124/17, C728/16) [2018] ZALCCT 7 (6 March 2018)

[1] ARB Electrical Wholesalers v Hibbert,

Patrick Deale
Labour Lawyer & Mediator

 

Patrick Deale
Labour Lawyer & Mediator
Tel:0833758771
Email:  patrick@deale.co.za
 

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