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ARTICLE 7

On the one hand, statutory rights and obligations exist in the employment relationship between an employer and an employee.  Generally speaking, these rights and obligations are created by operation of specific statutory provisions, e.g. s189 and s189A of the LRA, that regulate the principles pertaining to dismissals for operational requirements.

On the other hand, the employment relationship between the employer and employee also consists of contractual rights and obligations created by a valid contract between the parties, excluding a collective agreement.

A typical scenario is where, for instance, an employee has become entitled to certain rights regulating discipline, promotion, benefits, etc, and these are contained in the relevant employer’s policy, practice or procedure and, furthermore, made part and parcel of the employee’s employment contract.

Practitioners are often not aware of the different types of rights and obligations and the different consequences attached to such rights and obligations, including the different approaches to the respective dispute-resolutions.

This article focuses on the various differences between contractual rights and obligations and statutory rights and obligations and has been written with the specific purpose of assisting practitioners in fully appreciating the fact that there are different consequences attached to contractual rights and obligations as opposed to statutory rights and obligations and these differences should be taken into account by both the labour court as well as the Commission for Conciliation, Mediation and Arbitration (‘CCMA’).

CONTRACTUAL RIGHTS AND OBLIGATIONS VERSUS STATUTORY RIGHTS AND OBLIGATIONS

In respect of contractual rights and obligations, the following is of relevance:[1]

1.       such rights and obligations are created by means of a valid contract between the parties, excluding a collective agreement;

2.       a typical scenario is where, for instance, an employee has become entitled to certain rights regulating discipline, promotion, benefits, etc, and these are contained in the relevant employer’s policy, practice or procedure and made part and parcel of the employee’s employment contract;

3.       when an employer breaches these contractual rights and does not comply with is obligations, contractual consequences (and defences) are applicable;

4.       in such an instance, an employee (and, for that matter, also an employer) may claim damages, compensation or, alternatively, specific performance;

5.       the labour court and the high court have concurrent jurisdiction in terms of s77(3), read with ss77A(e) of the BCEA;

6.       in the scenario where an employee alleges that an employer breached the relevant contractual obligations (and, likewise, an employer alleges that an employee breached the relevant contractual obligations), the claim of the applicant is based on the alleged unlawful conduct of the other party; and

7.       should the applicant be successful, the conduct of the party having breached the contractual right and having not complied with the contractual obligation(s) will be branded as unlawful and ab initio void.

In respect of statutory rights and obligations, the following is of relevance:

1.       these rights and obligations are created by operation of a specific statutory provision, e.g. s189 and s189A of the LRA that regulate the principles pertaining to dismissals for operational requirements;

2.       in the scenario where an employee alleges that an employer breached such statutory rights and did not comply with such obligations, statutory consequences and defences are applicable;

3.       in the scenario where the alleged breach of such statutory rights and obligations are based on allegations amounting to an unfair dismissal or unfair labour practice, the claim for the employee is, in essence, to obtain reinstatement, re-employment or compensation;

4.       the CCMA and the labour court have jurisdiction to deal with the alleged disputes in terms of, inter alia, s193, s194 and s195 of the LRA; and

5.       should the employee be successful in the aforesaid scenario, the conduct of the employer will be branded as unfair, as opposed to unlawful had there been a breach of contractual rights and obligations.[2]

 


[1]          South African Football Association v Kwena Darius Mangope (2013) 34 ILJ 311 (LAC); (2012) 23 SALLR 31 (LAC); Value Logistics Ltd v Weinberg and Du Toit (2012) 33 ILJ 849 (HC); (2012) 23 SALLR 1 (HC); Ngubeni v National Youth Development Agency (2012) 35 ILJ 1356 (LC); Dyakala v City of Tshwane Metropolitan Municipality (J572/15)

[2]          Vide, inter alia, Mongezi Tshongweni v Ekurhuleni Metropolitan Municipality (2012) 33 ILJ 2847 (LAC); (2013) 24 SALLR 21 (LAC)

© SALLR 2018