Forgot your Password?  |  Forgot your User Name?

vzr-facebook

ARTICLE 8

In the scenario where an employer has created contractual obligations regulating discipline, such as, for instance, a disciplinary code and procedure, as well as personnel regulations and, furthermore, incorporated these obligations into its employees’ contracts of employment, is an employer entitled to disregard these contractual obligations and proceed to implement discipline against its employees only in terms of Schedule 8 of the Labour Relations Act?

The aforesaid factual scenario was duly considered in Solidarity and Others v SA Broadcasting Corporation.[1]

This article contains a summary of the most important principles established by this judgment and, furthermore, particularly deals with the following:

(a)      seeing that the employees in casu based their claim on the unlawfulness of the employer’s conduct, what is the appropriate relief?;

(b)      on what basis is reinstatement not an appropriate order in the above circumstances?; and

(c)      what is the appropriate approach to deal with people holding office who deliberately choose to ignore compliance with an employer’s contractual obligations.

SOLIDARITY AND OTHERS v SA BROADCASTING CORPORATION (SUPRA)

1.       The labour court held in casu that, in the scenario where an employer has created contractual obligations regulating discipline, such as, for instance, a disciplinary code and procedure, as well as personnel regulations, and incorporated these obligations into employees’ contracts of employment, an employer is not entitled to disregard these contractual obligations and proceed to implement discipline against employees only in terms of Schedule 8 of the LRA.

2.       According to the labour court in casu, the constitutional court judgment of Steenkamp and Others v Edcon Ltd[2] does not affect the jurisdiction of the labour court to grant relief in the scenario where an employee alleges that his or her employer breached the relevant contractual obligations and, therefore, such action is unlawful.

3.       The labour court in casu with approval followed the approach adopted in Ngubeni v National Youth Development Agency and Another[3] and Dyakala v City of Tshwane Metropolitan Municipality.[4]

4.       Identified relevant statutory provisions

(a)      In terms of s77(3) of the BCEA, the labour court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether or not any basic condition of employment constitutes a term of such contract.

(b)      In terms of s77A(e) of the BCEA, the powers of the labour court include the power to make an appropriate order, including an order making a determination that it considers reasonable on any matter concerning a contract of employment in terms of s77(3) of the BCEA, which determination may include an order for specific performance, an award of damages or an award of compensation.

5.       In terms of s157(2) of the LRA, the labour court also has concurrent jurisdiction with the high court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution and arising from employment and labour relations.

6.       With reference to Steenkamp and Others v Edcon Ltd,[5] the labour court in casu determined that the appropriate relief in the scenario where a claim rests on unlawfulness, is that dismissals should be nullified and, furthermore, stated the following:

(a)      seeing that an invalid dismissal is a nullity in the eyes of the law, an employee whose dismissal is invalid will be regarded as never having been dismissed;

(b)      thus, it means that the said employee remains in his or her position in the employ of the employer, unlike an employee whose dismissal has been branded to be unfair that requires an order of reinstatement.

7.       In Gauteng Gambling Board and Another v MEC for Economic Development, Gauteng,[6] the following was stated by the supreme court of appeal at paragraph [54]:

‘It is time for courts to seriously consider holding officials who behave in the high-handed manner described above, personally liable for costs incurred.  This might have a sobering effect on truant public office bearers...’

8.       With reference to the above, the labour court in casu held the viewpoint that if it appears that an individual, acting on behalf of an employer, behaved recklessly when dismissing an employee in non-compliance with an employer’s contractual obligations, it should be investigated as to whether or not such individual should be held personally liable for part or whole of the costs of the application brought by the dismissed employee against the employer.


[1]          (2016) 37 ILJ 2888 (LC); [2017] 1 BLLR 60 (LC); (2016) 27 SALLR 34 (LC)

[2]          (2016) 37 ILJ 564 (CC)

[3]          (2014) 35 ILJ 1356 (LC)

[4]          J572/15

[5]          Supra

[6]          2013 (5) SA 24 (SCA)

© SALLR 2018