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ARTICLE 10

What is the consequence of the following wording, namely, ‘...as well as in accordance with the Labour Relations Act, 66 of 1995...’ in a clause contained in an employee’s contract of employment to the following effect: ‘The employer will be entitled to terminate the employee’s employment contract for any sufficient reason recognised in law, provided that the employer must comply with its disciplinary code and procedures, if in the absence of which, the Disciplinary Code and Procedures of the South African Local Government Bargaining Council (“SALGBC”) will apply, as well as in accordance with the Labour Relations Act, 66 of 1995...’?

When a dismissal takes place, does the LRA abrogate an employee’s common law entitlement to enforce contractual rights in respect of such dismissal, entailing that an employee can only challenge such dismissal in terms of the LRA?

Is an employee entitled to enforce his or her contractual rights relating to a dismissal as an alternative or in addition to his or her challenge that the dismissal is unfair?

This article provides answers to the above questions as well as the very pertinent question as to what the consequences are when the content of an employee’s contractual right to a fair hearing is defined with reference to the provisions of the LRA.

MATHABATHE v NELSON MANDELA METROPOLITAN MUNICIPALITY AND ANOTHER:[1] THE UTILISATION BY AN EMPLOYEE OF HIS OR HER CONTRACTUAL RIGHTS IN CIRCUMSTANCES WHERE AN EMPLOYER TERMINATES HIS OR HER EMPLOYMENT

A.      The labour court in casu adopted the following approach:

1.       the relevant clause in the employee’s employment contract read as follows:

‘The Employer will be entitled to terminate the Employee’s employment contract for any sufficient reason recognised in law, provided that the Employer must comply with its disciplinary code and procedures, if in the absence of which, the disciplinary code and procedures of the South African Local Government Bargaining Council (“SALGBC”) will apply, as well as in accordance with the Labour Relations Act, 66 of 1995...’

2.       in casu, the employer’s as well as the SALGBC’s disciplinary code and procedures were not applicable and the dispute concerned the interpretation of the following portion of the aforesaid clause: ‘...as well as in accordance with the Labour Relations Act, 66 of 1995...’;

3.       the labour court held that the fact that the content of the employee’s contractual right to a fair hearing was defined by reference to what is provided in the LRA did not necessarily require the employee to invoke an LRA remedy nor did it deprive such employee of a contractual right – the issue before the court was indeed one as to the nature and content of the contractual right which was defined with reference to the LRA;

4.       the court, with approval, adopted the approach to procedural fairness previously adopted by the labour court in Avril Elizabeth Home for the Mentally Handicapped v CCMA and Others.[2]

B.      A consideration of the issue as to whether or not the LRA abrogated an employee’s common law entitlement to enforce contractual rights

1.       The supreme court of appeal, in Fedlife Assurance Ltd v Wolfaardt,[3] held the viewpoint that the LRA does not deprive employees of their pre-existing common law right to enforce employment contracts, thereby confining them to the remedies contained in the LRA.

2.       In the Mathabathe v Nelson Mandela Bay Metropolitan Municipality judgment,[4] the labour court followed a similar approach and held that the fact that a dismissal is unlawful, but also unfair, is irrelevant when considering the aforesaid legal position.

C.      A dismissed employee has an election to either enforce contractual rights as an alternative or an addition to a challenge that the dismissal is unfair

The supreme court of appeal, in Boxer Superstores Mbatha and Another v Mbenya,[5] and followed with approval in Mathabathe v Nelson Mandela Bay Metropolitan Municipality,[6] held that the dismissed employee is entitled to challenge a dismissal on the grounds that the employer failed to comply with its contractual obligations as an alternative or in addition to any claim that same also constitutes an unfair dismissal in terms of the LRA.

D.      The effect of the constitutional court judgment in Steenkamp and Others v Edcon Ltd,[7] on the entitlement of employees to bring their claims for breaches of the LRA under the LRA

The labour court, in Mathabathe v Nelson Mandela Bay Metropolitan Municipality,[8] did not alter the position that entails that, if a cause of action is based on the breach of LRA obligations, the LRA is applicable, whereas, if same is not the scenario, then the cause of action falls outside the LRA like, for instance, in the law of contract.


[1]          (2017) 38 ILJ 391 (LC); [2016] 12 BLLR 1228 (LC); (2016) 27 SALLR 122 (LC)

[2]          Supra

[3]          2002 (1) SA 49 (SCA)

[4]          Supra

[5]          2007 (5) SA 450 (SCA)

[6]          Supra

[7]          (2016) 37 ILJ 564 (CC)

[8]          Supra

© SALLR 2018