Article 01/2021

Labour Edge

There is a misconception that the labour court has jurisdiction to entertain any disputes concerning work-related grievances, or to deal with any allegations of unfair conduct by an employer.  How did Van Niekerk J deal with this issue in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC)?

  1. There is a common misconception, especially in relation to urgent applications, that this court has jurisdiction to entertain any dispute that concerns a work-related grievance, or to deal with any allegations of unfair conduct by an employer. This is not the case,
  2. Section 157(1) of the LRA provides:

‘Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.’

  1. Section 157(2) reads as follows:

‘The Labour Court 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 of the Republic of South Africa, 1996, and arising from –

(a)     employment and from labour relations;

(b)     any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the State in its capacity as an employer; and

(c)      the application of any law for the administration of which the Minister is responsible.’

  1. The labour court is a superior court that has authority, inherent powers and standing equal to those of a division of the high court, but only in relation to matters under its jurisdiction (s151(2)). The scope of the court’s exclusive and concurrent jurisdiction is to be determined by reference to s157. It is self-evident that s157 does not confer jurisdiction on the labour court to make orders regarding all and any employer conduct that is alleged to be unfair.

The scenario is as follows: an employee is reinstated, not to the date of his dismissal but limiting the employee’s entitlement to remuneration to 24 months.  The employee argues that he or she is entitled to interest on the back pay payable for the 24-month period in terms of s75 of the Basic Conditions of Employment Act 75 of 1997.  Is the employee, according to Mashaba and Another v Telkom SA Soc Ltd (2020) 31 SALLR 147 (LAC); (2020) 41 ILJ 2437 (LAC), entitled to be paid interest on the back pay from the date of the judgment or, alternatively, entitled to also be paid interest in respect of the periods before the judgment?

A reinstatement order does not in itself reinstate an employee.  How did the labour appeal court recently, in Kubeka and Others v Ni-Da Transport (Pty) Ltd (2021) 32 SALLR 14 (LAC), determine the consequences of such order and how is such reinstatement order enforced?

What is the distinction between s50(2)(a) compensation and s50(2)(b) damages of the EEA and compensation when an automatically unfair dismissal, in terms of s187(1)(f) of the LRA, occurs?