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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.