What are the consequences of the fact that, in the LRA, there is no reference to a right not to be unlawfully dismissed nor are there processes or procedures for the enforcement of such a right?
- As the majority of the constitutional court said in Steenkamp and Others v Edcon Ltd (National Union of Metalworkers of SA intervening) (2016) 37 ILJ 564 (CC), at paragraph , there is no reference in the LRA to a right not to be unlawfully dismissed, nor are there processes or procedures for the enforcement of such a
- Edcon concerned a claim that the dismissals concerned had been unlawful and invalid because the employer had acted in breach of s189A(8). The employer conceded that it had breached the provision concerned, but contended that, although this may have rendered the resultant dismissals unfair, the LRA did not contemplate invalid dismissals, nor did it empower the labour court to grant orders declaring a dismissal invalid and of no force and The constitutional court upheld this position, noting that s191 of the LRA sets out the dispute procedure to be followed to resolve unfair dismissal disputes, but nowhere is there a procedure to be used for the validity or lawfulness or otherwise of a dismissal (see paragraph ).
- Edcon further concerned a conceded breach of the LRA. In essence, the constitutional court held that the LRA establishes its own remedies for breaches of its provisions, confined as they
- For example, s77(3) of the Basic Conditions of Employment Act 75 of 1997, as amended (‘BCEA’), provides that the labour court has concurrent jurisdiction with the civil courts to determine disputes that concern contracts of employment. Such disputes may well contemplate declarations of invalidity sought consequent on a breach of contract. are to fairness. But the labour court is accorded jurisdiction in respect of other statutes, where the lawfulness, legality or validity of employer or employee action may well be placed in issue.
- On the other hand, in Malinga and Others v KwaZulu-Natal Provincial Department of Education and Others (2020) 31 SALLR 101 (LC), the applicants’ pleadings disclosed no more than an averment that the department had acted in breach of its own circulars and that, in consequence, the termination of the applicants’ employment was The applicants’ claim was not one in contract, nor was it a claim of a breach of a fundamental right and nor was it a review. In short, there was no cause of action anchored in the LRA or any statute that, for the purposes of s157(1) of the LRA, conferred exclusive or concurrent jurisdiction on the labour court. In these circumstances, the labour court had no jurisdiction to entertain the present application.
On what basis did the labour court recently hold, in De Kock v CCMA and Others (2019) 30 SALLR 177 (LC), that insubordination destroys the relationship of trust, mutual confidence and respect, and generally makes the continued employment relationship intolerable?