Article 03/2021

Labour Edge

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?

  1. 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 [132], 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
  2. 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 [131]).
  3. 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
  4. 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.
  5. 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.

In Minister of Police v M and Others (2016) 27 SALLR 53 (LC); (2017) 38 ILJ 402 (LC), the labour court identified the content of hearsay evidence of a special type affording greater weight than simple hearsay.  What is the approach adopted by the labour court in such case as to the transcript of an internal enquiry admitted as hearsay evidence in terms of s3(1)(c) of the Law of Evidence Amendment Act?  Subsequent to such judgment, the labour court, in Department of Home Affairs v General Public Service Sector Bargaining Council and Others (2019) 30 SALLR 172 (LC); (2019) 40 ILJ 2544 (LC), had the opportunity to apply the approach adopted in the aforesaid judgment to the specific facts of this matter.  In this subsequent judgment, how did the labour court identify such transcript of an internal enquiry as not constituting hearsay of a special type (as required in Minister of Police v M (supra))?

According to the constitutional court, when a referral is made to the CCMA or a bargaining council concerning a dismissal, is it a requirement that the reason for the dismissal (i.e. misconduct, incapacity poor work performance, etc) is also identified in order for such CCMA or bargaining council to require the requisite jurisdiction?

What are the principles governing hearsay evidence as contained in the Law of Evidence Amendment Act 45 of 1998 and applied by the labour court in, inter alia, Swiss South Africa (Pty) Ltd v Louw NO [2006] 4 BLLR 373 (LC) and NUMSA v SA Metal & Engineering Industries Bargaining Council and Others (2014) 25 SALLR 4 (LC)?