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Article 04/2021

Labour Edge

A claimant has a potential claim for enforcement of an LRA right (enforceable only in a labour forum) as well as a potential claim for enforcement of a right falling outside the LRA (enforceable either in the high court or labour court).  These claims can be pursued simultaneously or sequentially.  What is the basis of such approach, recently confirmed by the labour appeal court in Archer v Public School – Pinelands High School and Others (2019) 30 SALLR 28 (LAC)?


  1. In relation to the question of the jurisdiction of the labour court and the high court to determine matters concerning a contract of employment, the supreme court of appeal, in Makhanya v University of Zululand (2009) 30 ILJ 1539 (SCA), observed that:‘[35]   The first case that came before this court that purported to raise a jurisdictional challenge of this nature was Fedlife.  Other cases followed that also purported to raise such jurisdictional challenges, which include United National Public Servants Association of SA v Digomo NO, Boxer Superstores, Mthatha v Mbenya, Fredericks v MEC for Education and Training, Eastern Cape, and they continue with a regularity that is becoming alarming. Upon proper analysis none of those cases was about jurisdiction at all. They were about whether the claimant had a good claim in law.[36]    All those cases, as well as this case and Chirwa, have three features in common. The first is that the claimant was an employee. From that arises the second common feature, which is that the claimant had an LRA right. The third is that the claimant asserted that he or she also had a right that arose outside the terms of the LRA. (I do not say that the claimant necessarily had the right that was asserted. I say only that he or she asserted that right.) That right in each case was either the right at common law to exact performance of a contract, or it was the constitutional right to just administrative action.[37]    The claim in each case arose from the termination of the contract of employment. That fact had the potential to found a claim for relief for infringement of the LRA right. But it also had the potential to found, in addition, a claim for relief for infringement of the other right that was asserted. Thus in every case the claimant had a potential claim for enforcement of an LRA right (which was enforceable only in a Labour Forum). In every case the claimant also had a potential claim for enforcement of a right that fell outside the LRA (enforceable either in the high court or in the labour court).

    [38]    It follows from this that the claimant in each case was capable of pursuing both claims in the labour court, either simultaneously or in succession (because they were different claims). In one claim the labour court (as one of the Labour Forums) would be asked to enforce an LRA right (falling within the exclusive power of the Labour Forums). And in the other claim it would be asked to enforce a right falling outside the LRA (but within the concurrent jurisdiction of the labour court). Similarly, the claimant would have been capable of bringing one claim (the claim to enforce an LRA right) in a Labour Forum and to bring the other claim (for enforcement of the right arising outside the LRA) simultaneously, or sequentially, in the high court.

    [39]      None of that should evoke surprise. It is the natural consequence of a claimant asserting two claims, each of which is capable of being brought in a different forum. That two claims arising from common facts might be asserted, whether separately or in the alternative, is not unusual. Whether the assertion will succeed is another matter, but that is irrelevant to the jurisdictional question.’

Section 187(1)(f) of the LRA reads as follows: ‘A dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including but not limited to religion, conscience and belief”.

In terms of s187(2)(a) of the LRA, despite the aforesaid s187(1)(f), a dismissal may be fair if the reason for the dismissal is based on the inherent requirements of a particular job.

What approach is to be followed to determine, firstly, whether the reason for the dismissal on the basis of religion, conscience or belief is based upon an inherent requirement of a particular job?

And, secondly, what approach is to be followed to determine whether or not an employer complied with its duty to reasonably accommodate the aforesaid category of employees?

In the previous article, we set out the traditional approach to s187(2)(b) of the LRA, covering the scenario where an employee reached the normal or agreed-upon retirement age, but continued to work beyond such age. The constitutional court, in Motor Industry Staff Association and Another v Great South Auto Body CC t/a Great South Panelbeaters (Landman); Solidarity obo Strydom and Others v State Information Technology Agency Soc Ltd (Solidarity) – combinedly referred to as Landman; Solidarity – had the opportunity to scrutinise such traditional approach and delivered three conflicting judgments. So, what approach should role players now employ, seeing that consensus was not reached in the constitutional court?

In terms of s187(1)(f) of the LRA, a dismissal is automatically unfair if the reason for the dismissal is that the employer unfairly discriminated against the employee, directly or indirectly, on any arbitrary ground, including, but not limited to, age.

In terms of s187(2)(b) of the LRA, despite s187(1)(f), dismissal, based on age, is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity.

What is the approach traditionally adopted where an employer permits an employee to work beyond the normal or agreed-upon retirement age and subsequently wishes to terminate the services of the employee, based on age, and wishes to rely on the defence as set out in s187(2)(b)?