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Article 05/2021

Labour Edge

A claim in the labour court is for the payment of damages arising from a breach of contract, whereas a claim before the CCMA or the bargaining council is for reinstatement, alternatively, compensation.  How did the labour appeal court recently, in Archer v Public School – Pinelands High School and Others, deal with these two different claims?

  1. The appellant had not been precluded by the principle of res judicata from pursuing his two claims in different fora. This was because the claim that had been before the labour court, and the one pursued in the CCMA, had not been the same claims. The one was for payment of damages arising from a purported breach of contract by the first and second respondents, and the other was for compensation arising from an unfair dismissal as envisaged under the LRA. The two claims did not have the same cause of action. The pleadings bore this out.
  2. It follows from this that the labour court erred in concluding that it lacked jurisdiction to determine the appellant’s contractual claim because an employee could not, after unsuccessfully pursuing a case in the CCMA, based on the existence of an alleged unfair dismissal, approach the labour court on the basis that the termination of his employment contract did not constitute a dismissal in law.
  3. The labour court furthermore went astray in concluding that ‘the architecture of our employment law would be breached if the appellant were allowed to pursue a new cause of action in the labour court after his unfair dismissal claim was dismissed by the CCMA’.
  4. The LRA has not extinguished remedies available to employees from their contracts of employment. This much is clear from s77(3) of the BCEA, the impact of which is that employees are (in addition to pursuing their rights in terms of the LRA) free to pursue claims in the high court or labour court arising from their contracts of employment.
  5. Equally, s195 of the LRA provides that an award of compensation made in terms of Chapter VIII of the LRA is in addition to, and not a substitute for, any other amount which the employee is entitled to in terms of any law, collective agreement or contract of employment.
  6. An award of compensation made in terms of the LRA is for an unfair dismissal or an unfair labour practice. As this may be less than the amount that the employee can claim for breach of contract, the employee may, in addition to having being awarded compensation under the LRA, claim additional compensation which he or she may be entitled to in terms of any law, collective agreement or contract of employment.
  7. Section 195 of the LRA recognises that claims for unfair dismissal and unfair labour practice are distinct from claims for the enforcement of contracts of employment, and that employees may claim both compensation for unfair conduct and damages for breach of contract, if applicable.
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?