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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.
November 9, 2026

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?

November 2, 2026

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?

October 26, 2026

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)?