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.

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)?