What are the five differences between a claim in terms of the LRA and the BCEA, recently identified by the labour appeal court, in Pilanesberg Platinum Mines (Pty) Ltd v Ramabulana (2019) 30 SALLR 165 (LAC)?
These differences are as follows:
- in terms of the LRA, the relief is for reinstatement, whereas, in terms of the BCEA, it is for specific performance;
- in terms of the LRA, compensation is a statutory relief, whereas, in terms of the BCEA, an employee must prove the damages suffered before obtaining monetary relief;
- in terms of the BCEA, the onus is on the employee, whereas, in terms of the LRA, the onus is on the employer;
- in terms of the BCEA, the claim is a contractual one where the onus is on the employee to prove the quantum of damages – it is a misconception that such damages are the amount the employee would have earned until retirement; and
- because contractual disputes, in terms of the BCEA, are civil matters, there is no reason why costs should not follow the result, whereas, in terms of s162 of the LRA, costs are awarded according to the requirements of law and fairness.
In the scenario where an employee alleges that, as a result of a misrepresentation by his or her employer, a termination agreement was concluded, why, according to the labour appeal court in Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), would it be the wrong approach to seek a declarator that the agreement is void and what should be the correct approach?