Article 06/2021

Labour Edge

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:

  1. in terms of the LRA, the relief is for reinstatement, whereas, in terms of the BCEA, it is for specific performance;
  2. 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;
  3. in terms of the BCEA, the onus is on the employee, whereas, in terms of the LRA, the onus is on the employer;
  4. 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
  5. 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 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)?