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.

 

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.