Article 07/2021

Labour Edge

If an employer deems it fit to include elaborate procedures in a contract of employment, which go beyond what is required in terms of the LRA, is the employer entitled to simply revert to the default position of the LRA?


The labour court, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), dealt with this issue as follows: the express incorporation of the code in the employee’s conditions of employment, both in the contract of employment and the code itself, suggested that it had been intended to create enforceable obligations, and not obligations which could simply be jettisoned at the whim of one party. If the content of the procedures was far less detailed and simply provided an opportunity to exercise the right to audi alteram partem within a rudimentary hearing framework, it might be more plausibly argued that the employer enjoyed greater freedom in determining the conduct of an inquiry. That was not the kind of procedure under consideration here. The fact that the employer had seen fit to include such an elaborate procedure in the contract of employment, which went beyond what is required of it in terms of the LRA, did not mean that it could simply revert to the default provisions of the LRA, when its own procedure did not suit it.

 

 

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.