An employee is not obliged to challenge the procedural unfairness of his or her dismissal in the CCMA. The employee may also challenge the non-compliance of such procedure with the contractual obligations of an employer. Such challenge will occur in the labour court and will be for specific performance or the cancellation of the agreement and a claim for damages. On what basis did the labour court recently, in Wereley v Productivity South Africa and Naidoo NO (2020) 31 SALLR 103 (LC), hold that it is a conceptual mistake to collapse these two causes of action simply because they both concern procedural non-compliance?
- It is trite that noncompliance with disciplinary procedures might lead to a finding that a dismissal was procedurally unfair, but the power of an arbitrator is limited to awarding compensation. The CCMA is not empowered to determine the contractual lawfulness of a decision to dismiss an employee, in the absence of complying with a contractually binding pre-dismissal procedure. The contractual remedies for noncompliance with an obligatory procedure remedies are not equivalent to the remedy for procedurally unfair dismissal in the LRA.
- In this regard, in Ngubeni v National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC), at paragraph , the court held, that; ‘Insofar as the remaining requirements relevant to the relief sought are concerned, there is no alternative remedy that is adequate in the circumstances. Ngubeni has no right to pursue a contractual claim in the CCMA, and the law does not oblige him to have recourse only to any remedies that he might have under the LRA. Equally, he is fully entitled to seek specific performance of his contract, and is not obliged to cancel the agreement and claim damages.’
- On the basis of the above differences, Legrange J, in Wereley, held that It is a conceptual mistake to collapse the two causes of action simply because both concern issues of procedural noncompliance.
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?