Article 09/2021

Labour Edge

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?


  1. 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.
  2. In this regard, in Ngubeni v National Youth Development Agency and Another (2014) 35 ILJ 1356 (LC), at paragraph [21], 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.’
  3. 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 terms of s34(1) of the BCEA, an employer may not make deductions from an employee’s remuneration unless, subject to s34(2), the employee agrees, in writing, or the deduction is made in terms of a law, collective agreement, court order or arbitration award.

A case is moot and therefore not justiciable if it no longer presents an existing or live controversy. With reference to National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others [1999] ZACC 17; 2000 (2) SA 1 (CC), how did the supreme court of appeal, in Mhlontlo Local Municipality and Others v Ngcangula and Another (2024) 35 SALLR 132 (SCA) recently deal with this issue?

The principle underlying the doctrine of peremption is that no person can be allowed to take up two positions inconsistent with one another, or, as is commonly expressed, to blow hot and cold, to approbate and reprobate when considering pursuing litigation. With reference to Qoboshiyane NO v Avusa Publishing Eastern Cape [2012] ZASCA 166; 2013 (3) SA 315 (SCA), what is the test to be applied to determine whether or not a party has perempted its right to institute legal proceedings?