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Article 12/2024

LabourEdge

What is the viewpoint of the labour appeal court, as expressed in SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Another [2023] 2 BLLR 131 (LAC); (2022) 33 SALLR 60 (LAC) as to the question as to whether or not the labour court only has jurisdiction during the existence of a contract of employment and not once it has been terminated?

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The labour appeal court, in the aforesaid judgment, adopted the following approach:

  • s77(3) of the BCEA confers on the labour court concurrent jurisdiction with civil courts
  • the limitation exists in respect of matters concerning a contract of employment
  • whatever a civil court can hear ‘concerning a contract of employment’ is what the labour court can hear, and this is not limited to contracts which are in existence and have not been terminated
  • thus, a dispute concerning a contract of employment covers disputes whether the contract has been validly cancelled or has been breached
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?