Seeing that employees can challenge their dismissal on the basis of unlawful conduct, it has not taken long for employees to jump at every opportunity to try and utilise this avenue. What follows below are examples of instances where the courts have indicated that, although contractual rights and obligations have been created, same cannot be interpreted to have created contractual breaches entitling employees automatically to the remedies associated with the unlawful termination of their contracts of employment.
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Example 1: SA Municipal Workers’ Union obo Morwe v Tswaing Local Municipality and Others [2023] 2 BLLR 131 (LC); (2022) 33 SALLR 60 (LC
- The labour appeal court in casu considered the following clause in the relevant contract of employment: ‘
- ‘5 Termination of Employment
- ….
- 5.5The Council will be entitled to terminate your employment without notice in compliance with the relevant Labour legislation, as amended, and in terms of the Human Resources Policies and Procedure Manual, which may include a disciplinary hearing, if you –
- 5.5.1 commit any serious or persistent breach of any of the provisions of this agreement;
- 5.5.2 are guilty of any serious misconduct or deliberate neglect in the discharge of your duties under this agreement;
- 5.5.3 are guilty of any other conduct which will justify summary dismissal at common law;’
- The labour appeal court indicated that the word ‘may’ signifies that the employer had an option to hold a disciplinary enquiry and was not contractually obliged to do so – there is no self-standing common-law right to fairness in employment contracts and such right only exists if it is expressly or impliedly incorporated into the contract, which was absence in casu
Example 2: Old Mutual Ltd v Moyo (2020) 41 ILJ 1085 (GJ)
- The high court had to deal with an employment contract that specifically referred to a pre-dismissal arbitration as an alternative to a disciplinary enquiry and had to determine whether or not, in these circumstances, the employee had a contractual right to a disciplinary enquiry – the relevant clause reads as follows:
- ‘Where allegations of misconduct or incapacity have been raised against the executive, the employer will be entitled, within its sole discretion, to decide whether or not to hold an internal disciplinary enquiry, or to proceed instead via the pre-dismissal arbitration procedure, contemplated in s188A of the Labour Relations Act 66 of 1995, and subject to the executive’s remuneration at the time being equal to or above that stipulated in s6(3) of the Basic Conditions of Employment Act, the executive hereby consents to such pre-dismissal arbitration in terms of s188A of the Labour Relations Act.’
- The high court had no difficulty in finding that reliance on the aforesaid clause, to establish a self-standing contractual right to an enquiry, was misguided, seeing that the employer clearly had the sole discretion to determine what route to follow, namely, that of a disciplinary enquiry or a pre-dismissal arbitration procedure in terms of s188A of the LRA.
Example 3: Mamodupi Mohlala-Mulaudzi v Property Practitioners Regulatory Authority and the Minister of Human Settlements (2023) 34 SALLR 77 (LC)
- The relevant policies and procedures that the employee relied upon, for her allegation that a contractual right to an enquiry had been created, were the following: ‘
- 10.1 POLICIES AND PROCEDURES:
- You are required to be the guardian of all company policies whilst also expected to:
- 10.1 Comply with all policies, regulations, guidelines and procedures, as amended from time to time, however presented or conveyed, or wherever contained;
- 10.2 Obey all legitimate, reasonable and lawful instructions; as well as conduct yourself at all times in such a manner so as to not adversely affect the reputation of the Company; Acknowledge that you are bound to the terms of the Disciplinary and Grievance policies, as well as the Code of Conduct. It is your responsibility to gain access to such information via the Human Resources Department.’
- The labour court, in essence, found that the aforesaid contractual terms (relied on by the employee as the basis for her contractual right to a disciplinary enquiry) bound the employee to comply with the policies, regulations, etc, and furthermore bound the employee to the terms of the disciplinary code and code of conduct – the contractual terms that the employee relied upon said nothing about her entitlement to a disciplinary enquiry and, therefore, the court made the finding that the employer did not behave unlawfully in terminating her services.
