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Article 14/2021

Labour Edge

It is settled law that an arbitrator of the CCMA or a bargaining council may peal away the husk of allegations and deal with the real dispute.  On what basis did the labour appeal court, in  Baise v Mianzo Asset Management (Pty) Ltd (2019) 30 SALLR 158 (LAC), recently find that the same approach is not applicable when a contractual dispute is referred to the labour court?

  1. Having invoked the LRA as the source of the claim to declare the agreement void, what right in terms of the LRA could be invoked to sustain that claim? The founding affidavit did not reveal an answer. If the appellant had meant to complain that the retrenchment was unfair, relying on the provisions of s189 not having been observed, it would first have had to refer a dispute to the CCMA for conciliation. However, that cause of action was not invoked. The case was not about an unfair retrenchment.
  2. Had the appellant meant to lodge a claim in contract in respect of which the labour court, in terms of s77(3) of the Basic Conditions of Employment 75 of 1997 (‘the BCEA’), could exercise civil jurisdiction? No express invocation of that power was made either.
  3. The labour court, without expressly saying so, had treated the case as a contractual dispute. By so doing, in the labour appeal court’s view, it had been generous, for otherwise the application should have been dismissed out of hand for incoherence.
  4. The incoherence was patent. Several questions arose. In the absence of expressly alleging that the labour court had to exercise civil jurisdiction pursuant to s77(3), could the labour court properly do so? Is it appropriate for the labour court to peel away the husk of the allegations and deal with the real dispute, as is required of commissioners of the CCMA? Can such an approach be competent where, unlike in the CCMA, the parties before the labour court are required to plead? More especially, if s158(1)(a)(iv) was expressly alleged as the competence of the labour court which was invoked, was it appropriate or even competent to have treated this matter as a civil claim?
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?