Skip to main content

Article 18/2024

LabourEdge

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.  Is this the correct approach or, alternatively, should such claim be determined during a trial?

_____________________________________

  • In Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA), it was held that, in motion proceedings:
    • ‘‘[16] … The continued existence of the common-law right of employees to be fully compensated for the damages they can prove they have suffered by reason of an unlawful premature termination by their employers of fixed term contracts of employment is not in conflict with the spirit, purport and objects of the Bill of Rights and it is appropriate to invoke the presumption in the present case’ (see also Black and Others v Joseph 1931 AD 132, at 150).
  • In similar vein, in Erasmus v Davis 1969 (2) SA 1 (A), it was held that, when claiming damages, the best evidence available to substantiate a claim for damages must be produced to enable an accurate assessment of same – when an employee fails to produce available evidence for the proper assessment of loss, the court cannot embark on awarding an arbitrary approximation of damages.
  • Taking the above into account, it is apparent that, in the civil courts, a claim for unliquidated damages for breach of contract by means of application proceedings is not permissible – Roy Greyling v George Randell High School (2023) 34 SALLR 82 (LC); [2023] 5 BLLR 412 (LC).
  • Thus, in the civil courts, unless damages have been liquidated by agreement or by a court, they are unliquidated damages to be determined by means of trial proceedings (Kleynhans v Van der Westhuizen NO 1970 (2) SA 742 (A).  Despite the above, it is apparent that the labour and labour appeal courts follow a different approach and award damages in the above regard in motion proceedings – e g KwaZulu-Natal Tourism Authority v Wasa [2016] 11 BLLR 1135 (LAC) and South African Football Association v Mangope (2013) 34 ILJ 311 (LAC).
  • With reference to the George Randell High School judgment, it is submitted that the approach of the supreme court of appeal should prevail over the approach of the labour appeal court and that the labour appeal court (as well as the labour court) should refer the issue of the quantum of damages to trial, seeing that, inter alia:
    • the calculation of contractual damages is never a mere arithmetic approach – it is indeed a value judgment in the computation of such quantum
    • reasonable efforts to mitigate the damages exist and must be canvassed during the trial
    • the amount of damages cannot be determined until the debate has been exhausted before a court hearing evidence
July 20, 2026

Precautionary suspensions

In the public sector, the Senior Management Service Handbook (SMS Handbook) directly addresses precautionary suspensions and the 60-day time limit.

Clause 2.7(2)(c) of the SMS Handbook provides that ‘If a member is suspended or transferred as a precautionary measure, the employer must hold a disciplinary hearing within 60 days. The chair of the hearing must then decide on any further postponement.’

Regulation 6 of the Local Government: Disciplinary Regulations Senior Managers, 2010 (Regulations) provides for the precautionary suspension of senior municipal employees and Regulation 6(6)(a) provides: ‘If a senior is suspended, a disciplinary hearing must commence within three months after the date of suspension, failing which the suspension will automatically lapse.’

What are the principles governing a determination of the question as to whether or not a senior municipal employee’s suspension automatically lapses in terms of the aforesaid Regulation 6(6)(a)?

Obviously, the answers to the aforesaid question are very relevant in the private sector where, firstly, a collective agreement regulates a similar process or, alternatively, such contractual rights have been created between the parties, to be enforced in terms of s77(3) of the BCEA.

July 13, 2026

In the previous article, we dealt with the consequences of a plant level collective agreement with a definite beginning and end date. We indicated to you that, in line with s23(2) of the LRA, and an analysis of the relevant case law, that, once such a collective agreement reaches its expiry date, it expires and is no longer of any force or effect. In this article, we deal with the scenario where a plant level collective agreement is concluded for an indefinite period and the employer gave notice to terminate same.

What are the consequences when a party to a plant level collective agreement, concluded for an indefinite time period, gives notice to terminate such collective agreement?

July 6, 2026

In terms of s23(2), a collective agreement binds, for the whole period of the collective agreement, every person so bound in terms of s23(1)(c) (the members of a registered trade union and the employers who are members of a registered employers’ organisation who are a party to the collective agreement, if the collective agreement regulates the terms and conditions of employment, or the conduct of the employers and employees) who was a member at the time it became binding, or who becomes a member after it became binding (irrespective of whether or not that person continues to be a member of such trade union or employers’ organisation for the duration of the collective agreement).

What is the relevant case law development as to a plant level collective agreement that has an expiry date, i e does such collective agreement continue to be of force and effect after such expiry date?