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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?

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  • 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
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?