Article 22/2022

What is the difference between contractual, statutory and collective agreement rights and obligations?

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Statutory rights and obligations

  1. these types of disputes are created by statute and concern an alleged statutory unfair dismissal or an alleged statutory unfair labour practice;
  2. the employee is entitled to claim reinstatement, re-employment or compensation;
  3. the CCMA and labour court have jurisdiction to determine these disputes concerning the unfair conduct of an employer in terms of, inter alia, s193, s194 and s195 of the LRA

Contractual rights and obligations

  1. these disputes concern the alleged breach of a contract, excluding a collective agreement;
  2. the claimant’s claim is for damages, compensation or specific performance;
  3. the labour court and high court have concurrent jurisdiction in terms of s77(3) and s77A(e) of the BCEA;
  4. the claimant targets the unlawful conduct of the respondent and, if indeed it is a dismissal matter, a declaration that same is unlawful and ab initio void;

Collective agreement

  1. here the cause of action is the breach of such agreement and the remedy is set out in s24 of the LRA;
  2. s77(3) and s77A(e) of the BCEA are not applicable.
September 12, 2024

What are the principles regulating the scenario where an employer permits an employee to continue working after reaching the agreed or normal retirement age but subsequently terminates his/her services on the basis that the retirement age has been reached?

September 5, 2024

In assessing if reinstatement is fitting after CCMA deems dismissal in a fixed-term contract unfair, what factors guide this determination?

August 29, 2024

Is a binding agreement between a retrenching employer and the alternative employer required for the above section to be applicable and what role does the retrenching employer have to play in arranging alternative employment for such section to be applicable?