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.
July 3, 2025

Is it a requirement that each page of an affidavit must be initialled? Is it a requirement that every page of every annexure to an affidavit must be initialled?

June 26, 2025

The first leg of the test to determine whether or not urgency exists, when an urgent application is brought, requires a court to assess whether an urgent hearing is necessary because the applicant will not be able to obtain substantial redress in the normal course.

June 19, 2025

Previous articles this year dealt with a zero-tolerance policy when tested positively for alcohol or drugs, as well as a zero-tolerance policy in respect of having tested positive for cannabis. In short, the courts hold the viewpoint that, by means of such policies, an employer is not permitted to create an absolute ‘no go zone’ and, furthermore, held that, at all given times, one of the fundamental questions to be asked, irrespective of the content of such zero-tolerance policy, is the effect of the drugs/alcohol/cannabis on the ability of the employee to do his/her job.