Article 22/2022

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


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.

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

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.