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Article 25/2022

The constitutional court recently found that it was obliged to assign to s77 of the BCEA a meaning that promotes access to the labour court rather than a meaning that prevents that access.  It held so because s34 of the Constitution guarantees access by applicants to the labour court, which must resolve the disputes by means of a fair hearing and by application of law.  Taking such viewpoint into account, the constitutional court held that the labour court has jurisdiction in respect of all matters arising from the LRA, barring the exception, namely, where the LRA itself provides otherwise (for example, s77(3) stipulates that the labour court enjoys concurrent jurisdiction with civil courts in matters concerning contracts of employment).  Such exclusivity is, however, subject to the Constitution and the jurisdiction of the labour appeal court.  This also means that, on a proper reading of s77 of the LRA, as soon as a dispute is ripe for litigation, the claimant is entitled to refer it to the labour court.  Taking the above into account, what was the viewpoint of the constitutional court as to whether or not the labour court has the required jurisdiction to deal with matters in terms of the LRA only after the matter has been dealt with by the relevant labour inspector?

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In Amalungelo Workers Union and Others v Philip Morris SA (Pty) Ltd and Another (2020) 31 SALLR 137 (CC), the union and 75 of its members alleged that the employer had contravened s34 of the BCEA.  In terms of s34(1) of the BCEA, an employer may not make a deduction from an employee’s remuneration unless (i) the employee agrees in writing to the deduction in respect of a debt specified in an agreement, or (ii) such deduction is required or permitted in terms of law, collective agreement, court order or arbitration award.

In casu, the employer deducted tax in respect of company cars from the employee’s salaries.

In coming to the aforesaid conclusion, the constitutional court argued as follows:

  • there is no provision in the BCEA that provides that a party should first approach a labour inspector before it approaches the labour court
  • in addition, none of the functions of a labour inspector in s64 of the BCEA cover dispute resolution
  • the function of the labour court is to adjudicate legal claims and to hold otherwise would frustrate the objects of the BCEA
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

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Where do delictual claims fit into dispute resolution options applicable to employment disputes?