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Article 44/2025

What are the differences in the principles applicable to contractual, as opposed to statutory, rights and obligations?

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CONTRACTUAL RIGHTS AND OBLIGATIONS

    1. If there is an alleged breach of contractual rights and obligations, then the cause of action is founded in contract.
    2. The claim is for:
      • damages
      • compensation
      • specific performance
    3. The LC and the HC have concurrent jurisdiction ito s77(3), read with s77A(e), of the BCEA.
    4. If the applicant is successful, then the conduct of the other party will be branded as unlawful – in the case of a dismissal contrary to contractual rights and obligations, such dismissal will be branded as unlawful and ab initio void.

LRA RIGHTS AND OBLIGATIONS

  1. If the complaint is based on the presence of statutory unfairness in terms of the LRA, then the cause of action is to be found in the LRA (e g alleged unfair dismissal or alleged unfair labour practice).
  2. In this regard, the aggrieved employee claims for:
    • reinstatement
    • re-employment, or
    • compensation
  3. In the above regard, the CCMA and the LC have jurisdiction ito s193, s194 and s195 of the LRA.
  4. Should the aggrieved employee be successful, then the conduct of the employer is to be branded as unfair on the basis of the prescripts as set out in the LRA.

See:

  • Solidarity v SABC (2016) 27 SALLR 34 (LC)
  • Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC)
  • SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC)
  • Greyling v George Randall High School (2022) 33 SALLR 279 (LC)
  • NUMSA obo Fohlisa v Hendor Mining Supplies (2017) 38 ILJ 1560 (CC)
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?

August 3, 2026

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