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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)
March 2, 2026

Part G of the Code of Good Practice: Dismissal (the Code) deals with dismissals on the basis of operational requirements. How do these requirements differ from what was previously contained in the repealed Schedule 8, as well as what is currently contained in the LRA?

February 23, 2026

The previous three articles dealt with misconduct, dismissals on the basis of participation in an unprotected strike (and in line with current case law also covering the collective withdrawal of labour) and incapacity poor work performance. In this article, we will deal with some of the important aspects dealing with incapacity: ill-health, injury and other forms of incapacity as contained in the Code of Good Practice: Dismissal (the Code).

February 16, 2026

Like its predecessor, namely, Schedule 8 to the LRA, the Code deals with probation. In the above regard, the following indicates the similarities between the Code and the said repealed Schedule 8: