Article 46/2021

Labour Edge

How did the labour court recently, in Jacobson v Vitalab (2019) 30 SALLR 175 (LC), interpret s187(1)(c) of the LRA dealing with the refusal to accept a demand?

The labour court stated that it appeared, from the wording of the amended s187(1)(c) and the explication of its purpose in the Explanatory Memorandum, that the application of the section is limited to the collective sphere. The Explanatory Memorandum makes clear that the purpose of the amended s187(1)(c) is to protect the integrity of the collective bargaining process. It precludes the use of dismissal as a legitimate instrument of coercion in the collective bargaining process. That process, by definition, contemplates concerted action and the participation of more than one employee (see Schoeman and Another v Samsung Electronics (Pty) Ltd [1997] 10 BLLR 1364 (LC)).  For the section to find application, therefore, there must have been an employer demand made of two or more employees, they must have refused to accept that demand and they must have been dismissed in consequence of that refusal (see National Union of Metalworkers of SA obo Members v Aveng Trident Steel (A Division of Aveng Africa) (Pty) Ltd (2018) 39 ILJ 1625 (LC).  The conclusion, that s187(1)(c) was not intended to apply in individual dismissal disputes, was fortified by the wording of the provision itself – the reference was to a ‘refusal by employees to accept a demand in respect of any matter of mutual interest between them and their employer’. The use of the plural makes clear that the extent of the prohibition against dismissal applies only where an employer seeks to extract a concession by employees to demands made in a collective context.

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.