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Article 46/2025

If the cause of action is an alleged breach of an agreement, s77(3), read with s77A(e), of the BCEA is applicable, establishing the concurrent jurisdiction of the labour court and high court to determine the dispute (we have dealt with this scenario in previous articles).

On the other hand, if the cause of action is the alleged non-compliance with the required statutory unfairness so contained in the LRA, then the jurisdiction of the CCMA (and bargaining councils) and the labour court is established in terms of s191 of the LRA (previous articles also dealt with this issue).

But what about if the cause of action is based on a collective agreement?

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It is important to realise that s24 of the LRA is not applicable under all circumstances.

The SCA, in MEC for Economic Development, Environment and Tourism, Limpopo v Leboho (2022) 33 SALLR 281 (SCA); (2022) 43 ILJ 2695 (SCA), adopted the following approach:

  • if the cause of action concerns the interpretation of the collective agreement or, alternatively, entails an application issue of such collective agreement, then s24 of the LRA is applicable See, further, Tshambi v Hospersa (2016) 37 ILJ 1839 (LAC)
  • If, however, on the other hand, the cause of action centres around the enforcement of the collective agreement, or boils down to a compliance issue of the collective agreement, then the civil jurisdiction of the high court comes into play.

The previous article dealt with the distinction between misconduct constituting desertion and misconduct constituting abscondment – see, further, in this regard, Okhahlamba Local Municipality v Mabuya (2021) 32 SALLR 12 (LC).

In this article, what we attempt to do is provide some clarity as to a very different misconduct, namely, the misconduct of deeming desertion.

What is the difference between desertion and abscondment?

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?