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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.
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?