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.

What alternative claim(s) exist in delict to a statutory automatically unfair dismissal, a statutory constructive dismissal and a statutory unfair discrimination claim?

The scenario is as follows: in terms of a collective agreement between an employers’ organisation and various trade unions, provision is made for the accreditation of medical schemes by the relevant bargaining council, so that employees may enjoy the benefits of selecting and joining a scheme to which their employers contribute.

The labour court is afforded jurisdiction ito s77(1), read with ss77(3), of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract.