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.
A number of supreme court of appeal decisions expressly stated that the dispute- resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse, e g Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA) (Fedlife), Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) (Makhanya) and SA Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) (McKenzie).
Subsequent to the handing down of the aforementioned supreme court of appeal judgments, the constitutional court also dealt with the issue of the employee’s entitlement to common law remedies in Chirwa v Transnet and Others [2007] ZACC 23 (Chirwa), Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC) (Gcaba), Steenkamp and Others v Edcon Ltd [2016] ZACC 1 (Steenkamp), Zungu v Premier of the Province of KwaZulu-Natal and Others [2008] 4 BLLR 323 (CC) (Zungu) and Baloyi v Public Protector [2021] 4 BLLR 325 (CC) (Baloyi). In essence, the approach adopted by the constitutional court has come to be relied upon by both the high court and the labour court to assume jurisdiction in disputes, stemming from dismissals referred as contractual dismissals. How did the labour appeal court recently view the aforesaid development that, in essence, permits a litigant the option of pursuing a claim, either on contractual grounds, or, alternatively, fairness grounds?
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The LAC, in PRASA and Nine Others v Onica Martha Ngoye and Two Others (2024) 35 SALLR 120 (LAC), had the following to say:
- the SCA, in Fedlife, Makhanya and McKenzie, adopted the approach that the LRA rights are not the only rights an employee is entitled to
- however, the SCA, in the majority judgment of Fedlife, adopted a different approach by indicating that the LRA comprehensively deals with the constitutional right to fair labour practices (s23 of the Constitution) and defeats the right to non-LRA recourses
- the LAC in casu regarded this minority judgment as ‘far more persuasive’ than the approach adopted in Fedlife, Makhanya and McKenzie by the SCA
- the LAC accepted that it is bound by the constitutional court judgment of Baloyi, but expressed concerns about the disadvantages of recognising a claim outside the LRA in indicating, inter alia, the following:
- such approach overrides respect for the purpose-built employment framework in order to prevent a dual system of law
- if contractual claims are permitted to be pursued and, if successful, there is still no guarantee in getting the job back or damages being awarded
- seeing that the LAC is bound by the constitutional court judgment of Baloyi, an investigation as to the lawfulness or otherwise of a dismissal is to take place – however, what is to be determined is what happens if it is found that unlawfulness exists
- once unlawfulness has been established, the primary remedy is specific performance, but it is not automatically granted
- the court is to exercise a discretion whether to grant specific performance or not – some relevant factors in this regard are:
- the facts and circumstances of the breach
- the nature of the employment contract
- the interaction between the parties
- the potential conflict at the workplace
- whether the employer still has a need for the employee
- the alternative remedy to specific performance is damages, but will only be granted to the extent proven
