Article 69/2021

Labour Edge

What are the requirements to be met for s200B of the LRA to be applicable?

The labour appeal court, in Association of Mineworkers and Construction Union and Others v Buffalo Coal Dundee (Pty) Ltd and Another [2018] 9 BLLR 837 (CC), considered this section of the LRA thus:

‘[28]   The party who wants to invoke s200B must not only show that the persons are carrying on or conducting an associated or related business but also that the intent or effect of doing so is or was to directly or indirectly defeat the purpose of the Act or any employment law. In this matter, the appellants succeeded in showing that the respondents carried on associated or related business. They failed to prove that there was an intention to directly or indirectly defeat the purpose of the Act or any other employment law neither did they prove that the effect of the business arrangement was to indirectly or directly undermine the purpose of the Act or any other employment law. It therefore matters not, for the purposes of this judgment, whether s200B has a retrospective effect or not. We therefore do not have to decide that point.’

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.