Article 84/2021

Labour Edge

What are the requirements to be met for s158(1)(c) of the LRA to be applicable (dealing with the jurisdiction of the labour court) to make an arbitration award or settlement agreement an order of court?

The labour appeal court, in Greeff v Consol Glass (Pty) Ltd (2013) 34 ILJ 2835 (LAC), at paragraph [19], held as follows:

‘It is thus clear from a reading of s158(1A) that s158(1)(c) must be read with and subject to s158(1A). Even though s158(1)(c) refers to “any settlement agreement” this cannot be taken to mean, literally, “any” settlement agreement.  Section 158(1A) describes what settlement agreements are being referred to in s158(1)( c). So properly interpreted, in terms of s158(1)(c), read with s158(1A), the Labour Court may make any arbitration award an order of court and may only make settlement agreements, which comply with the criteria stated in s158(1A), orders of court. A settlement agreement that may be made an order of court by the Labour Court in terms of s158(1)(c), must (i) be in writing, (ii) be in settlement of a dispute (i.e. it must have as its genesis a dispute); (iii) the dispute must be one that the party has a right to refer to arbitration, or to the Labour Court for adjudication, in terms of the LRA; and (iv) the dispute must not be of the kind that a party is only entitled to refer to arbitration in terms of s22(4), or s74(4) or s75(7).’

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.