Article 9/2024

By now, it is firmly established that the workplace is governed by both statutory and contractual rights and obligations.

What are the fundamental principles differentiating the aforesaid scenarios?


Scenario 1: LRA right

  • This is a right to be enforced by an employee (generally excluding an employer) to be found in the LRA – examples are alleged unfair dismissal disputes and alleged unfair labour practice disputes.
  • The claim of the employee is for reinstatement, re-employment or compensation (NUMSA obo Fohlisa v Hendor Mining Supplies (2017) 37 ILJ 1560 (CC).
  • In this regard, depending on the nature of the dispute, the CCMA or the labour court has jurisdiction (see, inter alia, s193, s194 and s195 of the LRA).
  • Essentially, what is challenged in terms of this scenario is the alleged unfair conduct of the employer.

Scenario 2: contractual right

  • This scenario entails a dispute about the alleged breach of a contract, so to be instituted by either the employer or employee.
  • The claim in this regard is for damages, compensation or specific performance (Mahonono v National Heritage Council (2022) 33 SALLR 162 (LC); SAMWU v Tswaing Local Municipality (2022) 33 SALLR 60 (LAC); Greyling v George Randell High School (2023) 34 SALLR 82 (LC).
  • The labour and high courts have concurrent jurisdiction in terms of s77(3), read with s77A(e) of the BCEA
  • In this regard, the unlawful conduct of either the employer or the employee is challenged and not the unfair element of such conduct – in essence, if the alleged breach of contract dispute entails a dismissal without complying with the contractual rights and obligations, the dismissal is to be found unlawful and ab initio void.

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.