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Article 9/2024

LabourEdge

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?

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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.
August 17, 2026

We think that everyone understands that an employer is vicariously liable for the wrong committed (an act or omission) by its employee during the course/scope/sphere of employment/engagement in any activity reasonably incidental to it.

But, what is the extent of an employer’s vicarious liability where the employee commits a wrong on his or her own volition?

August 10, 2026

What is the content of traditional consensus to indicate that an agreement exists between an employer and an employee?

If, on the traditional theory of consensus, a party fails to prove an agreement upon which it relies, with reference to Sonap Petroleum SA (Pty) Ltd v Pappadogianis 1992 (3) SA 234 (A), on what basis can a finding be made that quasi-mutual assent exists, founded on the approach that a party is precluded from denying the existence of an agreement based on their own conduct and the circumstances?

What does the three-fold enquiry entail to determine the presence of quasi-mutual assent?

In determining whether an agreement has been reached in the absence of traditional consensus, but on the basis of quasi-mutual assent, what is the extent of the duty on the party wishing to rely on such an agreement to, on the basis of reasonableness, enquire as to the contradictions that exist in the position of the other party so contained in correspondence?

August 3, 2026

Where do delictual claims fit into dispute resolution options applicable to employment disputes?