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.
