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.
March 10, 2025

What is an employer to do when it suspects that a medical practitioner is issuing pre- signed sick notes, or permitting its employees to buy sick notes, or, alternatively, is engaging in some other dubious practice regarding the issue of sick notes? What is an employer to do when it suspects that a person is not entitled to practice as a medical doctor?

March 7, 2025

Are you required to interpret any of the following: pre-trial minutes, strike ballot guidelines, the LRA, a separation agreement, a benefits dispute, an arbitration award, the BCEA, a restraint of trade, a traditional disciplinary enquiry charge sheet, the constitution of a trade union, etc?

March 4, 2025

The labour appeal court recently, in Murray and Roberts Cementation (Pty) Ltd v AMCU obo Dube and Others (2024) 35 SALLR 116 (LAC), confirmed important principles relating to the formulation of traditional charge sheets, determining the
fairness of a dismissal, the interpretation of a charge sheet and the reason(s) relied upon by the employer to justify the dismissal of an employee.