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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.
October 19, 2026

Section 41(2) of the BCEA regulates the entitlement of an employee, dismissed for reasons based on the employer’s operational requirements, to severance pay.

In terms of s41(4) of the BCEA, an employee, who unreasonably refused to accept the employer’s offer of alternative employment with that employer or any other employer, is not entitled to severance pay ito s41(2).

How does the assistance provided by the retrenching employer to a retrenched employee affect such employee’s entitlement to severance pay?

October 12, 2026

What is the short test to be applied to determine whether there is compliance with the reasonable decision-maker test?

When determining whether or not the arbitrator of the CCMA or bargaining council behaved like a reasonable decision-maker, what are the ‘questions to be asked’?

What is the test recently applied to determine whether an arbitration award should be set aside on review?

October 5, 2026

In the scenario where a group of employees, participating in a demonstration, picket, strike, etc, are participating in unlawful conduct, but a number of other employees, who are also participating in such demonstration, picket, strike, etc, are not participating in such unlawful conduct, will the employer be entitled to obtain an interdict against both groups of such employees?