This is the twentieth alert notice highlighting critical issues that will cause YOU to slip and definitely trip in 2024. These topics will be included in our renowned seminar textbook and highly sought-after PowerPoint presentation.
This notice addresses the following tricky issues:
- There seems to be room for suspension outside the boundaries of s186(2)(b) of the LRA.
- The Labour Appeal Court has expressed concerns about allowing employees to choose between contractual or fairness-based claims.
- Additionally, the Labour Appeal Court appears poised to adopt a stricter approach in granting relief when employees base their claims on breaches of contractual obligations.
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- With reference to Sithole v Nogwasa NO and Others (1999) 20 ILJ 270 (LC), does the CCMA and a bargaining council have jurisdiction to arbitrate a matter concerning an unfair labour practice when, at the time of such arbitration, the employee was no longer employed by the relevant employer?
- The scenario is as follows: registration with a controlling body is an inherent requirement for an employee to perform his/her duties. The employee loses such registration. This occurred because the employee did not pay the relevant fees and the relevant licence held by the employee, so issued by such body, also expired. With reference to Aminto Precast and Civil Engineering CC v CCMA and Others [2023] 6 BLLR 521 (LC); (2023) 44 ILJ 1491 (LC), should the employer suspend the employee under such circumstances because he lost registration with the relevant controlling body, does this amount to suspension as contemplated by s186(2)(b) of the LRA?
- The labour court is afforded jurisdiction in terms of s77(1) read with s77(3) of the BCEA to hear and determine any matter concerning a contract of employment, irrespective of whether a basic condition of employment constitutes a term of contract. A number of supreme court of appeal decisions expressly stated that the dispute-resolution procedure provided for in the LRA does not defeat an employee’s right to rely on common law recourse. Fedlife Assurance Ltd v Wolfaardt 2002 (1) SA 49 (SCA), Makhanya v University of Zululand [2009] 8 BLLR 721 (SCA) and SA Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA) are three of such judgments. How did the labour appeal court recently view the approach adopted by the supreme court of appeal?
- Subsequent to the handing down of the aforementioned supreme court of appeal judgments, the constitutional court also dealt with the issue of an employee’s entitlement to common law remedies in Chirwa v Transnet and Others [2007] ZACC 23, Gcaba v Minister of Safety and Security [2009] 12 BLLR 1145 (CC), Steenkamp and Others v Edcon Limited [2016] ZACC 1, Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] 4 BLLR 323 (CC) and Baloyi v Public Protector [2021] 4 BLLR 325 (CC). In essence, the approach adopted by the constitutional court has come to be relied upon by both the high court and the labour court to assume jurisdiction in disputes stemming from dismissals referred as contractual dismissals. How did the labour appeal court recently view this development that, in essence, permitted a litigant the option of pursuing a claim either on contractual grounds or, alternatively, fairness grounds?
- Although the labour appeal court correctly found itself bound by the majority decision in Baloyi v Public Protector [2021] 4 BLLR 325 (CC), what were the concerns it recently expressed with regard to the disadvantages that flow from such an approach?
- In the scenario where an applicant alleges to pursue a claim based on contractual grounds, the relief prayed for must be either specific performance or damages. In the absence of proving damages suffered, an applicant will only be entitled to specific performance. What are the factors recently identified by the labour appeal court that should be taken into account when considering whether or not such discretionary relief should be granted?
- With reference to Haynes v Kingwilliamstown Municipality 1951 (2) SA 371 (A) and Nationwide Airlines v Roediger and Another 2008 (1) SA 293 (W), on what basis did the labour appeal court recently hold that the remedy of specific performance was generally not applicable in an employment context?
