This is the fourth alert notice of those issues that will cause YOU to slip and definitely trip in 2025. These notifications have been compiled largely on the basis of queries that our call- centre receive, as well as the solutions provided thereto by our fast-tracking team.
Some of these alert notice issues will eventually be incorporated into our mouth-watering annual seminar workbook, as well as our delicious and spicy PowerPoint presentation compiled on an annual basis.
The labour court, in Nama Khoi held that s198D of the LRA permits employees to refer disputes about whether s198A, s198B and s198C apply only while the employment relationship is ongoing and only with the view to obtaining declaratory relief as to the status of the employment relationship. A different approach was followed in SACTWU where the labour court held that the CCMA had jurisdiction ito s198D of the LRA to determine any dispute arising from the interpretation or application of s198A, s198B and s198C, including, but not limited to, whether the deemed employees were treated on the whole less favourably than other employees of the client performing same or similar work.
The focus of this alert notice is to deal with some of the more important issues recently identified by the labour appeal court in the above regard.
We look forward to YOU being part of the CCMA and SALLR continuing learning events – to secure YOUR seat, register here
FURTHER DETAIL OF THE IDENTIFIED TRICKY ISSUES
- The labour court, in Nama Khoi Local Municipality v South African Local Government Bargaining Council and Others (2019) 40 ILJ 2092 (LC) (Nama Khoi), considered the provisions of s198D and held that such section makes it possible for employees to refer disputes about whether s198A, s198B and s198C apply only while the employment relationship is ongoing and only with the view to obtaining declaratory relief as to the status of the employment relationship. A different approach was followed by the labour court, in SA Clothing and Textile Workers Union obo Members v Williams de Beer NO and Others (2021) 42 ILJ 2661 (LC) (SACTWU (LC)), where the labour court held that the CCMA had jurisdiction ito s198D of the LRA to determine any dispute arising from the interpretation or application of s198A, s198B and s198C, including, but not limited to, whether the deemed employees were treated on the whole less favourably than other employees of the client performing same or similar work and, if necessary, to quantify the back pay due to the deemed employees from the date on which s198A(3)(b)(i) applied to them. How did the labour appeal court recently resolve the stances adopted by the aforesaid conflicting labour court judgments, with reference to, inter alia, the following issues:
- s198D does not set out the specific relief to which litigants are entitled where a dispute arising from the interpretation or application of s198A to s198C is referred to the CCMA – how is this entitlement to relief to be determined?
- in SACTWU (LC), the approach was adopted that s198D was designed to be an all- encompassing or single process through which any dispute arising from s198A to s198C would be resolved – on what basis did the labour appeal court determine that this was the wrong approach and, once a determination is made in terms of s198D that an employee is deemed to be an employee of the client, the aggrieved party can then either utilise s191 of the LRA to deal with further disputes, or seek contractual remedies into the BCEA?
- on the one hand, s198D serves to confirm the status of an employee, as part of an interpretation or application exercise – to what extent can s198D(2) be utilised to obtain a declaratory order that a deemed employee has been subjected to differential treatment without justification?
- once such a declaratory order of differential treatment has been obtained, how is such employee to proceed to obtain further relief?
- the labour appeal court found that the CCMA cannot issue a declarator on the status of an employee no longer in the employ of the employer, but there is no bar against pronouncing on the status of the said employee at the time that the employee’s employment came to an end – on what basis was this approach adopted?
