Labour Law

• Jurisdiction: South Africa
• DOI: https://doi.org/10.47348/YSAL/v1/i1a15
• Author: Grogan, J.
• Published date: 10 March 2021
• Pages: 780-884
• Date: 10 March 2021

780

1. INTRODUCTION

This chapter sets out developments in the ever-c hanging mosaic of labour

and employment law, from the continuing debate over the overlapping

jurisdiction bet ween the High Court and the L abour Courts, through

contractual disputes bet ween employers and employees, disciplinary

procedure, dismissal s for misconduct and operational requi rements and

reviews of arbitration awards to the law relating to disputes bet ween

employers and trade unions, in particu lar strikes and lock-outs. The period

under review ended before the lockdowns i ntroduced under the Disaster

Management Act (DMA)1 to combat the COVID-19 pandemic, but the

principles laid down in cases dec ided earlier remained relevant duri ng the

lockdowns, and will sti ll be relevant afterwards.

2. LEGISLATION

Apart from a host of regulations i ssued under the DMA,2 the impac t on

labour law of which will be considered i n the next issue of this work, no

major legislation relating to employment and labour law was promulgated

during the period under rev iew.

3. CASE LAW

3.1 JURISDICTIONAL ISSUES

3.1.1 High Cour t

After her employer failed to pay her salary for several months, Ms Lewar ne

approached the High Court for an order dire cting her employer to pay her

* BA(Hons) (Rhodes) B Iuris LLB (SA) LLM PhD (Rhodes); Advocate of the High Court of

South Africa; formerly professor and head of the Department of Law, Rhodes University.

1 27 of 2002.

2 27 of 2002.

Labour LawLabour Law

John Grogan*

2019/2020 YSAL 780

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unpaid salary and t he balance of her annual bonus. The cou rt held that it

lacked jurisdict ion because the Labour Court had exclusive juri sdiction to

adjudicate the claim. The Supreme Court of Appeal dis agreed. In Lewarne v

Fochem International (Pty) Ltd3 the court noted th at Lewarne had launched her

application under s77 of the Basic Conditions of Employment Act4 (BCEA),

which gives the Labour Court concu rrent jurisdict ion with the High Court

in matters concerni ng contracts of employment. Lewarne’s action was for

the payment of money due to her in terms of her employment contract. Apart

from failing to gra sp the nature of the action before it, the Hig h Court had

supported its conclusion by erroneously relying on a mi nority judgment in

Fedlife Assurance Ltd v Wolfaardt,5 in which the dissenting judge had found

that an alleged un lawful dismissa l is a dispute falling u nder the Labour

Relatio ns Act6 (LRA). The majority judgment i n that case had found that

nothing in the LR A precludes employees from pursuing breach of contract

claims in t he civil courts. The SCA ordered the employer to pay Lewarne the

balance of her bonus and her salar y for four months together with intere st

and costs.

3.1.2 Labour Cour t

In Blinkwater Mills (Pty) Ltd v Food & Allied Workers Union7 the High Cour t

ruled that the Labour Cour t lacks jurisdict ion to entertain claim s for damages

against protected str ikers because s 68(1)(b) of the Labour Relations Act8

provides only for claims for ‘just and equitable compens ation’ for damages

arising from un lawful acts committed during u nprotected strikes. Damages

claims again st protected strikers must accordi ngly be brought in the High

Court.

The services of the applicants i n Malinga v KwaZulu-Natal Provincial

Department of Education9 as temporary educators were terminated because

they had failed to prove their quali fications, as required by circulars whic h

regulated their employment. Claim ing that the circ ulars did not require

them to do so, they approached the Labour Court for orders sett ing aside the

notices of termination or rei nstating those who had already been dism issed.

The department contended the Labour Cour t lacked jurisdiction. The court

remarked yet again that there i s a common misconception th at the Labour

Court has jurisdic tion to entertain any work-related dispute. The applicants

were labouring under thi s misconception. Applicants must indicate t he

3 2019 (40) ILJ 2473 (SCA).

4 75 of 1997.

5 2001 (22) ILJ 2407 (SCA).

6 66 of 1995.

7 2020 (41) ILJ 873 (ML).

8 66 of 1995.

9 2020 (41) ILJ 228 (LC).

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basis on which relief is sought and f rom which law it arises. A court’s

jurisdiction is deter mined by the pleadings. The applicants had clai med that

they had been or would be unfairly di smissed. The LRA expressly provides

that the Labour Court lack s jurisdiction where the di spute may be referred

for arbitration. Furthermore, even if they had been e ntitled to approach the

Labour Court direct ly, the dispute had not been referred for conciliation.

The applicants could only have been able to bypass thi s requirement by

making a clai m under s158(1)(h) of the LRA or under the BCEA. T here was

accordingly no cause of action anchored i n any statute which would give the

court jurisdict ion. The application was dismissed.

The applicants in Amalungelo Workers’ Union v Philip Morris SA (Pty) Ltd10

were more fortunate. This cas e also concerned whether the L abour Court

may entertain an application for enforcement of the BCEA i f the applicants

have not asked the Department of Employment and Labour (DoEL) to

compel compliance by employers. The 75 employees in this case argued

that the respondent employers had infri nged the BCEA by deducting tax

for their company cars without taki ng into account the depreciation of the

vehicles. The Labour Court ru led mero motu that it lacked jurisd iction to

directly enforce provision s of the BCEA unless the applicants had relied on

contractual terms, rather th an the Act. The Constitutional Court found that

the employees were not seeking to enforce a provision of the BCEA. Thei rs

was a purely contractual dispute. Sec tion 77 of the BCEA was designed to

promote access to the Labour Court to pursue cla ims under that Act. Thi s

provision must therefore be interpreted to promote rather th an limit access.

Section 77 gives the Labour Cou rt concurrent jurisd iction with civil court s

over matters concerning contracts of employment. The Labou r Court had

found that it lacked jurisdict ion because disputes under the Act must fi rst

be referred to labour in spectors and that thereaf ter they could reach the

Labour Court only by way of appeal. When the present di spute arose, the

appeal provision had been revoked. Apart from thi s, nothing in the BCEA

requires clai mants to refer matters to the DoEL before they ca n approach

the Labour Court. That labour i nspectors may issue compliance orders that

do not deprive the Labour Court of competence to determine d isputes about

compliance with the BCEA. Determ ining such disputes ca nnot be left to

labour inspectors be cause they are not courts of law. The Labour Court’s

order declaring that it lacked jur isdiction in respe ct of the particula r claim

was set aside and the matter was remitt ed to that court.

After Group Five had been placed under business resc ue, several

employees claimed severance pay from the busines s rescue practitioners.

Although severance pay was due to them, the practitioners contended that

the court lacked juri sdiction to entertain a n application of this nature without

10 [2020] 3 BLLR 225 (CC).

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