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[2012] ZALCJHB 42
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Goussard v Impala Platinum Ltd (JS 21/08) [2012] ZALCJHB 42; (2012) 33 ILJ 2898 (LC) (7 May 2012)
17
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other
judges
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JS 21/08
In the matter between:
PETER GOUSSARD
…..........................................................................................
Applicant
and
IMPALA PLATINUM
LIMITED
…......................................................................
Respondent
Heard
:
14
November 2011
Delivered: 07 May 2012
Summary: Statement of
case-contractual and delictual damages unfair dismissal- operational
reasons and incompatibility. Jurisdictional
points: Cause of action
based on implied terms of contract. Damages based on based on section
23 of the Constitution.
JUDGMENT
MOLAHLEHI J
Introduction
This is an interlocutory
application in terms of which the respondent has raised various
points
in limine
regarding the jurisdiction of this Court to
entertain a number of causes of actions raised by the applicant in
his statement
of case. The claims raised by the applicant in his
statement of case arose from his dismissal by the respondent.
The claims of the
applicant are based on a number of causes of action. Those causes of
action can broadly speaking be categorised
into:
Contractual and
delictual claim;
Breach of settlement
agreement;
Unfair dismissal for
reason related to operations;
Dismissal due to
incompatibility
Constitutional damages
arising from the breach of contract.
One of the Respondent’s
preliminary points was that the Court did not have jurisdiction
because the termination of the employment
contract was by mutual
consent between the parties. The respondent has since conceded that
the termination of the employment
contract was not as a result of
mutual separation.
The respondent’s
preliminary points
The respondent contends
that this Court does not have jurisdiction to entertain the
applicant’s claim on the following grounds:
‘
4.1.
Claim
A: Contractual and Delictual Damages
-
The Respondent contends that the Court lacks jurisdiction and that
the claims are bad in law, i.e are not valid and do not constitute
good causes of action.
4.2.
Claim B: Breach of Settlement Agreement-
The respondent
accepts that there was no settlement agreement.
4.3.
Claim C: dismissal due to Operational Requirements
-The
Respondent submits that this Honourable Court is entitled to enquire
into the true nature of the dispute between the parties
in order to
determine whether it has jurisdiction, and that the facts show that
the Applicant's services were not terminated due
to operational
requirements. Hence it is respectively submitted that properly
construed this is a matter for arbitration and this
Honourable Court
does not have jurisdiction in respect of claim C, due to section
157(5) of the LRA.
4.4.
Claim D: Dismissal due to incompatibility -
It is submitted
that this claim is relates to termination of services due to
incompatibility, hence this Honorouble Court does
not have
jurisdiction in terms of section 191(5) of the LRA read with section
157(5) of the LRA.
4.5.
Claim E:Constitutional damages -
The Respondent submits that
the Court lacks jurisdiction in respect of constitutional claims
arising out of the alleged unfair termination
of the Applicant's
claims arising out of the alleged unfair termination of the
Applicant's services, and further that this claim
is bad in law.’
Contractual and
delictual claims
The contractual and
delictual claims which the applicant relies on are set out under
claim A of the statement of claim which has
been amended. In the
first instance, the applicant contends that the respondent breached
a material implied term of the contract
of employment. In this
respect, the applicant bases the cause of action on the implied
incorporation of the provisions of the
Labour Relations Act of 1995
(LRA) and the Basic Conditions of Employment Act of 1997 (BCEA) into
his contract of employment.
The other aspect of the
case of the applicant is that it was also a tacit term of the
contract of employment that his contact
of employment would not be
terminated as long as he had “complied with the respondent's
procedures and directives until
his age of retirement” which
is 62 years of age. The alternative claim is that it is implied in
the contract of employment
that he would be employed for an
indefinite period until he retires and that he would not be
dismissed unfairly for reasons related
to misconduct, insanity and
or retrenchment. It was for the same reason that he contends that he
had reasonable expectation that
the shares which had been offered to
him would have vested during the cause of his employment.
In essence the case of
the applicant is that termination of his contact of employment by
the respondent amounted to breach of
the employment contact and
breach of the tacit term that there was reasonable expectation that
the contract of employment would
not be terminated. The applicant
contends that as a result of the breach of contract by the
respondent, he has suffered damages
in the amount of R3.9 million
In
support of his case in relation to the above points, the applicant
relies on the case of
Parry
v Astral Operations Limited,
1
where
the Labour Court dealt with the conflict of laws as to which law
should apply between Malawi and South Africa in an employment
dispute. In that case, the applicant had claimed damages for breach
of contract on the basis that there was an implied or tacit
term of
the contract that the South African law would apply to their
dispute. It would seem it was on that basis that the Court
resolved
the conflict of laws and assumed jurisdiction over the dispute. The
Court
per
Pillay
J observed:
‘
The
applicant did not take issue with the respondent on
extra-territoriality and the doctrine of effectiveness. Principally,
the
applicant's stance was that it was evident from the contract that
the parties had tacitly, alternatively impliedly, chosen South
African law as the proper law of the contract. From this, the
presumption arises that the parties chose South African courts as
the
forum to adjudicate their dispute. Alternatively, the parties and the
contract had a real connection to South Africa. The parties
could not
contract out of the LRA and there is nothing in the contract that
suggests that they did. Mr Kahanovitz then proceeded
to identify the
factors connecting the dispute to South Africa.’ [Footnote
omitted]
The
above decision was overturned on appeal in
Astral
Operations Ltd v Parry.
2
.
The Labour Appeal Court did not consider the issue of the implied
term in the contract of employment regarding the choice of
law. In
overruling the decision of the court
a
quo
the
Labour Appeal Court held that:
‘
The court
below reached the conclusion that the BCEA and the Act (the LRA)
applied to this case. I have taken a different view.
I wish to make
two observations which in my view are responsible for the different
outcome in the court below. The first is that
it seems to me that, as
counsel for the appellant submitted, the court a quo dealt first with
the question of the proper choice
of law and once it had concluded
that the parties had chosen the South African law as the law that
would apply, it seemed to it
that it followed that the Labour Court
had jurisdiction. In my view this did not follow. Parties are able to
choose whatever law
as the law that must be applied in resolving a
dispute between them arising out of some agreement between them. That
law may be
invoked by a court in a foreign jurisdiction to adjudicate
a dispute. In this case a Malawian court could have applied South
Africa
law including the BCEA and
the Act in
adjudicating the respondent's claims against the appellant.’
3
In
any case, besides the fact that the Labour Appeal Court, did not
deal with the issue of the effect of an implied term of the
contract, the decision is no longer good law in the face of the
decision of the Supreme Court of Appeal in SA
Maritime
Safety Authority v Mc Kenzie,
4
the
details of which are discussed later in this judgment.
It is
now trite that the issue of jurisdiction whenever raised has to be
determined on the basis of the pleadings and not the
merits of the
case.
5
In labour disputes, the Labour Court in general
has jurisdiction in terms of both the provisions of
section 157
of
the
Labour Relations Act
6
and
section 77 of the Basic Conditions of
Employment Act.
7
The
applicant in defending his claims against the points raised by the
respondent contends that the Court has jurisdiction. In
this
respect, the applicant contends that he has formulated his claims in
such a manner that once jurisdiction is found in one
claim then it
would automatically follow that jurisdiction would be found in
relation to the other claims based on the concepts
such as,
causa
continua, conjunction causarum connexitas causarum
and
“the once and for all” rule. In support of his
contention that these concepts applies to the present case the
applicant relied on several cases in that regard.
8
The above rules do not
generally apply in labour matters simply because of the structure
and the nature of the dispute resolution
mechanisms set out in the
various labour legislation. In labour disputes, a number of causes
of action may arise from the same
set of facts and those disputes
may be heard by various dispute resolution bodies set out in
particular in the LRA.
In
Dial Tech CC v Hudson and
Another,
9
this
Court was faced with having to resolve the question whether the
employee who successfully obtained compensation for constructive
dismissal based on the allegations of sexual harassment at the CCMA
was entitled to later claim fordamages based on the same
sexual
harassment facts in terms of the Employment Equity Act. The court
held that:
‘
Whilst
the cause of action in both the constructive dismissal and the sexual
harassment cases may arise in the same facts and circumstances,
their
remedies are located in different statutes. The remedies for
constructive dismissal and unfair discrimination are found in
the LRA
and the EEA respectively.
In
terms of the constructive dismissal, the matter is firstly, before
reaching arbitration or adjudication, processed through conciliation
in terms of
section
135
of
the LRA. If conciliation failed the employee is entitled to refer the
matter to arbitration under the auspices of the CCMA or
a bargaining
council whichever is applicable. However, dismissal disputes,
referred to conciliation in terms of
section
187
of
the LRA, are adjudicated by the Labour Court if conciliation fails.’
10
The
above approach was followed in
Ditsamai
v Gauteng Shared Services Centre.
11
In
that case after accepting payment of compensation in terms of the
arbitration award, the applicant referred a further dispute,
this
time seeking damages for unfair discrimination under the Employment
Equity Act
55
of 1998
(“the EEA”). The respondent claimed that the
matter was
res
judicata
because
it had already been determined at the arbitration stage. The Court
dismissed the point in
limine
and
reasoned that although the facts upon which the applicant relied on
in both actions were the same, the causes of action were
different.
The approach adopted by the Court in that matter was upheld on
appeal in the soon to be published case of
Gauteng
Shared Services v Titus Ditsamai,
12
where
in dismissing the appeal Davis J held:
‘
When
the relevant facts are set out thus, the end of the second case
brought by the respondent was predicated on an allegation of
unfair
discrimination as set out in section 6 of EEA. This dispute requires
a completely different determination to that which
confronted the
arbitrator, which turned on the fairness of an early termination of
the contract. In the case based on the EEA,
the court was required to
make a determination as to whether there had been unfair
discrimination in the refusal to appoint the
respondent to a
permanent position and concomitant preference given to other
applicants who were of a different racial group.’
[18]
In
Gcaba v Minister for Safety and
Security and Others
,
13
the Constitutional Court in addressing the issue
of the multiplicity of causes of action that may arise
in
labour disputes observed
:
‘
First, it is
undoubtedly correct that the same conduct may threaten or violate
different constitutional rights and give rise to
different causes of
action in law, often even to be pursued in different courts or fora.
It speaks for itself that, for example,
aggressive conduct of a
sexual nature in the workplace could constitute a criminal offence,
violate equality legislation, breach
a contract, give rise to the
actio iniuriarum in the law of delict and amount to an unfair labour
practice. Areas of law are labelled
or named for purposes of
systematic understanding and not necessarily on the basis of
fundamental reasons for a separation. Therefore,
rigid
compartmentalization should be avoided.’
Implying statutory
rights into the employment contract
[19] The issue similar to
the one raised in this matter received attention in
Mc Kenzie,
where the Supreme Court of Appeal had to determine whether the right
not to be unfairly dismissed as envisaged in the LRA can be
implied
into the contract of employment.
[20] In that case after
resolving the dispute which the employee had referred to the CCMA
concerning an alleged unfair dismissal
dispute, the employee
instituted a claim for damages in the High Court. The employee
pleaded in his papers that his employment
contract could not be
terminated “without just cause” because of either the
explicit or implied term of the contract.
The employee claimed
damages because according to him had the employer not breached an
implied term of his contract he would have
been in the employ of the
employer until his retirement.
[21] The employer at the
High Court raised a special plea contending that the Court did not
have jurisdiction to hear the matter.
The special plea was dismissed
including leave to appeal against that decision. On petition for
leave to appeal, the Supreme Court
of Appeal granted leave and in
following the decision in
Gcaba
held that the question in
cases of this nature was whether the Court had jurisdiction over the
pleaded case and not some other
case that has not been pleaded.
[22] After restating the
test for determining the existence of a tacit term in a contract, the
Court in
McKenzie
held that the foundation for the pleaded
allegation of an implied term in the contract could either flow from
the provisions of
section 185 of the LRA dealing with the unfair
dismissal or could lie in the development of the common law in
accordance with the
provisions of section 39 of the Constitution.
Having found that the case of the employee in that case was based on
the implied
term the court proceeded to deal with the difference
between rights flowing from statutes and those arising from contract.
In this
respect, the court had the following to say:
‘
The
fundamental difference between rights arising from a contract and
rights arising from statute is that the former depend upon
the actual
or imputed consent of the parties whilst the latter are imposed by
the legislature in order to give effect to social
policies
underpinning the legislation. The nature of the latter rights may
vary. They may be conferred by way of mandatory injunctions,
such as
the provision in the Truck Acts in England, which have been carried
over into South African legislation dealing with employment,
in terms
of which an employee's wages must be paid in cash in the currency of
the country. Alternatively they may prohibit or regulate
conduct that
might otherwise be permissible such as the making of deductions from
an employee's remuneration. Rights to safe working
conditions and to
compensation for injuries at work are protective in nature. All of
this has limited the extent to which employers
and employees are free
to determine the terms of their relationship. In most instances the
employee cannot waive such statutory
rights because it would be
contrary to public policy to permit such a waiver, although the
parties to the contract can stipulate
for more favourable rights to
vest in the employee.
A relevant feature of some legislation
of this type is that it not only confers rights but also provides a
mechanism for the enforcement
of those rights. Where that happens the
question arises whether those means are exclusive and provide the
sole means of enforcement
or whether it is open to the beneficiary of
the right to use the ordinary processes of the courts in order to
enforce them. Another
question that arises is whether the beneficiary
of the right enjoys not only the benefit of the right itself but also
a right to
claim damages if the right is infringed. Our courts have
frequently grappled with these questions and the jurisprudence in
that
regard casts light upon the present problem.
Where a statute creates both a right
and a means for enforcing that right the position is that:
“
We must look
at the provisions of the Act in question, its scope and its object,
and see whether it was intended when laying down
a special remedy
that that special remedy should exclude ordinary remedies. In other
words, we have no right to assume, merely
from the fact that a
special remedy is laid down in a statute as a remedy for a breach of
a right given under statute, that other
remedies are necessarily
excluded.”
If on a proper interpretation of the
statute in question the legislature has confined a person harmed by a
breach of the right conferred
therein to the statutory remedy then
resort to other means of enforcement is excluded. Accordingly both
the scope of the right
itself and the means of enforcing that right
are determined by the intention of the legislature as ascertained on
a proper interpretation
of the legislation. It follows from the
authorities mentioned in para 7 of this judgment that it is now
clearly established that
in order to enforce the statutory right not
to be unfairly dismissed as embodied in s 185 of the LRA an injured
party must have
resort to the tribunals established under the LRA,
being either the CCMA or in some instances the Labour Court.
Similarly whether a
breach of a statutory right or a failure to observe a statutory
obligation gives rise to a claim for damages
is to a substantial
measure determined by the intention of the legislature as it emerges
from the statutory provision under consideration.
Whilst the
interpretation of the statute may not be the only feature in the
analysis it is the proper starting-point.’
14
[Footnote omitted]
[23] The learned judge
further observed:
‘
I
am
not
sure that the common law required development in order to reach that
conclusion, but that is by the by. What is important to
bear in mind
is that the effect of any extended duty of fair dealing must be
worked out in individual cases in the light of the
statutory
provisions giving effect to the constitutional guarantee of fair
labour practices. The constitutional rights that were
drawn upon in
that case for importing into the contract a term protecting the
employee against constructive dismissal are given
full effect in
relation to employees falling under the LRA by the definition of
“dismissal” in s 186(1).
Murray
seems
to me to be authority for no more than the proposition that an
employee who is not subject to the LRA enjoys the same right
as other
employees not to be constructively dismissed, whatever else might
have been said en passant. It is possible that there
is some need to
develop the common law by importing into the contract of such
employees terms that give effect to their right to
fair labour
practices but that is not a matter that need now concern us.
I do not think that
any of the cases I have referred to can be said to have decided
authoritatively that the common law is to be
developed by importing
into contracts of employment generally rights flowing from the
constitutional right to fair labour practices.
It is uncontroversial
that the LRA is intended to give effect to that constitutional right
and I see no present call, certainly
not in this case, for the common
law to be developed so as to duplicate those rights (at least so far
as it relates to employees
who are subject to that Act). The obiter
dictum in
Gumbi,
which has been
reiterated without elaboration, and without apparent consideration of
the matters that have been dealt with in this
judgment, cannot be
considered to be authoritative.’
15
[Footnote omitted]
[24] The Court concluded
that the plea about jurisdiction should have been upheld not on the
basis of jurisdiction but that the
pleaded case was bad in law.
[25] The applicant in the
present case sought to have it be inferred that there was an implied
term in his employment contract entitling
him to claim both delictual
and contractual damages. As stated earlier the Court in
McKenzie
found this to be bad law. This approach is informed by the fact
that, in, common law the right not to be unfairly dismissed is not
recognised. The right not to be unfairly dismissed derives from the
provisions of the statute and therefore any enforcement of
that right
must be located in that statute. In other words, in the present case
there is no basis for the contention by the applicant
that the breach
of the LRA gave rise to claim for breach of contract. Thus the
applicant's remedies in as far as the alleged unfair
dismissal is
concerned is confined to those provided for in the LRA or the BCEA.
To the extent that the BCEA confers jurisdiction
on the Labour Court
the powers of the Court are strictly limited to determine rights
arising from the common law of contract and
nothing more.
[26] In light of the
above, I am of the view that the applicant’s plea that he is
entitled to both contractual and delictual
damages because the
provisions of the LRA and the BCEA are impliedly incorporated into
his contract of employment is bad in law
and he is also not entitled
in law to circumvent the provisions of section 194 of the LRA.
Unfair dismissal due
operational reasons
[27]
In terms of claim C the applicant contends that his dismissal was in
breach of section 189 (1) of the LRA. Section 189 of the
LRA deals
with both the procedural and substantive fairness of a dismissal
based on operation reasons.
[28] The respondent
contends that the court does not have jurisdiction to entertain this
claim because the facts show that the applicant
was dismissed for
incompatibility and not for operational reasons as contended by the
applicant.
[29]
The issue under claim C has to do with the categorisation of the
dispute by the employee. In general, The party that has to
indicate
the reasons for the dismissal for the purposes of section 195 [5] of
the LRA is the employee. The reasons provided for
by the employee for
the alleged unfair dismissal determines in the initial stage the
forum to which the dispute should be determined
once the conciliation
has failed. The labelling of the reason for the dismissal triggers
the process of arbitration or adjudication
by the Court. It does not
however determine in the final analysis the jurisdiction of that
particular forum. The allegation of
the reason for the dismissal
provides the forum to which the dispute should serve and in that
regard simply provide that forum
with the provisional jurisdiction.
The forum which assumes the initial jurisdiction over the dispute may
in due course once the
jurisdictional facts are place before it
determines the true nature of the dispute and thereby also determines
which forum has
the appropriate jurisdiction.
[30]
In terms of this approach, the assumption is that the reasons given
by the employee for the alleged unfair dismissal are correct
and
therefore the dispute has been correctly categorised for the purposes
of the jurisdiction of the forum before which the dispute
has been
presented. This approach is stated in
Wardlaw
v Supreme Mouldings (Pty) Ltd
,
16
as follows:
'In
the light of the above, it seems to us that the employee's allegation
of the reason for dismissal as contemplated by s 191(5)
is only
important for the purpose of determining where the dispute should be
referred after conciliation but the forum to which
it is referred at
that stage is not necessarily the forum that has jurisdiction to
resolve the dispute on the merits finally. That
may depend on whether
it does not later appear that the reason for dismissal is another one
other than the one alleged by the employee
and is one that dictates
that another forum has jurisdiction to resolve the dispute on the
merits.'
[31]
The above approach has support in the decision of the Constitutional
Court in
CUSA v Tao Ying Metal
Industries and Others,
17
where the court at the end of paragraph held:
‘
The
dispute between the parties only emerge once on evidence is in.’
[
32]
It is therefore my view that the issue of whether the applicant was
dismissed for operational reasons is an issue for which
the court has
provisional adjudication. The question of whether the true nature of
the dispute relates to incompatibility as contended
by the respondent
and not operational reaons will best be determined by the trial court
after considering evidence that the parties
may put before it.
Incompatibility
[33]
The cause of action under claim D is formulated in the alternative in
the event it was to be found that the dismissal was not
due to
operational reasons but for incompatibility. The claim is based on
the provisions of section 188 [1] of the LRA
18
read with section 191 ] of the LRA.
The applicant raised the
claim that his dismissal was a result of incompatibility after the
respondent in the statement of defence
indicated that the dismissal
was due to incompatibility arising from allegations of improper
behaviour and improper comments
which were of a sexual nature made
by the applicants.
[34]
It is trite that the Labour Court does not have jurisdiction to
entertain arbitrable disputes
19
unless by the consent of the parties that the
Court seats as an arbitrator in terms section 158(2) of the LRA.
20
Thus this Court does not have jurisdiction to
entertain an alleged unfair dismissal dispute based on
incompatibility.
It therefore follows that
in the absence of an agreement between the parties as to the issue of
incompatibility, the court lacks
jurisdiction to entertain this
dispute.
Opportunity to be
heard in terms of section 23 of the Constitution
[35] The cause of action
under claim E which is in the alternative to claims C and D. Under
this heading the applicant claims that
his dismissal was unfair in
that it was in contravention of section 23 of the Constitution in
that he was not given an opportunity
to be heard before he was
dismissed and that was accordingly in breach of job security of
employment.
[36]
Section 23 of the Constitution provides amongst others that employees
have the right to fair labour practices. This right has
been given
effect in terms of the provision of section 185 of the LRA.
21
It is for this reason that a litigant cannot by
pass the LRA and seek to establish a cause of action in terms of the
provision of
section 23 of the Constitution unless the cause of
action is based on challenging the constitutionality of the
provisions of the
LRA.
22
In this respect, the Constitutional Court in
SANDU
v Minister of Defence and Others,
where
the Court held that:
23
'Where
legislation is enacted to give effect to a constitutional right, a
litigant may not bypass that legislation and rely directly
on the
Constitution without challenging that legislation as falling short of
the constitutional standard.’
[37] In dealing with an
issue similar to the current, Ngcobo J, in
Chirwa
held that:
'[T]he employee
cannot, as the applicant seeks to do, avoid the dispute-resolution
mechanisms provided for in the LRA by alleging
a violation of a
constitutional right in the Bill of Rights. It could not have been
the intention of the legislature to allow an
employee to raise what
is essentially a labour dispute under the LRA as a constitutional
issue under the provisions of s 157(2)....
What is, in essence, a
labour dispute as envisaged in the LRA should not be labelled a
violation of a constitutional right in the
Bill of Rights simply
because the issues raised could also support a conclusion that the
conduct of the employer amounts to a violation
of a right entrenched
in the Constitution'.
24
[40] It is therefore my
view that the cause of action formulated under claim E is
unsustainable as it is also bad in law.
[41] As concerning the
issue of costs I do not belief that it would be fair to allow the
costs to follow the result.
Order
In the premises the
following order is made:
The court has no
jurisdiction to entertain the contractual and delictual claim of the
applicant under claim ‘A’ and
accordingly the claim in
this respect is dismissed.
The Court has
jurisdiction to entertain the alleged unfair dismissal for
operational reasons under claim ‘C’, and
accordingly the
parties are directed to hold a pre-trial conference within 14 days
of date of this order.
The Court has no
jurisdiction to entertain the claim of incompatibility under claim
‘D’.
The Court has no
jurisdiction to entertain the claim formulated in terms of section
23 of the Constitution under claim ‘E’
and accordingly
the claim in this respect is dismissed.
There is no order as to
costs.
___________________
Molahlehi J
APPEARANCES:
FOR THE APPLICANT: Adv.
Coetzee instructed by Van Niekerk Attorney’s
FOR THE RESPONDENT: Adv N
Smythe instructed by Edward Nathan Sonnenberg Inc
1
(2005)
26 ILJ 1479 (LC) at para 28
2
(2008)
29 ILJ 2668 (LAC)
3
Astral
Operations Ltd v Parry
at para 22.
4
(2010)
31 ILJ 529 (SCA).
5
See
Chirwa v Transnet Ltd and Others
(2008) 29 ILJ 73 (CC) at
para169 and
Mahumani v Member of the Executive Council: Finance,
Economic Affairs and Tourism, Limpopo
( 2010) 31 ILJ 2009 (NGP)
6
66
of 1995 (LRA). Section
157. Jurisdiction of Labour Court
reads
as follows:
(1) Subject to
the Constitution and section 173, and except where this Act provides
otherwise, the Labour Court has exclusive
jurisdiction in respect of
all matters that elsewhere in terms of this Act or in terms of any
other law are to be determined
by the Labour Court.
(2) The Labour
Court has concurrent jurisdiction with the High Court in respect of
any alleged or threatened violation of any
fundamental right
entrenched in Chapter 2 of the Constitution of the Republic of South
Africa, 1996, and arising from -
(a) employment
and from labour relations;
(b) any dispute
over the constitutionally of any executive or administrative act or
conduct, or any threatened executive or administrative
act or
conduct, by the State in its capacity as an employer; and
(c) the
application of any law for the administration of which the Minister
is responsible.
(3) Any reference
to the court in the Arbitration Act, 1965 (Act No. 42 of 1965), must
be interpreted as referring to the Labour
Court when an arbitration
is conducted under that Act in respect of any dispute that may be
referred to arbitration in terms
of this Act.
(4)(a) The Labour
Court may refuse to determine any dispute, other than an appeal or
review before the Court, if the Court is
not satisfied that an
attempt has been made to resolve the dispute through conciliation.
(b) A certificate
issued by a commissioner or a council stating that a dispute remains
unresolved is sufficient proof that an
attempt has been made to
resolve that dispute through conciliation.
(5) Except as
provided in section 158 (2), the Labour Court does not have
jurisdiction to adjudicate an unresolved dispute if
this Act
requires the dispute to be resolved through arbitration.
7
75
of 1997. Section 77 (3) of the BCEA provides:
(3) The Labour
Court has concurrent jurisdiction with the civil courts to hear and
determine any matter concerning a contract
of employment,
irrespective of whether any
basic condition
of employment constitutes a term of that contract.
8
The
causa
continuation principle was applied in
Roberts
Construction Co Ltd v Willcox Bros (Pty) Ltd
1962 (4) SA 326
(A), where the Orange Free State Provincial Devision held that it
had jurisdiction in a matter involving allegations of
misrepresentation
in the building of a bridge where the girders of a
bridge across the river on the of both Orange Free State and the
Cape. The
rule was also applied in
N.C.S Plastics (Pty) Ltd v
Erasmus and
Others
1973 (1) SA 275
where at 278 A-B, the
court held that the underlying reason for this rule was to avoid
multiplication of actions concerning the
same subject matter. The
rule
causae contnentia
is discussed in
Berger and Others v
Aiken and Others
1964 (2) SA 396
at page 402. For a discussion
and authorities regarding the “once and for all” rule
see
Dial Tech CC v Hudson and Another,
(2007) 28 ILJ 1237
(LC) at paragraph [57] to [59].
9
(2007)
28 ILJ 1237 (LC).
10
Dial
Tech CC v Hudson and Another
at paras
63-64.
11
[2009]
5 BLLR 456 (LC).
12
Unreported
case number JA 44/09 at para 17.
13
(2009)
30 ILJ 2623 (CC) at para 53.
14
McKenzie
at paras 14-17.
15
McKenzie
at paras
54-55
.
16
(2007)
28 ILJ 1042 (LAC) at para 24. See also
Goldfields Mining SA (Pty)
Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation &
Arbitration and Others
(2010) 31 ILJ 371 (LC).
17
(2008)
29 ILJ 2461 (CC).
18
Section
188
(1) of the LRA reads: “ A
dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
(a) that the
reason for dismissal is a fair reason-
(i)
related to the employee's conduct or capacity; or
(ii)
based on the employer's operational requirements; and
(b) that the
dismissal was effected in accordance with a fair procedure.”
19
Section
157 (5) of the LRA provides that: “Except as provided in
section 158(2), the Labour Court does not have jurisdiction
to
adjudicate an unresolved dispute if this Act requires the dispute to
be resolved through arbitration.”
20
Section
158(2) of the LRA provides: “If at any stage after a dispute
has been referred to the Labour Court, it becomes apparent
that the
dispute ought to have been referred to arbitration, the Court may-
(a) stay the
proceedings and refer the dispute to arbitration; or
(b) with the
consent of the parties and if it is expedient to do so, continue
with the proceedings with the Court sitting as an
arbitrator, in
which case the Court may only make any order that a commissioner or
arbitrator would have been entitled to make.”
21
Section
185 of the LRA provides: “Right not to be unfairly
dismissed or subjected to unfair labour practice.
Every employee
has the right not to be-
unfairly
dismissed; and
subjected to
unfair labour practice.
22
See
Mohlaka v Minister of Finance
(2009) 30 ILJ 622 (LC) at 632 F
to G.
23
(2007)
28 ILJ 1909 (CC);
[2007] 9 BCLR 785
(CC) at para 51.
24
Chirwa
at para
124. The same approach was adopted
in
Gcaba
at paras 54 and 65.