30 September 2009 by

So many courts

The decision in Chirwa v Transnet Limited and Others 2008 (3) BCLR 251 (CC) had, we all hoped, put an end to claims being lodged at the High Court as well as numerous jurisdictional issues being raised. We herald the judgment as being a milestone in order to achieve the objectives of the Labour Relations Act (the LRA) in general, and to ensure that labour disputes are resolved quickly. We thought we could celebrate. However, the Supreme Court of Appeal (the SCA) shortened our celebration. The debate as to which court has jurisdiction to entertain disputes has been opened up once again in the most recent decision of Makhanya v the University of Zululand (Case No: 218/08).

In Makhanya, the SCA held that a dismissed employee has various alternative remedies. An employee may lodge a claim to enforce or claim a breach of an employment contract and in addition, lodge a claim under the LRA for unfair dismissal. Makhanya, a Professor, instituted an action against the University of Zululand in the High Court of Durban (the Court). He claimed that his dismissal amounted to a breach of contract. He claimed that he was entitled to remuneration because he had continued to tender his services. In a special plea, the University challenged the jurisdiction of the Court to consider the claim. The jurisdiction challenge was upheld but the SCA overturned the judgment of the Court.

The SCA held that the judgment in Chirwa has limited authority only for the contention that dismissal claims may not be enforced through administrative action. An employee has both a common law contractual right to challenge a dismissal in the Court and in addition, an independent right in the LRA.

The common law right may be enforced either in the Court or the Labour Court, which may exercise jurisdiction over the common law claim concurrently. An employee is entitled to pursue a claim in the CCMA and an independent claim in the Court. The one claim is a claim to enforce the right of an employee not to be dismissed unfairly, which the LRA protects, and the other is a claim for enforcement of a right emanating from the common law to exact performance of a contract.

The law specifically allows for forum shopping by allowing the litigant a choice. If the litigant approaches both Courts, the Court may decide on the merits (as opposed to at a jurisdictional hearing), not to grant a remedy, but that is a question that it confronts after hearing all relevant considerations.

Arguments that claims that are formulated to challenge the unlawfulness of the dismissal are, in substance, claims about unfair dismissal and are misplaced because a claim must be determined based on what the employee's allegation is.

The Constitutional Court has re-entered the debate and sought to clarify the position once again in the case of Vuyile Jackson Gcaba v Minister for Safety and Security & Others (CCT64/08) [2009] ZAC 26. In this case, the Constitutional Court held that -

  • the dismissal of public sector employees does not constitute administrative action;
  • the Court should not determine issues that have been expressly conferred upon the Labour Court by the LRA;
  • the Court has the power to deal with issues arising through the common law.

The Court specifically stated that as its decision is the most recent, it should be applied in preference to the decision of Chirwa and Gcaba stated above. It seems, based on this decision that employment matters should be dealt with in the forums created by the LRA rather than at the High Court. However, there is still no clarity regarding whether an employee may lodge a claim based on the unlawfulness as well as the unfairness of their dismissal.

Aadil Patel,
Director, National Practice Head: Employment law

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