1 July 2009

Two bites of the same apple?

The Employment Equity Act (the EEA) and the Labour Relations Act (the LRA) are both integral to our employment law legislation. The EEA promotes equality in the workplace, whilst the LRA governs workplace relationships. It is, therefore, inevitable that situations may arise where both statutes apply.

In Ditsamai v Gauteng Shared Services Centre, the employee referred an unfair dismissal dispute to the CCMA. He was successful and was awarded compensation. Once he was paid, the employee approached the Labour Court (the Court) alleging unfair discrimination in terms of the EEA. This application was based on the same facts and circumstances as that which led to his dismissal. The employer therefore argued that the application was res judicata i.e. that the matter was previously resolved.

The Court confirmed that a matter is res judicata where it involves the same subject matter, is based on the same grounds and involves the same parties.

The Court referred to Dial Tech CC v Hudson and Another. Here, an employee, who had successfully obtained compensation for constructive dismissal based on sexual harassment, was later entitled to claim compensation for that harassment.

The Hudson case emphasised that, although the causes of action in each case arose from the same facts and circumstances, their remedies were found in different statutes. The LRA governs constructive dismissal disputes, while the EEA regulates sexual harassment claims. The court also discussed the procedural differences in adjudicating these matters.

The key principle of Hudson is that, although the causes of action in both matters arose from the same facts and circumstances, the subject matter of each dispute differed. The constructive dismissal dispute dealt with unfair dismissal, while the EEA claim related to unfair discrimination.

In Ditsamai, the employer accepted the differences between unfair dismissal and discrimination, but argued that the Hudson approach would result in a duplication of claims. This is exactly what Chirwa v Transnet Limited sought to prevent. The employer argued that Hudson was incorrectly decided and, in accordance with Chirwa, litigants should not be permitted to use different pieces of legislation to forum-shop.

The employer argued that the employee's true cause of action was a dismissal dispute and the remedy available was to challenge his dismissal in either the Labour Court or the CCMA. The employee, therefore, had an election and exhausted his remedies by electing to refer a dispute to the CCMA. He could not thereafter formulate another claim based on the same facts.

The court rejected this argument and upheld the Hudson approach. It found that this approach is supported by overseas jurisdictions whose legislative framework and structure are similar to ours. The court cited the judgment of the Australian Court of Appeal in Pradeep Deva v University of Western Sydney in this respect.

The court further found that our own authorities support the Hudson approach. Additionally, our courts follow a Pradeep Deva approach, by distinguishing between unfair labour practices and unfair discrimination. The court therefore found it clear that there were separate issues - the award granted by the CCMA was governed by the LRA provisions regarding unfair dismissal, while the present application dealt with unfair discrimination under the EEA. Consequently, the complaint lodged under the EEA was not res judicata.

This judgment therefore grants employees two claims based on the same facts where unfair discrimination is the underlying issue.

The Employment Equity Act (the EEA) and the Labour Relations Act (the LRA) are both integral to our employment law legislation. The EEA promotes equality in the workplace, whilst the LRA governs workplace relationships. It is, therefore, inevitable that situations may arise where both statutes apply.

In Ditsamai v Gauteng Shared Services Centre, the employee referred an unfair dismissal dispute to the CCMA. He was successful and was awarded compensation. Once he was paid, the employee approached the Labour Court (the Court) alleging unfair discrimination in terms of the EEA. This application was based on the same facts and circumstances as that which led to his dismissal. The employer therefore argued that the application was res judicata i.e. that the matter was previously resolved.

The Court confirmed that a matter is res judicata where it involves the same subject matter, is based on the same grounds and involves the same parties.

The Court referred to Dial Tech CC v Hudson and Another. Here, an employee, who had successfully obtained compensation for constructive dismissal based on sexual harassment, was later entitled to claim compensation for that harassment.

The Hudson case emphasised that, although the causes of action in each case arose from the same facts and circumstances, their remedies were found in different statutes. The LRA governs constructive dismissal disputes, while the EEA regulates sexual harassment claims. The court also discussed the procedural differences in adjudicating these matters.

The key principle of Hudson is that, although the causes of action in both matters arose from the same facts and circumstances, the subject matter of each dispute differed. The constructive dismissal dispute dealt with unfair dismissal, while the EEA claim related to unfair discrimination.

In Ditsamai, the employer accepted the differences between unfair dismissal and discrimination, but argued that the Hudson approach would result in a duplication of claims. This is exactly what Chirwa v Transnet Limited sought to prevent. The employer argued that Hudson was incorrectly decided and, in accordance with Chirwa, litigants should not be permitted to use different pieces of legislation to forum-shop.

The employer argued that the employee's true cause of action was a dismissal dispute and the remedy available was to challenge his dismissal in either the Labour Court or the CCMA. The employee, therefore, had an election and exhausted his remedies by electing to refer a dispute to the CCMA. He could not thereafter formulate another claim based on the same facts.

The court rejected this argument and upheld the Hudson approach. It found that this approach is supported by overseas jurisdictions whose legislative framework and structure are similar to ours. The court cited the judgment of the Australian Court of Appeal in Pradeep Deva v University of Western Sydney in this respect.

The court further found that our own authorities support the Hudson approach. Additionally, our courts follow a Pradeep Deva approach, by distinguishing between unfair labour practices and unfair discrimination. The court therefore found it clear that there were separate issues - the award granted by the CCMA was governed by the LRA provisions regarding unfair dismissal, while the present application dealt with unfair discrimination under the EEA. Consequently, the complaint lodged under the EEA was not res judicata.

This judgment therefore grants employees two claims based on the same facts where unfair discrimination is the underlying issue.

Johan Botes & Kerry Plots

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