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The document discusses the relationship between labor law and the Constitution of South Africa, emphasizing that labor laws must align with constitutional principles, particularly the Bill of Rights. It outlines various rights related to labor practices, including equality, dignity, and freedom of association, and highlights the importance of international labor standards. The document also notes that while the Labor Relations Act (LRA) provides specific protections, constitutional rights may extend beyond those protections in certain circumstances.
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0% found this document useful (0 votes)
20 views18 pagesChapter 1-2
The document discusses the relationship between labor law and the Constitution of South Africa, emphasizing that labor laws must align with constitutional principles, particularly the Bill of Rights. It outlines various rights related to labor practices, including equality, dignity, and freedom of association, and highlights the importance of international labor standards. The document also notes that while the Labor Relations Act (LRA) provides specific protections, constitutional rights may extend beyond those protections in certain circumstances.
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Mfundiso NgaloCopyright
© © All Rights Reserved
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Available Formats
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Labour law and the
Constitution
1.1. THE CONSTITUTION IN GENERAL
South Aftice isa democratic state founded on values such a» human dignity, equality, the
sdvancement of an sighs and redoms, non-raciliem and non-sexim. The Consist of
the Republi of South Afric, 1996 (the Conrtition) the supreme law ofthe country and any
law or conduct thats not in ine withthe Constiaton inva. The abligtions moped by the
Constitton must efile
“Theres are ofthe law or ocety which sunafectd by the Consitton, sd labour aw is
zo exception. This means that allie of labour law must be considered in the light of
‘onsituional principles and the rights contained in the Bil of Rights. The Constitution,
‘hereon, the moe appropriate starting pot for ay atempt fo understand law speci to the
‘workpic and the employment rationship
‘he Constitution was adopted a the supreme law so ato het the divisions ofthe country’s
st andi order oestahlsh 2 ocey based on decries, sca justice and fundamental
human rights. Iprovig the quality of life fall tizns an freeing the potential ofeach person
are farther conttatonal goals.
‘The Bil of Rights, contained in chapter 2 ofthe Coston, applies tall av and binds the
legislature, the executives, the jadcar and ll ong feat: Iportariy proton contained
inthe Bil of Rights bind natural oc uric person fappliable taking no account the nate
ofthe ight and the nate of any dt imposed bythe igi The so-alled horizontal application
‘means, for example tht private employers are als bond by te principles contane inthe Bl
lof Rights. Atthe ver lest, section 82) ofthe Constitution permits diapates between employees
and employers to be subject to the direct application of the Bll of Rights ifthe asserted
consttutionalbour right deemed to apply othe station facing Ua employe. When applying
4 provision ofthe Billo Rights, «cour ma apply orifneceeary develop, the common aw tothe
‘ren tha nor leplaton doce not ive eft to or cover tht right For example in Mara
The Minter of Defence, 3 mat oatractive dss of
sm employee employed by the South African navy the Supreme Court of Appeal eld tha it was
rnezesary to develop the common lw of employment to promote the spit, purport and object of
‘he Bil of Right,
The court may, of cours, develop rales ofthe common i tolimit any righ, provided that te
limitation sin ine with section 36() ofthe Conatiution. This ection confi that the rights in
‘he Blo Rights nay be limited by a aw of general application, but only tothe extent thet ce
limitation is reasonable andjustiable when aking various factor into sccount The labour rights
contained onthe Constistion are not abtlute and may be ied where this is warranted. These,
rights may, however, only be ined when the reason fr the ination is desgned to enforce the
constitutional aes
involving te question of damages for
‘When interpreting the Blof Rights, a cout, tribunal or foram mast promote the values
mentioned above, mast consider international Inv and may consider fregn lew. When Interpreting any legislation, and when developing the common law t must promote the Spi
prrport and objects ofthe Bil of Rights
The Constutlonst Court ease of Barkuizenv Napler NO saute foe tating tat al contracts
ate subject to constslona srutay. A number of rights contained in the Dil of Right are
potently relevant for employment contracts and the workplace, Some of these ate ouilined
below
+ Pyeryone sequal before the aw and has the right equal protection and bent of
the i No perion may unfcly discriminate director indirectly apans anyone
Baualty includes the passing of afirmative action mearures to proc or adrance
psoas or eategores of persons, who have been didvantged by unfle
1) Beryone bas ineren iglty and the righ to have ther dignity respected and
protected.
+ Everyone ao ha the nght to fcedon, security tnd box integrty.
+ No-one may be subjected to ver serstude or forced labour
+ Everyone has the right to privacy which incides the night not ove thet paon
searched,
‘Everyone has the right, peacefully snd unarmed to ase, to demonstrat, to
picket and to preset petitions
+ Byeryone has freiom of sociation - that he ight to frm and join
+ Bherytizen hes the right to choose thei trade occupation o profession fc
sltbough the pectic of trade occupation or profession may be regulated byl,
+ veryone has therght to have accesso socal secur including if they ae unable to
support themselves and their dependants, appropriate sail astance
+ Bvery chil has the ght abe proteted from expltative labour practices has the
right not tobe equed or permitedt perform work or provide serace tht ae
inappropriate fra person ofthat cil age or that place a isk the cis well beng.
+) Tosuppost tes sights, everyone asthe ight of aces to any information held by
the Sate or by another person that required fr the exercise or protection of any
rigs
"ational legislation as been enacted to give eet to many ofthese igs. or example, the
Employment Equity Act SS of 1998 provides further deal reaing to eat inthe workplace
Section 23 of the Constitution deus with labour relations and the right to fair labour
Practices which is unarguably the most important forthe application of aw in the workplace
Legation sich asthe Basi Condon of Employment Act of 1997 (BCEA), ann particule,
the Labour Raatlons Act 66 of 1995 (LRA), gies further expression io this constitutional ight
he prope interpretation and aplication of his lepton raise cnstutional iss itself nd
he Consttational Coart elaine a supervisory cole Sa astessng whether labou legislation ix
sulicienty aligned with the rights guaranteed by section 23 othe Constiton
According to dhe Constitutional Coart In Sidumo ¥ Rustenburg Platinum Mines, the
(Constucion snd the LRA seek ordre the power imbalance between employer and employes,
Laboorleiation sho tis to give effect to obligations incurred by South Africa a « member
site of the International Labour Ongnistion (ILO). South Afi ay rated @ number of
Conventions adopted bythe IL, laclading ILO Convention 11 of 1958 on equality in mars of
employment and oscuption. Internationa la and sandard ar, a such dec source of
nd re evant when labour right contined tn tae Contino ae interpreted o considere,
This was conlrmed by the Consttional Court in NUMSA v Bader Rop (Pty Ltd when held
that an otrpetton thi takes ino account principles contalaed in relevant ILO conventions is
tobe prefered
"The remand of this introduction considers section 29 of the Consation and some
it decisions relevant to nb ewe
Constutona
South Attias unique in having consituioalsd the right to flr labour practices. Although the
Fight as aot been defined, and is probably not capable of precite definition fs clear that
‘extends protection to cmployers and employees like, The aw and te Contin impose onthe
imployer a continuing obligation of farnes towards the employee. Theis reflected in the
onsiationa righ oe trestment isthe workplace
According to the Consitional Court in NEHAWU v UCT, what is‘ depends on the
ciscumstances of particalar cae and enentilly involve ale judgment. The concept of fa
labour practic is given content or substance bythe leptre obtains further meaning from
the decison ofthe court an tribunals that ar responsible for vere the interpett
application of labour leislaon. These deiions are based on international and domestic
jvteprudence,inchadng the ect: based furiprodence or body of law generated by the usft
labour pricice proviion contained in the old (1956) IRA. In the NEHAWU cass, the
CConstiutcnal Cour emphssised ix own roe in ening tha the right guaranteed in sesion
23) were honoured. The court eld tha the focus of the ection was onthe eltionship between
the worker and the employer and the continuation of thet réatonship om ers tha were fal (0
both parties The natural tension between the interss of workers and employers ad to be
Accommodate, where posible, ato arrive tome point of balance Importantly ths provides,
the antext for interpretation ofthe LRA
Although the LRA is the main leiative ofthoot ofthis sztion of the Constitution, i
expres excludes certain people fom te provisions. Tae LRA doesnot ppt to membsof the
National Defence Force, the National Ineligence Ageney or tothe Soath Alcan Sere Serve.
Hoveverin South Arcam National Defence Union» Miniter of fence, te Consutonal Coat
confirmed that member ofthe defence force were covered by the constitu ight tof abour
practices to which everyone i entitled
Employment contracts oxi the scope ofthe LRA ar alko subject to constittoalsrtiny
cording tothe Murray cae. This case held thatthe common law of employment imposes on all
Cenplyer duty of sr delng atl ties with their employers ~ even those nat covered by the
RA The Supreme Courtof Appeal Marna viewed thigh or aig’ ax being resized by
‘Be consemtonal ight ofhirlobour practices. In the recent cae of South Arca Marie Safty
Authority v MeKense,howevet, the Supreme Court of Appeal fund tit the Consttution did not
fore or compel court to develop the commer: aw contac of mployment by singly ncorporaing,
init the consiutional ight to fe abour practices Mekal in oer words i aathorty for the
peli tha where employees ace indeed prtered by the LRA, the Canton does not require
‘heconstutionlly potted Ibour rights toe treed or imported nto an did enrat of employment by way ofan mgd term. A person who believed thatthe LRA was nt giving
effect to the constrional guaraciees (or who argued tha a provision of the LRA costituted an
“nreasonabl or unjustifiable imiatio of constitutional righ) hould instead challenge he LRA
itselfesbeingunconsitaonal A gat canna bypass the LRA and rey diet on the provisions
athe Constiution nthe absenceofconstitionl challenge to this egliton seems cea that
‘my exended duty ofa deling’ mast be decided upon in individual case and inte ight ofthe
sSatuory provision that already ve efet othe constitioal gusrnte of fur abou practices,
“his was the conlsion ofthe Supreme Cour af Appeal in McKenzie.
the scope or extent of una labour practice protection given by the LRA seems nerower
than that provided by the Coston, bat thi may well ot be unconstitutional. or example,
although everyone enjoys the constiatonal righ, employers ae not protected by the LRA when
ie comes tothe unfur conduct of employees or thee repecetativs. In NEWU y CCMA, the
Labour Appeal Court rejected the srgument that hela ofthe LRA to provide for sme boar
red agunst employes was unconttatonal
Section 23(1) i diferent frm the other subsections ofthis right, given thats apple to
‘everyone. A broad reading of he provision might result ln people on the margins of the
employment relationship (or example, hor-erm contact workers, people employed by lsbosr
brokers and even independent cctracirs) being included in the protection fered, allbough in
NEHAWU, twas held that te ight engages “broadly speaking. the relationship between the
worker and employer: There appa o be no reason why the sight ofr abour practices should
rot nce rights regulted i abor legion other than the LRA, sac as heith-and-aty
rights at work: However, ston 23(1) should not be viewed as an overall or umbrella ight tht
inches al the other comsitstiona labour relations rights tha are deal with low The race
ofthe section sugests thatthe subsections dal with distinct igh
practices comm
the est ofthe provisions of secon 25 of the Constistion provid fr constitutional rights ine
cllective bargaining envzonment. Ths means thatthe eights relate to negation beoreen,
terployersand trade anions. The fredom to associate allows groape cf employes and expoyers
‘tw organise themsetve for the ola purpose of protecting tel respective labour righ
Section 232) grant every work the right to form and jon a trade union, opartpaein the
ctves and programmes of suede union, and inpetanty to tke
Section 25() grants corresponding rights to employers to form and joln an employer
‘ongelsation and to participate inthe acts and programmes ofan employer onenistion
is important to note tha section 2(3) doesnot provide for an employers right to lock employees
ut the employers equivalet of sks).
Section 244 provides thata ade union or employes organisation hs the right to determine
sts own administration programmes and actives. It alto grants trade unions and employer
‘orgzaiations the sight to organ, form and jin a federation of trade unions or employed
‘organsauons, An example ofa flerstion of trade unions ete wel nown Congress of South
‘African Trade Unions (COSATU} the biggest trade union federation in South Ac.
Section 23(5) grants every ede union, employer organisation snd employer the right to
gage in collective barging and section 26) provides that national lepton may recopnie
‘unlon security arrangements In South Afica, such arrangements re agency shop and ote shop
‘ach ofthese provisions wile consdered in turn.
S Section fitrducton to labour aw wth eference othe Conse
In interpreting these conetnationsl provisions, one must carey comsder the conventions snd
recommendations ofthe International Labour Organisation (ILO) which are an important source
‘finteratona lve The two ILO conventions applicable ofeedom of asciton a:
1. the Freedom of Assocation and Protection of the Right to Organise Convention 1948
(No8rand
2 tae Right to Ongenise and Collective Bargining Contention 1949 (No 98).
Sout Afi ratified both of these conventions in Febru 196 1 member starts an ILO
onveaton it undertakes to acarpose the conten ofthe convention nto ts atonal egiaton
theintenationl law contained inthe convention then becomes par ofthemativalelltion of
the member st. The content ofthe conventions rated by South Ais are mosly contained in
the legilation administered by the Department of Labour ~ sch sf example, the LRA, the
[CEA and the Occupational Health and Safety Act
“The essence of the reedom of association principle is enbind inate 2 ofthe Convention
on Freedom of Associaton and Protection ofthe Right o Organise, which provides
The ILO established so supervisory bodies to ensure the obseration of thee conventions:
the Commit of Experts onthe Appleton of Contentions and Recommendations nd
4 the Freedom of Asocation Commitee ofthe Governing Body ofthe 110.
The Freedom of Assocition Commitee considers complains about allege breaches of the
rincipls of freedom af association and has eveloped a body iterations lon freedom of
‘Ssocation, The Commitee of Experts reviews national reports from member sales on the
Implementation of conventions
The deons of these commites establish an importast source of international law in
eveloing freedom of ssncation in the employinent cote, These bodes have interpreted the
acid the right of trade unions to represent members
fredom of association principle
indvidval workplace grievance and dsilinary matters. In addition, they have determined that
trade unlons have the right suet enforce collective bargaining demands
inthe National Union of Metal Workers of SA v Bade Bop (Pp) Lt, te Consttionl Court
It that freedons of aeocation wil be impaired or negative afer where workers ae aot
ered to have their own trade union sepreent them in wdkplace dsciptine snd grievance
‘soe, but are instead required to be represented by ral union that they havent coven joe
In South African National Defence Union » Mister of Dfece, the Constitutional Court
‘oneladed thatthe feedom of ssiociation provisions in section 25(2) that refer w a "worker
ould be interpreted oinclade members ofthe South Aan National Defence Force SANDE).
Ths holds tru eventhough the rstonship between the SANDE and its member is unssal and
ot dental oan employment lationship. At the ine, there wae a provision inthe Defence Act
2 200 that profited defence force member rom joining tide unions. his provision was
Sheree unconsittionl The feedon of sociation sight granted to workers i section 2802)
sceoedngy aply to members ofthe SANDE a well Howews, iti aiverally accepted that,
‘oles da ot enjoy a constittional ight to strike In terms af seston 252) ofthe Consition, every worker asthe right tre ~ tha 0
iho? hs or her aboot. This gh ke ll fundamental rights cntalned in Chapter 2 of the
CConstisition, snot abso nied by the LRA, which provides more detailed regulation of
nconstitetonal abou lations rights The LRA its the ight to strike in two ways
intl it equres a specie procedare ae flowed befor the ight o strike maybe exercised
This procedure includes therefenal ofthe dispute tothe Commis for Conellation, Medion
tnd Arbitration (CCMA) ora bargining conc for conan, os well as the tere fa strke
‘Secondly, there ae substantive limitations onthe right to ike. For instance, workers are
prohibited fom striking about certain disputes hat mut be refered to arbitration bythe CCMA
‘oc barging council oto adiaton by the Labour Court, A typial example ia disp
shout an employect disilfor alleged minconduct. The employe mut refer such a dispute to
allowed to participate in a strike demanding the
tebitetion. The employee cllagus are
‘employes ceintsterest Anche exaraple of steantive Limitation concerns employees euch
‘doctors, uses or Sire Fighters) who worn designated exci ervce. Sich employees are
‘prohibited rom stkngallogth Instead, hey are ven the option of eampulsory arbirasion to
Terabe their cpt of interest with their employer. For ull discussion of sie liv sce
Chapier 16 ofthis book,
‘A Tock-out I the exclusion by ar. employer of employes from the employer's workplace for the
‘prposeof compelling the employes to accepts demand ofthe employe. Tock out isaconcdingly
"epuded se employe nda action end the counterpert toa srk,
fin] version ofthe Constution, there sno reference to a lock-out In Ex parte Chalrpersn of
Consitional Asem In Re Certification ofthe Constitution ofthe Republic of South Aca, 1996
(cen Constatianal Court held tat height o lock oat ned nt be nce a
the Consitaton, The court ejecked the contention tht the principle of equality require thai the
right to strike isincludd nthe Canettton, so 0 shoul nce aight to Tock ot. The court
concloed that although workers need to strike to provide them wilh suicient power to barais
‘lly ath employes enplayere may eerie power throigharange of weapons uch
+ dimitl
{employment of replcement ab
1 unsteralcplementationofnew terms and conditions af employment; nd
{exclusion of workers fom the workplace the Tock ou
was the courts ie thatthe right to trke andthe right flock tare not aces valent,
Inividuel employers were not ntaly given aright to engage In colectve bargaining i the
propose final constitution, However, in the Certifeaion cave, Ie Constitational Court hed that
‘flare to entrench or guarantee a right to engage Lo collective bargaining for individual
‘employers war not permis indvideal employers conld and infact do engage i collective
bargaining wih thelr enployes. The inal tet ofthe Conttuton accordingly grants te cight to
engage i olectve Bargning maton to trade unions ae employers onganistions but ls to
{ndlvidual employer
rr
(nthe fae of it the Constitution provides laglly enorceable right to trade unions,
aoplyerdorpoietions and enployer to engoge in cllectivebagsining Hower the contrat
[rts prdula consitional right hs been the abject of soe controvere and gation, The
{allective labour law dlopensatin established by the LRA doesnot recognise a legal diy on
‘nplyers or employee’ organisations to engage with trade nlone in colecive basing. The
(allectve barging sytem acleollges freedom of sociation and grants organisational Fights
representative trade unions witha view to leveling te playing elds for rae untons wishing to
cogae in collective bargaining. However, falls short of eet a lealy enforceable right 0
Tnstead, trade unions are enttled to use the right t strike to compel an uavlling
employer or erplojer gant to engage nelle barsning
seems that the constitutional right to engage ln collective bargaining contained in section
235) of the Consttation and the callectiv barging system edablthed bythe LRA are at odde
‘eth eachother inchisregard.Akernatively tray be argued thatthe LRA limits this coastal
Teh by not acknowledging legal ty to bargin. Section 2X5) specially provide that the
imitation ofthis consttonal ight mast comply wih section 561) of the Cotton
The apparent confit between the consttlona ight ard the bargaining provitons of
the LRA has now been ettied by the Sureme Court of Aopeal ina judgment about the
battle fr cllective bargaining rights Inthe case of South Mrican National Defence
The facts:
/Asexplalned abovein he dscussion on freedom of association under paragraph 1.22,
the Constitutional Court had concluded thatthe prohbiton of defencs force members
ftom joining trade unions and participating in Wade urion actives, contravened or
benween SANDU and the SANDF concerning the alleged refusal to bargain by the
SANDE. The cases revolved around regulations containing 3 new stafing policy and
regulations empowering the Miniter of Defence to appoint a Registrar of Miltary Tade
Unions wath the power to withdraw registration of mitary trade unions without price
notice. Two separate applications for intedcts were broughcand conicing judgments
were handed down, The disputes were eventually hearin an appeal othe Supreme
Courtaf Appeal n SANDU vitinsterof Defence Minister ef Defence SANDU,
The court hele:
‘The Supreme Court of Appeal hela tha section 23(5) didnot grant justicabe dy (in
‘other words, responsi that may form the bass ofacourt challenge) o engage In
collective bargaining. In coming t this conelason the cour referred to international
low and in particular othe two convention referedta above The court observed that
in collective bargaining, international authority prefered the principle of vluntarizm,
hich does not impose ajusticable duty to bargin. Following this judgment, an
appeal was launched othe Constitutional Curt. The Constitutional Court id nt daa
vith the question of whether section 23(5)imaoses a legaly enforceable general duty
to bargain. It determined the matter on a diferent bass, The court concluded that
established sructores providing for collective bargalning and spt resolution
benveen the SANOF and mltary Unions had not Eeen resorted to before the
implementation ofthe regulations The Constitutional Court also held that there was 0
authority that equled the SANDF to engage collective bargining with rade unions
fon the content of reguations
Chapter Labourlaw andthe Cons uence ofthe judgment ofthe Constitutional Courts thatthe Supreme
Court of Appeal judgment on the general duty to bargain stands. This means that
section 235) does nt extablish 2 legaly enforceable right to engage In collective
FE} bargaining. Such» ight mast be aqutted through collective Bargaining, 353 last
FEB) seco, enough industrial action. This judgment accordingly harmoniss the provision
in section 236) ofthe Constitution with he collective bargaining mode! ofthe LRA. n
} coming to thie conclusion the Supreme Cour of Appedl did nt find it necessary to
consider the application of section 36 the tations clause explained above
rude unin secrlty arrangements ae wsed to address the problem that ‘re rides preset to
‘made unions a the workplace. Fre riders are employees wh do not belong to the trade union
thar negoistes with an employer on behalf of employees at that particular workplace or
‘organist. Howser, they enjoy the benefit of such colletve bargaining in dat increases in
wages and improved condone of employment obtained by mesns of collecive bargaining 4¢
‘ended to them aswell nd not ony to trade union members atthe parculae workplace or
‘rpanisaton, Moreover, when tad union members reor to sre acon during the calective
barplaing proces free rides do not normally participate. While the srkers receive 30 psy
daring the strike, fre riders continue to present themselves for work and rveve pay. When the
dispute is esived and wages are inctesed they sare in such an Sncrese, es understndble
tha rade anions and union ember fd this stuatlon unacceptable
Nanlon secur arrangement sally takes the form of eter an agency shop agrecment or &
closed sop agreemert. An agency shop agreement ia collective prcmentconlodedbetwcen
teade union trade unions andan mplayer cr ersploye®organiston tht compels ree riders ©
yan agency fee othe trade union, A dosed shop agreement ia collective sgreementcompeling
{ployee to join the trade union one othe trae unions thats party to the agreement
Section 23(6) does aot create specie constiutional right, but provides that national
legislation may provide for anton recrity arrangements. The LRA contsns provisions fr the
cncasion of agency shop and closed shop agreements and accordingly gives eft to this
conttuttonal provision. Closed shop agreements in particular it the feedom of asociation of
tmpoyees, which incide the right nt to asoclate~ by compeling employees to join the trade
fnlon Section 236) provides hata imitation of any consittional ight by leglaton providing
for wnion security arrangements aust comply withthe mtaons clause in section 361) ofthe
gency sop sgremnts, equting fee riders to pay an agency fe toa rade anon, ae used
widely ia South Aice For example an agency shop agremest was concloded between the Slate
and publi coe trade unos. Al employers sot belonging to any trade union and working for
he Sate accordingly pay an agency fee Closed shop agreements, wherehy employees are
‘npeled o join trade union, are not common in South Afric. It therefore anderstandable
that thee has not been a consitional challenge onan security provisions is the LRA.
Inhis chapter we havereached he following conclusions
The Constitutions the supreme law ofthe country, Ary aw or conduct that i inconsistent
with is inal.
2 range of rights contained inthe Bil o! Rights is potentially relevant to employment
contacts and the workplace. The mest important rights forthe workplace ae thote fa
‘ction 23 ofthe Constution, which deals wt labour relations andthe right to far labour
practices
‘The Constitution and labour legislation seek to redress the power imbalance between
‘employers and employees inthe country.
Labour legislation slo tiesto give effect o South Arias obligation a a member state of|
the International Labour Organisation (LO}
Executive: Refers to government or the State, The executive arm of government in South
‘lca is headed by the president of the county, assisted bythe deputy president and the
members of cabinet,
‘Common law: In South Arca, generally refer to aspects of Raman-Dutch law and English lw
thot have nt been overtaken by legislation and that il exis as part of our lw as developed
through court cases legislation has the power to overtake the principles of common lw
courts havea constitutional duty to develop the common law inline wth the sp and values
ofthe il of Right,
Collective bargaining: Occuts when one cf more employers engage with one or more
organtations representing employees In oxde to attempt to reach agreement regarding
trates of mutual Interest.
CConeatin:& process whereby partes invcved in a dspute are assisted by a neutral third
party inthe context ofthe LRA, a commissioner ofthe CCMA) to come to an agreement and
thus solve their dispute on thelr wn term
Enforceable: Capable of being given force to oF being given effect tof something Is
enforceable, someone can compl ore) soreone else to respect the gh
Forum: A body, other than aribunalor court esabihed for purposes of lepute resol.
Interdice: A particular type of court order, Lally forcing a person tod something oF to
effin rom doing something.
Judiciary: Refers tothe courts including higher courts, magsratescourts and any other court
fextablched or recognised in terms ofan Act of Parlament) in which the judi authorty of
South Arica vested. The courts are independent and aubjec: any tothe Consttution end the
law which they must apply impartially andl without fea, fvour or prejudice, No person or
‘organ of tate may interfere with the functioning ofthe court
Juristc person: person in the eyes ofthe an: for example, a company is considered to bea
lego entity, with its own distinct personality that enables i o sue and be sued ints own
name; therefore a company or cose corporation fa uric parton
Jurisprudence: Broadly speaking refesto the study, knowledge or sclanceoflaw; often used
to refer to abody af aw'that develops through the judgments of particular legal system or
ourtand which's considered tobe binding courts of equal or ower tates
Chapter Labour law and the Constton Justcable: A mater or cipute ofthe kind thet may be adjudicated by 2 court tibunal or
forum,
Ligation: The process of taking a dispute to (especialy) 2 cout tuna or forum forthe
purpose othaving acspute adjudieated
Lock out: Defined in section 213 ofthe LRA as the exclusion by an employe of employees
from the employers workplace, fr the purpose of compeling the employees to accept a
= Labour Organisation (ILO) conventions Employment law
(Cyr 2; The contact of employe ne
21 latrodcion oe =
22 The partis tothe exploymentelitonshp
23 Rights and dies of employers ad employers
24 The cotrct of employmtenenes
25 Fou of contract ———
26 Termination ofthe contact of employment.
27 Overap between contract and tatutory rights 32
28 Jurisdiction and emedieg wae mrs 3
(Chapter 3: Base conditions of employment. me
3 atrodction vee a
5.2 Purpose and impact f thy BCEA “=a 39
33 Application ofthe BCEA eee omnes
3.1 Minimum conditions of employment a0
25 Prohibition of employmest of children and forced lsbour 47
35 Vanation of base conditions of ployment non
317 Monitoring, enoreerentand legs proceedings nnn 49
(Chapter 4 quality sn the workplsee
“C1 Introduction _ am
4 Unfair dlriination zi
43 Armative acti acne nn
44 Dispute rexoition =
(Chae 5 Ufa abour practise nn
1 Introdoetion, a
52 Defiition of nfs lbou practice
53 Time ints and remedies
Chaper 6 Dims ——
‘6. Induction, =
662 Who canbe dsmisted?.- ew mms
653 Referring an unr daniel dain mos
64 Date of disso nemreneen nn
6:5 When termination of employment dos ot conse &
dismise nee ol
{66 Forms of dismissals soso neon °0
67 Untied 68 Remolies for unfir dismiss
Chapter 7: Astmatsclyunfi dsl
72 Taeoduction
2 Dumlels infringing wo employeeh ght reo
173 Automatically we reasons for dais.
74 Defences to suomatcallyunflrdismisl dls
75 Remedies for automatically nfs dismiss
(Chap 8 Diss for misconduct
82 Misconduct that jase duis
12 Substastive fies for miscondact dismal
1A Speci miscondactjusitying dims
AAS Procedural irmese for miscondsetdamials
16 Diem of» probationary employee for misconduct
87 Growporteam misconduct
£88 Workplace misconduct thai also criminal cond
189 Referring a misconduct smi
810 Remedies
Chapter Dismal or ncapacty
2 latreduction
92 Datingushing benweennexpeiy, micondict and
wal epivements dma
93 Poor work performance
94 Probationary employees “a
95 health and mjry a
956 Disability. oa
97 Impossity of performance ar
98 Incorpatbilty. 135
99 Disiiatle at the behest ofa third pry 138
CChapier 10 Diss for operational requirements ul
TO Introduction 141
102 Meaning of operasonal requtement ry
103 Dismieas flected in terms of section 169 1a
Jo Lage tale retrenchment ction 189) 46
105 Retrenchment of employes on fed term contracts 147
106 Resolution of disputes bout operational equremenis
miss 6
(Chapter 11 Transfer of business ast
LI Introduction, 151
11.2 Transfer ofa busines as» going concer re
113 Consequences ofa trnser of sohent busiest 152
LA Vantin othe atomic consequences of tafe ofa
busines 14
15 Valaton of the ransfering employees beefs no 154
1,6 Tranter ofan insolvent buses. eel
119 Outuoureng and section 197. = 16
The contract of
employment
“Then york ona piecemeal basis fam home, where she beads bags fora company in Cape
oun Shei pald per unt completed an the works erate depending upon the orders that
‘ue placed withthe compary For example, In February 2011, she had ne work, but in the
previous thee months, she was busy and worked for about 60 hours in total. The company
rovides het with the Beas and material and structions as tothe patter and style ofthe
beading, Them whois an legal immgrent. id not sgn any contract with the company. I
Thembi an employee ofthe company and would the labou" legislation protect her f the
company no longer needed her service
2.1 INTRODUCTION
“he employment relationship i egulated by three main sources flaw: the Consititon ofthe
Aepalic of South Africa (the Consition)Isbour legion, andthe lw of contract. Initial,
‘only the commoa law of contract (based on the principles of freedom and sanctity of contrat)
foverned the employment relationship
The princi of fredom of contracts that the terms contrat are rely conchded
rolet the motual intentions ofthe contracting parties. The picipe of sanctity of contract sates
‘Hat contacting parties ought tobe bound by their promine and thatthe terme ofthe contract
should be enforced without outside interference. Tse plies assume tha the paris to an
employment contact occupy positions of egal power and ae able to negotiate the terms and
onions ofthe contra: el
Tn ea the unequal baaining strengths of employes and employees, partic in South
Alc, emi in employment contact that protected the Incest of erployes ad le employees
(pei urkilled and disadvantaged worken) ne vlnrablepostion. sae abou ition
lathe form of the Labour
Relation Act 6 of 1995 (LRA}
ale Conditions of Empoymest
‘et 75 of 1997 (BCEA) and
‘employment relationship and to ‘
‘eationship is now largely
fegulated by. ach bout legato, the common law of cotret sill applies to the extent that legion doesnot If
legislation doesnot on its cwn supply the anawert legal problem in employment la hen he
ets of the agreement between the partis, a well asthe common la, should be consulted. The
‘Consitukion overatches ll thee and mst be used ofterpret al legal sorces,
This chapter consigers the role of the contact of employment in the regulation of the
fiaed-term contrat contrat for aimed and specified period fie. Such acontractends
ft the expiry of silted or st period of time or upon the camplction of splat event or
jos Th adentage ofthe Fied-term contract thatthe contact ermine ends autorstilly
‘tponits completion and the emphyr iat reeired to dsm the employee in order erminae
the contact. The termination ofthe fxa-trmn contract ring the Period of the contret is
Teach of contract uals Boh the paris agree to ely termination. The contract is beaches,
ven if thee are fir reasons forthe drs ofthe employee ~ for example, i the employer
‘experiences final problems ad needs to reench the employe.
ty lau, whlch
Some fiacd-tecm contracts contain clase tered fed term eventual
allows a contract to be terminated upon the happening of cartln event. For example, contract
‘between TES anditsemployestnay spect that the sevice contract withthe cen terminates
for any reason, the contac of employment with the TES! employee wil also terminate. These
provislons have been critcibed bythe courte as laving TES employes in a very vulnerable
Postion snd being contrary to public policy
aed-term contracts may so conta escape clases tha allo either party to tezminate the
contrac: upon the girgg of one montis noice. These contacs are sometimes refered to as
‘maxim duration contracl 4 the partes re not necessarily bound to the fll duaton ofthe
cantract, The inclusion of thes: contractual provisions protects employers when there isan
tnfescen need oferminate the cntret perature. However, the courts have not always Been
prepared oenfirce these provisions.
The facts
in sindanev Prestige leaning Servic, the employee was employed a cleaner in terms
fa fixed term eventuality contract bythe employer, hich wesa TES. The employment
Contract provided thatthe contract between the employer and its employees would
feminate automatically i the employers contact with the cent terminated. The
employee’ contract was terminated when the cient nolonger needed his services The
[about Court was require to consider whether the employee had been dismissed or
wether the contrat terminated automatically.
The court held:
“The court hed that in certain circumstances, termination of an employment contract
‘may not constute a dlsmissal when an acto the emloyer is not the proximate cause
ofthe csmisal Since the contrac terminated due tothe ac ofthe cent and not hat
of the employer the court concluded that the employee was not dismissed within the
meaning of the LRA
Flower diferent approach was taken inte case discussed below
The facts:
In Mahlomu v CCMA, the fats were similar to the Sindane case, A security guard was
employed through a TES fora fixed period or unt "he Cent does not require the
services of the Employee for whatzoever reason Ale the cient advised that It no
longer required the secunty services, the TES indicated that Mahiamnus employment
contact had terminated automaticaly.
‘The court he
‘The Labour Court noted thatthe statutory protection against unfalr cma is
fundamental to the constitutional ight t far labour practices and aims to protect
vulnerable employees by infusing faknes int the contractual relationship The court
Feled upoo paragraphs (2) and (4) of section 5 ofthe LRA in reaching its decision.
Section 512) provides thatno person may prevent ar employee from exerelsng any
right conferred by tis Act Section S(4) provides that'a] provision in any contrac.
that rectly orindiecty contradicts or ints any provkion of section 4 or this section,
Isinvalel unless the contractual provision spermitedby this Ac:
The court nosed that, 35 the automate termination provisions in the contact
breached section 510), the key consideration wat whether such provisions are
permitted by the LA and whether ts permisible inthe circumstances ta contrat out
Of the right not to be unfit dsmigsed, The curt ha that hie certain statutory
rights can be waived, the test to determine the legtiracy of sucha waivers whether
the subject of the rights intended tobe the ole benef, Wothers have aninterest
in the right or the right serves the public interest then sich rights cannot be waved
‘The court was satisfied that itis clearly inthe public interest that vulherable workers be
protected against unfair labour practices. It concluded that a contractual term is
prohibited It renders a termination of = cntract of employment to be something
‘the thana dismissal with theresuit that the employee's deniedthe ight challenge |
the faleness thereof in terms of section 18 the LRA
Chopter2 The contact fenoloymant ‘Am employee who reasonably expect renewal of fxed-term contract onthe same or similar rtofthe employer the resignation may be egatded ara constructive emis snd the
terns may lem to have been unfirly nae fhe contrat not renewed ori renewed on Ehplyee potted by the LRA,
ess favourable terms, This provision in the LRA, which dscussed in more detain Chapter 6 of fidomatc termination ofthe employment contact Public servants gy have hee
this book, ams to prevent employers fom avoiding the unfair dismissal provisions ofthe LRA by ‘employment contacts automatically terinated when they abeent themselves om work
continually renewing Seedterm contracts ‘without permission fr atipuated numberof days (one month fr publ servants generally
Za 4 dape for eacher) [a such creamstances, their employment contacts terminate
tinomatcaly they are not diamisted andthe have n remedy interme ofthe LRA.
the Public Service Act 103 of 1994 grants a right to challenge on review the
Unless specified otherise, employment contracts are indefinite term contracts that generally Howe
terminate ony upon the dss, exigaaton or retirement of an employee. The dismissal of a employers decision not orelnstate them. These provisions only apply tthe puble sector
temples is regulated bythe LRA and must be for aftr reason and in accordance with a flr ‘Chape19 ofthis bool diveases these provisions farther Employers inthe private sector
procure. This applies even if employment contract expressly specify that such contracts may be may ot nlde Sach provisions in ther ployment cote
terminated by the ging of nocce Iipostlity of performance: If ther the employer or the exiployee becomes permanentiy
Employment contracts may contain a aus plating he compulsory retirament age ofthe Incapeble of pecorming their obligations due ono fault of either party the contract wll,
employe. Upon the employee reaching such an agreed relement age, the employment contact terminse. or example i a employe imprison fori hi or he employment
contract wil terminate. However, the decision to terminate can beaten some way
tothe employer then t would const a dismisl and would have to comply with the
lsmieel pevsions ofthe LRA
‘wil terminate automatically, ivespetve of the competence of the employee, and dismissal
procedares do not have tbe followed
more detail in Chapter 6. The employment contract cam ba be terminated in other ways. ‘contract terminated automatically by operation of law and was not a dismissal. The
‘Whether these amount to dismissal is fully explored in Chapter 6, ‘CCMA agreed with this argument and held that where impossibility of performance is |
be ven bythe employe to terminate the employment contact ta theabsence of sacha Berea the mckyment contre suspended fr the prod ef ncapacky howe
Contractual provision the BCEA regulates the period of notice and stipulates that «notice ls veers My
period of four weeks must be given ifthe employe as been employed for one year or mare; The court held:
two weeks ifthe employee has been employed for been six oats and one yar and (On review, the Labour Court held that, on the facts, the decision to terminate
tne werk, th employee ht been emploed for sx months or les. However the LRA Consthuted a dismissal. It held that the CCMA commissioner had made no attempt tO
‘regards the termination ofan employment contrat to be uf, especie of the pring of fextablsh whether the incapacity was permanent or temporary in ature The cour
Concluded that the commissioners finding was not objectively justifiable and should
beset aside,
A employment contract may terminate na umber of iferent ways.
otc, there no ar essen for the dismissal orf an unfair procedure is flowed
[spiy of fed: term contrac: When the period of ime specie in fixed tem coatret
expres, the contract automaticaly terminates. Ia such circumstances, the employee cant
‘Chim to have been dsmised ae the contract lapses de tothe passing of time and not dae =
toanactof te employer. ie
Retirement of en employe: Te contact of employment terminates automatically when the
‘employe reaches the grec or normal reiement age fr ax employe in that occupation. It
the employe confines to work fs etiement age the employer right to terminate the
contract remains unchanged and the contract cam be terminated at any ime fer such date
‘thos following any dismisal procedures.
Death ofan employee or deat or winding up of empleyer: The employment contract
terminates atonal pon the death ofthe employe the death or windig-up of tbe
cmploye ‘The courted
Resgatonof the employe: The employient contrac wil terminate ifthe employee resign. The Labour Court held that any act by an employer that rectly o indirectly results in
‘Once an employe resigns and the resignations aceped by the employer, neler party ean ‘the termination ofa contract of employment constitutes a dmiseal As the employer's
‘change their mind and revoke such agreement. However, ifthe employer resins because decision to terminate the employee's diectorship led to the termination of his contact
working condions become lotoleable or unbearable asa esl of unfair condect onthe Bo" employment the texmination constkuted 3 dismissal
In SA Post ofc xd v Mampeule,the employee was appointed as CEO ofthe employer
In terms of a five-year fixed-term contact. He was aso appointed at an executive
dector onthe employers board of directors The articles of asrocation ofthe employer
stpulated that he ceased tobe a director ofthe company fr any reason hi contract
of employment would terminate automatically Following the applcants removal om
the Board of dectos on the basis of his poor performance, the employee was advised
‘that is contract of employment had terminated automaticaly
Section & Employ Chapter 2The contact ofemployment ‘The court held: |
‘The Supreme Court of Appeal held tha the LRA snot exhaustive ofthe employee's
rights and remedies upon termination af the employment contract and the employee
fezains is o her commonaw right wo chim damages for breach of contrac. The court
Concluded that the employee was ented to claim damages for breach ofthe fied
tem contract being the remuneration that he would nave eared forthe balance of
Abt aboarleidation and the law of contrac regulate he employment ratonhip an oveap
between the two ares of Taw inevably aries. Thee aro a number of Instances in which Uh
overlap occurs
legihtion regulates the tans
Asatte may expres or impli overide the common av: or example, the attry
Protection sist wf iris eres an employers common-iw right toweminste 2.6 JURIS
4 employment contract upon th giving af noi foray reason The LRA oerids the Where there are disputes over contract of employment. the question zises a o which court or
common lead dh where there ia confit between the eo ae of a the employer ody ha th ight to decide the mater ( queton ofjrsditon) and what Kinds of remedies are
tay nolnger ely on sch contracts to lawl terminate the employment, Bese the partes
tektonship.
elation may be dependent upon the existe of contract oferpoyment For example 28.1
the LRAS defition of dismiss extends tothe ns enewal of faed-term contracts when &
cesonable expect fren is ental, Sm the LRA defines cami asthe
Aa gap notes cnre by cmon i fo eras boar a
rer ofa gig omer whit odes tec ™
The BCFA provides tha the Labour Court has concurrent jurisdiction withthe cv cours to
Tear and determine any mater concerning contac of eployment [ater ofthis provision,
termination of contrac of employment ih oe without nce. jhe Labor Court is empowered to sward damage or compensation fr abreach ofan employment
{eidtion can co-exist with conor principles Fr example the imped oblpton of per
tal trust and confidence maybe ported ito the employment contac. The bition ifs LRA regulates the awarding ofcommpenstioa to an employe who has been unflly
{Timo stand coadence eter bth employe and employes to conc themes gg gta he tng of competion a copys wo bur bes uf
ina manner that oes not estoy or seriou damage the relionhlp of confidence and famake ouch awards of compensation. The CCMA is an independent siory body established
awh he other, Ths rm spl int he eiployent correct nd ae he Sorte resokiton of hbour dips though concliaon, mediation and ebivoton, Han
Protection ofered to employes by the bout git poe ner conactialdaage the LRA special provide that he Labour Court may
tuk an order forthe payment of these contractal Gags, over and above any compensation
Wests conic betwen stator and common rights the satsnypaecion ada aranplons nessa hnessuuionroneth heatmceoorela este
general peat. For camps contractual provision that dents a purty tothe contract as en Fn deeoped ty th cl conto proves ee tthe enployee For xa an empoye
Independent contractor is overedden bythe LRAS presumption of employment. Stila. Bi sented tos diferent workplace without being censlted tay not have» sory
contacts tht exe or reduce rights garaced inthe BCEA (such sa requirement that tench but my be sl to aim a tn cnlyer hs Dace angie cent duy
employees work more than the mmm working hou) willbe verde y the BCEA Be oe caplet.
"However the courts have hld that where the employment contract isa fixed-term contract of Despite the cle intenion ofthe drs ofthe ou legato tha bour disputes are to be
«employment, the employer may not dismiss the employee before the fed term ends even fthere Feeley the Labour Court andthe CCMA, there have been a number of decisions in which the
‘sa fair reson for the termination and fair procedar is followed f the fie-term contacts By cours have been prepared to asume jurisdiction over dspte arising ou ofthe terminson
terminated prematurely, the contract will be breached and the employee can claim contractual J GFemployment conic: Fr example the ci cours have boca pepured io avard damages oan
damages, being the remuneration thatthe employee woud have earned fr the balance ofthe
tnployee forthe premature termination of fixed-term contrat where the employer hed a fair
fied tem,
‘on toregench the employee. The High Court hs ls awarded damage for breach of contract
_ Where a dxiplinaryprocedre, incorporated into ot include in an employment contrat was
Thefaas: breiched. The invlement of or encroachment by the cil cout into the domaln ot ae ofthe
In Fife Assurance Ltd v Wolfara, the employer terminated a five-year fiedterm Exbour Court undermines the labour dispute resolution framework,
employment contact after two years onthe bass of operational requirements. The
employee coimed thatthe contract had been breached and that he was ented o| | 2.8.2 Remedies
‘contractual damages as a result. The employer argued that the matter should be | J The breach ofa contractual provision is uniafal and can gve ris toa aim for ether specie
determined according tothe provisions ofthe LRA, which recognises the right to] JF perormanc or arnge for reach contact interns a dest apetne performance, the
amiss ary. ‘fitng parry (dhe party wh as led to ep it commitments i rguled 0 comply with the
‘ems ofthe contract. For example, i the case of the premature termination ofa ixed-erm
Section 8: Employment aw Chapter 2 The contactofempiyment 33 contact the court may order the employer to comtne to employ the employe forthe remainder
the ied term contract.
Contacral damages ae intcnded to pace the employe nthe sume nancial position ashe
forshe would have been in ifthe contract had at been breached. In the case of premature
termination of xed term contract, the employee would be ented to dam the remuneration
that woul have been earned fr the remainder of the contract of employment. ee ary amisnt
‘at could reasonably ave Been came or that was earned daring tht perio. The employee
‘vould have to prove tha the damages wee caused bythe beech and were not oo remote inthe
‘cueances. Is moredfcl to calculte the damage an employee would be ened ocr)
forthe unlawfltecniation of an indefinite term contract. The generally accepted view held by
the cout tha, nthe abeence of contrecial terms tothe contrary consul darnages should
belimited to the notice period tht the employers aque o provide tothe employe in order to
efulyternate the employment
Ih tre teas:
JB Sout arican Martine Safety Authorty v McKence, the employee had previously
Insttuted proceedings in terms ofthe LRA and, prior to the mater belng hear, had
[Bp sacnec a setiement agreement with his employer in terms of which he was paid one
Jp sesessaian: Nonetheless ne then claimed the High Cour that by una lsmsing
J Hrs, fis employer had breached an imped erm of his employment contract that he
‘would nat be dismissed without just cause. The Supreme Court of Appeal considered
‘he merits of te employee’ claim for damages for breach of his employment contract,
ata resutofhisunfir mis
The court hele:
The Supreme Court of Appeal held tha the comprehensive una limissl provisions
‘ofthe LRA do not provide forthe Impertaion of statutory rights Into the employment
‘contract. The court note that, while the Constitution provides forthe application or
‘evelopment ofthe common aw inorder to gle effect to right nthe Bl af Fights,
‘ths oniy apples where the right snot regulated by legislation. The court conchsed
that where employees are subject to and protected by the LAA their employment |
contact ae net also subject to an Implied term incorporating the satuory tight to
fairabour practices and fe dismissal which would resut in an unnecessary doubling
BB ceptcaton of commontaw and statutory ight
| The facts:
In Mangope v SA Footbal Aszacaton, the employee approached the Labout Court for
damages forthe breach of his employment contrac. The employee hed been appointed
fon probation for a three year fixed erm contact. At the end of the probationary
etd, his contact was terminated for poor performance. he contract provided that
the employee was entitled tobe evahited and counseled prior to termination. Sch
procedures were not followed, He claimed that his termination was unlawful because
he had not been given an indication that his petformance was poor, and because the |
employer hod breached ts obligation to teat im fay |
The court held:
‘The Labour Court held that remedies for employees who have been dismissed can be
found efter inthe common law orn the LRA While the LRA provides remeis Based
fon faimess, the LA has not affected the remakes available to employees under the
law of contract. Under the common law, the unlawful breach of an employment
‘contact entitles the employee to challenge the breach, orto accept it and sue for
Gamages. The conwact expressly stipulated that before termination for poor
performance, the respondent woud follow cartain procedures. On the evidence, eas
ea thatthe employer had fled tod so. The Labour Court awarded the employee
‘compensation equal to the remuneration he would have received fo thebalance ofthe
Flying unon the presumption of employment In the LRA an the realty test, Thembs
would appear to be an employee. Although she does not for part of the employers
tganisation che works from home, she fe economically dependent upon the employer,
‘eceves instructions fom the emplayer ands prouded with tools ofthe trae. Thefact that
She doesnot havea written contract of employment doesnot affect her status as employes,
but her employer would be in beach of the BCEA, which requles employers to prove al
employees with writen particulars of employment Even though Thembi is an illegal
immigrant, she nonetheless ented tothe protection of labour legislation because the
taht to far labour praccces applies to everyone. Asa result, Thembi Is entitled to be
protected bythe LRA against unfacmiseal,
a
Inthis chapter, the followin conclusions have been reached:
+ The employment relationship i age regulated by labour egslation To the exten hat
legislation doesnot apply the common law of contract apples,
The existence of an employment relationship isnot determined by the conclusion of
vrten contract of employment.
Wie empoyees enjoy protections under labour legition independent contractors do
ot Tests to determine whether someone is an employee oF an independent contactot
inciude the conto organisation, dominant impression are eat test
Once a contrat of employments concladed between the partes, a numberof rights and
dues arse for both employer and employee.
+ Notallze terms ofan employment contract are included the express agreement betveen
panies some terms may ned to be implied nto the contract inorder to reflect the employer
and employee rights and obligations
The conclusion of 4 collective agreement between an employer and trade union
automatically varies che terms ofthe contracts of all employees aling under the colectve
agreement
‘An employment contract may terminate in several ways: by dsmissal, the gving of notice,
the expiry of a xed term, retirement, death, resignation, avtomatic termination and
possibilty of performance,
(Chapter 2The contact of employment 35 Asboth abour legislation and the aw of contact regulate the employment relationship, a
‘overap between the two areas oflaw may occur Inthe eventof a confit between statutory
and common aw right, the statutory provson general preva
+ The dullcouns have concurrent jurisdiction with he Labour Cour ove sputesarsing out
ofa breach ofcontact ifthe labour aspute aises out ofan unawfl breach ofthe terms of
® contract, The CCMA and Labour Court have exclusive jurisction over many other
employment disputes suchas unfair dismissals and collective labour disputes
The breach of contact provision is unlawful and can ove ise to cli for speci
performance (enforcement ofthe contrat orthe avard of damages for breach of contract,
ree Saal
Arbitration award: An arbitrator award or decionasing out ofthe arbtvation ofa dispute.
Collective agreement Witten agreement concerning terms and condition ofemployment
any other matter of mutual interest concluded between one or more trade unions and one or
‘ore employers
CConcurtent jurisdiction: Where two or more courts from diferent systems simultaneously
have ursdition over space case
Constructive smissl A clismissal aking out othe termination ofa contrat of employment
by the employee because the employer made continous employment intolerable forthe
employee
Criminally able: abe in terms of criminal aw
Freedom of contract: Commoriaw pncple that assumes thatthe terms ofa contrat ate
freely concladed and that they reflec the mutusl intention ofthe contracting partion,
Going concer: A busines that sbeing actively conducted,
Lapse: Cxpires
Joint and several Hability: Two or more partes are responsible for payment and if one
