LABOUR LAW NOTES
WEEK 1 Notes (Week of 26 July 2023)
• There are three labour dispute resolution structures in terms of labour law:
> CCMA / Bargaining Councils (Bargaining Councils only have jurisdiction insofar as
legislative provisions says it has, for referrals to be made to it … does not have general
jurisdiction).
> Labour Court
> Labour Appeal Court
• At the heart of labour dispute resolution is conciliation (first port of call)
• The main purpose of labour law: to equalize bargaining power between capital
(employers) and labour (employees). There are two elements by means of which this is
achieved:
> Substantive element → protective legislation regulating human rights, employment
standards and occupational health and safety legislation (guarantees results)
> Procedural element → collective bargaining, a procedural element which enhances the
bargaining power of employees (guarantees no substantial results, because bargaining can
fail).
• Most of labour law is ‘codified’ in legislation (LRA, BCEA and EEA). The common law has
residual significance (as there are aspects which are absent from labour law legislation but
present in the common law).
• Not all the fundamentals of labour law are expressed in labour legislation. Some premises
and recurrent themes of labour law are unspoken or only deciphered by cross-referring to
several legislative provisions. (eg the fundamental of ‘majoritarianism’).
• 5 Significant signposts of labour law:
1) Scope of employment: constituency to which labour law applies (only employees and not
workers in general)
2) (Un)fairness/(un)lawfulness (Procedural and substantive (un)fairness) [Fairness and
lawfulness are not the same thing, because a decision can be fair but unlawful and vice
versa].
3) Rights and interest disputes
4) Dispute resolution and the centrality of conciliation
5) Majoritarianism
* Some of these signposts are relevant to all of labour legislation; others only to specific
legislation.
• Labour law by and large applies to employers and employees and occasionally to
applicants for employment. But not everyone who works or is engaged in productive
activity, is an employee. Term ‘employee’ thus generally narrower concept than ‘worker’.
Those workers falling outside the definition of employee do not have protection of labour
legislation. There are many grey areas - the legislature has attempted to address the grey
areas in order for more workers to be drawn into the net of protective legislation. An
employee can join a trade union. An employer can join an employer’s organisation. Trade
unions/employers/employer organisations can form a bargaining council.
Sources of labour law
• Constitution (in particular s23):
,> ‘Everyone’ refers to those who fall within the relationship between workers, employers
and their collective institutions. (A worker is one who works in terms of a contract of
employment, but it also includes relationships which are akin to employment relationships –
SANDU v Minister of Defence).
> The LRA has been enacted pursuant to subsection 5.
> ‘union security arrangements’ in subsection 6 refers to closed-shop agreements (non-
trade union employees forced to join trade unions and pay the subscription fees) and
agency-shop agreements (non-trade union employees need not join trade union, but forced
to pay the subscription fees).
• Legislation:
> Collective agreements (these are concluded ito legislation)
> Codes of Good Practice (must be considered in the interpretation of the relevant Act, and
good cause must be shown for not taking it into account).
> Note, where the LRA, BCEA, and the EEA is concerned, each of these statutes has its own
definition of ‘employment law’ (so make sure to check the definition for each separate Act).
• Judicial Precedent:
> The LC must follow a judgment of the LAC even if it is of the view that it is wrong. This is
because of stare decisis, reinforced by section 182 of the LRA, which provides that a
judgment of the LAC is binding on the LC.
> LC/LAC must follow CC
> Arbitration awards are not subject to the doctrine of stare decisis and are not binding.
• International law:
> Why international law standards are taken into account – Because of ss 39, 232, 233 of the
Constitution + ss 1 and 3 of the LRA.
> Courts look at instruments of the International Labour Organization (Ratified Conventions;
Recommendations; and Declarations concerning ratified conventions) [Note: Even though
the ‘Termination of Employment Convention’ has not been not ratified, the Industrial
Court’s jurisdiction which informs SA’s common law jurisprudence where labour law is
concerned, was in turn informed by the aforementioned convention – so that convention is
indirectly part of SA law].
• Common law (residual significance)
• Custom (seldom)
Labour Dispute Resolution
• Jurisdictional facts (The facts giving the forum jurisdiction to consider the dispute). Typical
examples/facts in determining whether a forum has jurisdiction:
> Employment: Person must be an ‘employee’
> Dismissal: Termination of employment must amount to a dismissal?
> Forum: Is the ‘employee’ at the correct forum?
> Time: Whether the dispute has been referred to the forum within the correct time periods
> Condonation: if late, whether condonation has been applied for.
• Typical labour dispute resolution procedures
> Conciliation
> Arbitration (although a decision after arbitration is final and binding, in certain
circumstances review is possible)
> Adjudication
> Strike/Lock-out (Act provides for procedures for these … conciliation necessary here)
,Procedures to follow in context of dismissal & unfair labour practice (ito s191 of LRA and s10
of EEA)
• Dispute must be referred for conciliation within certain period:
> Dismissal = 30 days
> ULP = 90 days
> Unfair discrimination = 6 months
• After conciliation, dispute referred for either adjudication or arbitration depending on
reason for dispute:
> ULP = arbitration after conciliation
> Misconduct dismissal = arbitration after conciliation
> If reason for dismissal unknown = arbitration after conciliation
> Retrenchment = adjudication after conciliation (usually)
> If dismissal automatically unfair = adjudication after conciliation
> Unfair discrimination (excluding dismissal based on unfair discrimination) = adjudication
after conciliation (usually)
• NEXT STEP: Once referred for conciliation there are two jurisdictional facts to look out for
prior to referral for arbitration/adjudication:
> 30 days expires after referral for conciliation OR Certificate of non-resolution is issued.
Within 90 days after whichever of the aforementioned happens first the dispute must be
referred to arbitration/adjudication (SAMWU – principle was established in this case
regarding arbitration… Weller v ABSA Bank Limited – was held that SAMWU holding applies
equally regarding adjudication).
• It has always been accepted that if reason for dismissal is one of those mentioned in
s191(5)(b) of LRA then the employee is required to adjudicate the matter in the Labour
Court. But in AMCU v Ngululu there was a statement to the effect that the employee may
refer the dispute to the Labour Court or to arbitration (election). [But in R Haslop’s AMCU v
Ngululu article it is argued that this statement was made obiter].
Week 2 Notes (Week of 2 August 2023)
The Common law and the contract of employment
• The LRA does not negate or abrogate the rights one has in terms of the common law
pertaining to a contract of employment. So, if a contract of employment is terminated, one
does not have to rely on the LRA, but can also found a claim in the law of contract – the
common law. (authority for this is Baloyi v Public Protector).
• In terms of s169(1) of the Constitution the HC may decide any constitutional matter except
a matter which is assigned by an Act of Parliament to another court of a status similar to the
HC (This is where the LRA with its dispute resolution mechanisms come in). Ito s157(1) of
the LRA, the LC has exclusive jurisdiction in respect of matters which the LRA specifically
says must be adjudicated in the LC (such as unfair dismissals, unfair retrenchments, unfair
labour practices, etc. – only in respect of such specific matters, but the LC does not have
general exclusive jurisdiction iro employment matters [Baloyi].) Where a litigant relies on a
breach of a fundamental right in the BoR arising from employment and labour relations,
then the LC will have concurrent jurisdiction with the HC which has original jurisdiction to
adjudicate the matter. [Note s157(2) does not extend the jurisdiction of HC but it does the
jurisdiction of the LC because it is able to do what the HC has always been able to do].
S77(3) of the BCEA also establishes that the LC has concurrent jurisdiction with the HC in
, respect of contracts of employment and matters arising therefrom (such as breach of the
contract, etc) – to rely on this section it must be a contractual dispute between the
employer and employee and reliance must be placed on unlawfulness rather than
unfairness. [Note: it is not easy to found a claim ito the common law, but you will have no
choice but to have resort to the common law in the HC if the prescription period has run its
course ito the LRA and there is virtually no likelihood that condonation will be granted.]
• In sum: Where reliance is placed on exclusively LRA rights – CCMA and LC are the forums.
Where reliance is placed on common law rights, then ito s77(3) of BCEA the forums are
either LC or HC, you can elect. Where reliance is placed on constitutional rights such as the
right to just administrative action, then ito s157(2) of the LRA the forums are either LC or
HC, you can elect.
• Terms of a contract of employment can either be express, tacit (inferring intention of
parties through their conduct – had they thought about it at the time they would have
included it into the contract) or implied by the common law or legislation (such as the BCEA
and the LRA where provisions indicated that they shall form part of the contract of
employment; in the LRA such terms are usually imputed through collective agreements).
Implied terms are not subject to variation by the parties, except in limited instances.
Duties implied by common law
• Duties of an employee = Service; Diligence and competence; Good faith; Fiduciary duty;
Respect and Obedience.
• Duties of employer:
> To receive into employment – but not obliged to provide work (generally no right to work)
> Remuneration
> Deductions only to be made by consent and set-off (now regulated by s34 of BCEA).
• Under the common law there is no implied right to a pre-dismissal hearing or fair dealing
(employee simply given notice and employment terminated). The common law cannot be
developed ito s8(3) of the Constitution to imply the relevant constitutional right into
individual contracts because the right to fair dealing in labour relations is already given
effect to in legislation, i.e., the LRA. But perhaps this could be done iro contracts of
employment not subject to the LRA. [Authority: SA Maritime Safety Authority v McKenzie].
Summary of Continued relevance of common law contract in labour matters
• LRA/BCEA does not prevent the enforcement of a contract of employment in terms of the
common law.
• The contract is still regarded as the starting point when determining whether or not a
particular individual is an employee for purposes of protective labour legislation – if there is
no contract, there can be no employment.
• Certain basic rights are guaranteed by legislation, unless the contract of employment
provides more beneficial terms and conditions.
• Labour legislation has substantially reduced the number of persons and institutions
excluded from protection, but some agencies are excluded from protection.
• Restraint of trade.
* The common law of delict also plays a role: Duty of employer to provide a safe working
environment + relevance of vicarious liability.
