Most Recent Publications

 

Is the BCEA now trending in dismissal disputes?

By Aadil Patel, Director, Anli Bezuidenhout, Senior Associate and Rowan Bromham, Candidate Attorney, Employment Law, Cliffe Dekker Hofmeyr

 

The recent judgment handed down by the Labour Appeal Court (LAC) in Pilanesburg Platinum Mines v Lisebo Lerato Pearl Ramabulana concerned an appeal against a decision of the Labour Court in which it was found that the employer had breached the employee’s contract of employment by failing to comply with the provisions relating to termination. The employee (applicant) brought an application to the Labour Court in terms of section 77 of the Basic Conditions of Employment Act, No 75 of 1997 (BCEA) in terms of which the applicant sought inter alia a declaration that the termination of her employment was unlawful and that the respondent had failed to comply with provisions of the contract of employment.

 

The Labour Court found in favour of the employee and the employer subsequently appealed against this finding.

 

The LAC stated that in seeking relief in terms of the BCEA and in not approaching the Commission for Conciliation, Mediation and Arbitration (CCMA), the Respondent had renounced all reliance on the Labour Relations Act 55 of 1995 (LRA). The respondent had therefore relied on contractual law, as opposed to equity and fairness.

 

The case illustrates the recent trend where it appears to have become fashionable for dismissed employees to approach to the Labour Court in terms of the BCEA and claim for breach of contract seeking either specific performance or damages. There does not seem to be a clear reason that has given rise to this, but the risk associated with claims made in terms of the BCEA, as in this matter before this Court, is enormous. Firstly, unlike in the LRA, the claimant must prove an unlawful breach and not unfairness for the termination of the employment; next in terms of the LRA, reinstatement is generally compulsory where a dismissal is found to be substantively unfair, specific performance consequent upon a breach is not, and generally it is a discretionary relief.

 

Furthermore, in terms of the LRA, an employee whose dismissal is found to be unfair will receive compensation. In an action in terms of section 77 of the BCEA, if the employee is able to prove a breach by the employer, the only amount s/he will receive is the loss s/he has proved to have suffered as damages. Here s/he must also show that they have tried to mitigate the damages. There is also no way s/he can receive damages equal to the amount they would have earned from the date of the breach to the date that they would eventually have retired.

 

This absurd prayer, which seems to have become a regular occurrence in dismissal disputes, takes leave of the basic rule that one is awarded damages that are proved and not what the employee would have been paid had he/she remained in the employer’s employ until retirement.

 

The LAC also found that an employee cannot merely state that because the terms of the employment agreement prescribe a process for termination, non-compliance with those terms constitutes a breach of the agreement. In relying upon this argument, the employee is required to show that the preconditions required for the employer to comply with the clauses of the agreement were present. In this regard, the judgment highlights the fundamental importance of pleading your case correctly as an applicant must stand or fall by his or her pleaded case. Failing to place reliance on the correct preconditions and authorities when seeking specific remedies, denies clients the right to such remedies.

 

For more information please contact Aadil Patel at [email protected] or Anli Bezuidenhout at [email protected]

Article published with the kind courtesy of Cliffe Dekker Hofmeyr www.cliffedekkerhofmeyr.com

 

 

 

 

 

 

 

Subscribe to our free newsletter

* indicates required
 

By submitting your email address to us, you agree to receive our newsletters and course updates. For more information about how we protect your personal information, click here .

Accredited Training Provider

     

Upcoming Courses

 

Workplace Discipline and Dismissal

07 July 2022 (09:00 - 16:00)

Interactive Online Course

Health and Safety Representative and Committee Training Course

14 July 2022 (08:30 - 16:00)

Interactive Online Course

21 July 2022 (08:30 - 16:00)

Emperors Palace Convention Centre

Basic Labour Relations

15 July 2022 (09:00 - 16:00)

Interactive Online Course

New Code of Good Practice: Harassment in the Workplace New Course

15 July 2022 (09:00 - 12:00)

Emperors Palace: Convention Centre

Chairing Disciplinary Hearings

21 & 22 July 2022 (09:00 - 16:00)

Interactive Online Course

The OHS Act and the Responsibilities of Management (Legal Liability) 

28 July 2022 (08:30 - 16:00)

Interactive Online Course

29 July 2022 (08:30 – 16:00)

Emperors Palace: Convention Centre 

Managing day-to-day challenges in the workplace

28 July 2022 (09:00 - 15:30)

Interactive Online Course

The Basic Conditions of Employment Act and Related Workplace Policies New Course

29 July 2022 (08:30 - 12:30)

Interactive Online Course 

 

August

New Code of Good Practice: Harassment in the Workplace New Course

04 August 2022 (09:00 - 12:00)

Interactive Online Course

Trade Unions in the Workplace

05 August 2022 (09:00 - 12:00)

Interactive Online Course

Managing day-to-day challenges in the workplace

12 August 2022 (09:00 - 15:30)

Cape Town: Protea Hotel Tyger Valley

The formulation of disciplinary charges Online Course

12 August 2022 (09:00 - 12:00)

Interactive Online Course

Chairing Disciplinary Hearings

18 & 19 August 2022 (09:00 - 16:00)

Emperors Palace: Convention Centre

Hazard Identification & Risk Assessment Course

18 August 2022 (08:30 - 16:00)

Interactive Online Course

Shop Steward Training

19 August 2022 (09:00 - 16:00)

Interactive Online Course 

How to win an unfair dismissal case at the CCMA / Bargaining Council

25 August 2022 (09:00 - 16:00)

Interactive Online Course

Managing Poor Performance/ Incapacity

25 August 2022 (09:00 - 13:00)

Interactive Online Course

Compensation for Occupational Injuries and Diseases Course

26 August 2022 (08:30 - 16:00)

Interactive Online Course

 

September

Retrenchments Simplified

02 September 2022 (09:00 - 12:00)

Interactive Online Course

Introduction to Mediation New Course

08 September 2022 (09:00 - 16:00)

Interactive Online Course

Basic Labour Relations

09 September 2022 (09:00 - 16:00)

Cape Town: Protea Hotel Tyger Valley

Negotiation Skills New Course

22 September 2022 (08:30 - 16:00)

Interactive Online Course

 

Our Clients