Causes of action for dismissal in South African labour law

Abstract

For the past eighteen years we have witnessed the dawn of a constitutional dispensation. One of the greatest changes experienced by the South African legal system in modem times has been the enactment of the Constitution containing the Bill of Rights. The Labour Relations Act 66 of 1995 (the LRA) was a product of that Constitution. Most significant was the labour clause, in particular the 'right to fair labour practices'. The Industrial Court established in terms of the Labour Relations Act 28 of 1956, with its power to determine unfair labour practice, played a major role in the development of South African labour law. The Industrial Court ushered in the development of a new labour law system which recognised that employees need protection and that the law of contract is not suited to regulate employment relationship without the creation of a floor of rights for employees. On 11 November 1996, two years after the democratic elections, the legislature established a fresh set of dispute resolution institutions to resolve labour disputes emanating from the LRA. The LRA does not cover the whole sphere of law regulating employer and employee relationships. The focus of the LRA falls on the regulation of collective labour law, the codification of unfair dismissal law and the establishment of dispute resolution institutions. The LRA essentially refers to two types of disputes, namely those referred in the labour legislation and those based on constitutional grounds. The LRA does not regulate disputes emanating from the cornmon law contract of employment. This category of disputes is regulated by the Basic Conditions of Employment Act 75 of 1997. The termination of an employment contract has both contractual and statutory implications. In Fedlife Assurance Ltd v Wolfaardt [2001] 12 BLLR 1302 (SCA), the Supreme Court of Appeal has accordingly found that the LRA did not expressly abrogate an employee's cornmon law entitlement to enforce contractual rights, nor did it do so by necessary implication. The court held that the cornmon law right of an employee to claim for damages for breach of contract was not in conflict with the Bill of Rights. Despite the fact that the LRA provides a remedy, the court held that the employee, whose fixed-term contract has been terminated before its full course, can sue the employer for damages for the remainder of his/her contract. The Labour Court in Mangope v SA Football Association [2011] JOL 26612 (LC) has also recently confirmed that in general, the remedies of an employee whose employment contract has been terminated by an employer can be found in either the concept of breach of contract under the common law, or in the unfair labour practice concept under the LRA. The Labour Appeal Court in Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC) has also found that an employee whose fixed-term contract had been terminated prematurely on the grounds of the employers' operational requirements had been dismissed without a fair reason. This conclusion was based entirely on the finding that at cornmon law, an employer may not terminate a fixed-term contract in the absence of an agreement to that effect or material breach by the employee and that the LRA has not amended that principle. A dualistic model has emerged, one based on statute giving effect to the basic right to fair labour practices as contained in the Constitution and on the other hand the contract of employment. The thesis analyses the processes for the resolution of labour disputes, in particular unfair dismissal disputes from the CCMA to the Constitutional Court and further investigates remedies available to a dismissed employee under the common law and the LRA and how these remedies interact with one another. It traverses the problems experienced by the imbrications or the interface between the common law and the LRA and how our courts in a number of cases upheld the common law remedies notwithstanding the availability of remedies in terms of the LRA. It also demonstrates that South African courts have found it difficult to draw a line between competing LRA and common law remedies in dismissal cases. The thesis also surveys the law of dismissal in the UK, Australia, Canada and the US, which have mixed legal systems that are based both on the common law and labour legislation. It also focuses on the labour law systems of these countries in a quest to find a solution to this conundrum. The thesis also looks at the law of dismissal in Germany where the labour courts have exclusive jurisdiction in all labour matters and suggests that South Africa can draw lessons from their model and improve our labour law system. The thesis concludes by making far-reaching suggestions for the resolution of this problem. The thesis concludes by making proposals for a comprehensive labour statute that will regulate all employment-related matters. It also proposes that in terms of that statute, once a remedy is provided, that remedy should be the exclusive remedy of the employee. It also suggests that, as in Germany, the Labour Courts must be clothed with exclusive jurisdiction in all labour matters.