After an employee claims that they have been unfairly dismissed, the usual route to follow is to refer an unfair dismissal to the CCMA. The commissioner will then make a ruling and if any party does not agree with the ruling that party can take the matter on review to the Labour Court. However, if the case is not reviewable that is the end of the road, right?
In a recent case of Archer v Public School – Pinelands and Others (C362/17) ZALCCT 10 the employee referred an unfair dismissal case to the CCMA. The commissioner found that the dismissal was both procedurally and substantively fair. The employee would not have been able to take the matter on review as it can only be done if there was a defect in the commissioner’s ruling, ie. if the commissioner committed gross misconduct, gross irregularity, exceeded his/her powers or if the award was improperly obtained.
The employee instituted proceedings in the labour court alleging breach of contract. In short, the employee alleged that his contract of employment was with the public school – Pinelands High School and that the school governing body of the Pinelands High School, a different legal entity, authorised his removal from the premises. He further alleged that the public school took no action to mitigate the effects of the removal from the premises by the school governing body when it came to their attention.
The Labour Court dismissed the case on the grounds that it did not have the necessary jurisdiction to hear the case. On appeal, the Labour Appeal Court found that the Labour Court made a mistake in finding that it did not have the necessary jurisdiction and that any High Court could hear matters of breach of contract as all High courts have inherent jurisdiction. This means that a high court can hear any matter that comes before it unless a statute or rule limits that authority or grants exclusive jurisdiction to another court/forum.
The matter was referred back
to the Labour Court to argue the merits of the case as the Labour Relations
Act, Act 66 of 1995 does not contain any provisions prohibiting a party from
approaching the High Court for relief or grant the CCMA sole jurisdiction to
hear labour matters.
Conclusion
While this case only reaffirmed the common law principle of inherent jurisdiction, employers need to be aware for the possibility of a breach of contract dispute being referred to a High Court even after the case has been dismissed by the CCMA. Similarly, employers need to be aware that they also have recourse against employees who breach employment contracts. This includes cases of restraint of trade, claims for damages caused by the employee and specific performance based on the contract of employment.
ABOUT THE AUTHOR Francois Jordaan obtained his BCom Law degree from the University of Pretoria in 2015 and his LLB degree from the University of South Africa in 2018 and was admitted as an attorney in 2019. Mr Jordaan joined SEESA Pretoria on 1 August 2019 as a legal advisor