In a recent judgment (available at SAFLII), the Labour Appeal Court (“the LAC”) has decisively reaffirmed a cornerstone principle of South African labour law: challenges to breaches of the Labour Relations Act (“the LRA”) must be pursued through the LAC's dedicated mechanisms to secure an LRA remedy. Labour fora cannot entertain claims framed around the notion of an "unlawful dismissal."
The LRA fundamentally transformed dismissal disputes by abolishing the pre-1995 principle of "unlawful dismissals." Instead, it introduced a statutory test of fairness under sections 185 and 186 of the LRA. Employees alleging an unfair dismissal must refer the matter to the CCMA or a bargaining council for conciliation and arbitration, or approach the Labour Court for adjudication under section 191. Only then can remedies like reinstatement, re-employment, or compensation be consider, should it be determined that the dismissal was unfair.
The judgment underscores this shift. When the Labour Court reviewed the arbitrator's award it correctly did so on reasonableness grounds and found that the award was reasonable and that there was no basis to interfere. However, the LAC went further, scrutinizing the core cause of the disgruntled employee’s action and stated: "The LRA did away with unlawfulness of dismissal and replaced it with unfairness. Therefore, the Labour Court... does not have jurisdiction to make a declaratory order for unlawfulness of dismissal."
Critically, the LAC held that where a claim is predicated on "unlawful dismissal," the Labour Court lacks jurisdiction entirely. Its orders become a nullity, requiring no formal setting aside – the merits need not even be addressed. Labour fora are "creatures of statute" bound by the LRA's dispute-resolution framework.
Key Takeaway for Employers and Employees:
It is imperative that a dispute is framed within the mechanisms of the LRA, should litigants approach the labour fora with the context of LRA remedies.