Ndaba v T – Systems (Pty) Ltd (JS788/2012) [2015] ZALCJHB 346; [2016] 1 BLLR 60 (LC) (7 October 2015) per Tlhotlhalemaje AJ.

The Labour Court refused to grant the relief sought in a statement of claim based on the wrongful and unlawful termination of employment.  It was alleged that the employer failed to comply with the provisions of s 189A of the LRA.  Even if the ‘dismissals’ were premature this only meant that they might be proceduraly unfair.  Any claim for procedural unfairness must be brought in the Labour Court in terms of s 189A(13) of the LRA.

Tlhotlhalemaje AJ applied the reasoning in Edcon v Steenkamp and others [2015] 6 BLLR 549 (LAC), which overruled two earlier LAC judgments and confirmed that employees relying on procedural unfairness must apply under s 189A(13), and that the Labour Court lacks jurisdiction to deal with procedural issues under s191(5)(b)(ii) of the LRA.

Comment:

The final judgment of the Constitutional Court in the Edcon matter is anxiously awaited as it should resolve the tensions between wrongfulness, unlawfulness and unfairness.