Recently the Constitutional Court has stressed the ‘fundamental constitutional importance of the principle of legality, which requires invalid administrative action to be declared unlawful’.   The discretionary choice of an ‘appropriate’ or ‘just and equitable’ remedy follows on the fundamental finding and declaration of unlawfulness.   Arguably this approach should also apply to unlawful or wrongful dismissals and  not deprive employers of the opportunity of proving that the dismissals were nevertheless valid and fair.

Unlike the High Courts the Labour Courts are courts of law and equity.   That should allow them to overlook unlawfulness if it is regarded as equitable or fair to do so.   Fairness must apply to both employers and employees.   There is no doubt that not all lawful terminations of employment will be regarded as fair.   Likewise not all unlawful terminations should automatically be regarded as null and void.   Surely there is a need to consider the fairness of the dismissal as well?

Based on the thinking of the highest court there does not appear to be any good reason why the Labour Courts should not apply a two-stage approach.   A declaration of the breach of the principle of legality (wrongful or unlawful dismissal) should not prevent the granting of an appropriate remedy.   The Labour Courts are empowered to do this because  they are courts of law and equity.   The intention must have been to allow the Labour Courts to achieve just and equitable results that are fair to all parties.

In the recent post  Imagining lawful and fair mass dismissals reference was made to two recent Labour Appeal Court judgements.   It seems that after declaring the dismissals were unlawful and of no force and effect no consideration was given to whether or not they were fair.   Arguably the Labour Courts should follow the lead given by the Constitutional Court in the cases referred to and followed by justice van Niekerk in the NEASA v Minister of Labour – JR3062/11 (LC).

Justice van Niekerk had no option but to declare that the Minster of Labour had breached the principle of legality but was still prepared to suspend the order for four months to allow the Minister to remedy the situation.

If it is held that an employer has breached the principle of legality by terminating an employment contract in breach of the BCEA or the common law it should not prevent the Labour Courts from awarding reasonable notice pay instead of regarding the dismissal as automatically null and void.