The Labour Appeal Court in National Electronic Media Institute of SA v Buthelezi (dated 9 July 2004, unreported case JA 19/03) disallowed an appeal from the Labour Court (per Pammenter AJ). It was a unanimous judgment (per Willis JA with Zondo JP and Jafta AJA concurring).
Since 2002 the Labour Court has been prepared to exercise its powers and provide remedies for contractual breaches governed by the common law as opposed to causes of action based on unfairness.
On 30 January 2003 the Labour Court had ordered:
“1. It is declared that the continued refusal by the Respondent (employer) to allow the Applicant (employee) to tender his services and to perform his duties in terms of his contract of employment between the parties is unlawful and amounts to a repudiation of the said contract;
2. The Respondent s ordered to pay the Applicant’s remuneration for the period 6 April 2002 until date of this order, and thereafter to pay his remuneration in the ordinary course as provided for in his contract of employment;
3. The Respondent’s obligation, provided for in paragraph 2 above, to continue paying the applicant in the ordinary course in terms of his contract of employment is subject to the Applicant rendering services in terms of such contract, if called upon to do so by the Respondent;
4. Nothing in this order shall be construed as precluding the Respondent from taking steps in terms of the Labour Relations Act 66 of 1995 as regards the applicant’s employment;
5 The respondent is ordered to pay 75% of the applicant’s taxed costs of this application.”
Extracts from the LAC judgment
“[8] . . . The employee relies on his common law rights. In terms of section 77(3) of the Basic Conditions of Act No 75 of 1997, ‘The Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract.’ It is clear that the Labour Court had jurisdiction to hear and determine this matter. There is no merit in the submission that the Labour Court did not have jurisdiction to grant the relief which it did”.
“[9] The Merits.
At common law, until an employee’s services have lawfully been terminated, an employer is obliged to remunerate the employee upon the tender, by the employee, of his or her services but the employer is not, however, obliged to make use of the employee’s services. (See, for example, Smit v Workmen’s Compensation Commissioner 1979 (1) SA 51 (A); at 56F-G; Toerien v Stellenbosch University 1996 (1) SA 197 (C) at 201B-C; National Union of Textile Workers v Jaguar Shoes (Pty) Ltd1987 (1) SA 39 (N) at45H-46I.
In this matter the employee’s claim is dependent, essentially, upon whether there was a valid and enforceable contract of employment between himself and the appellant during the relevant period and whether, during that same period, he tendered his services. It is common cause that he did, indeed, tender his services. It is common cause that the employer did not accept this tender. In these circumstances, the employee would be entitled to payment of his remuneration provided there was a valid contract of employment between the parties. The employer’s defence is that the employee had been dismissed during the relevant period and, because of this, it was not, so the argument went, obliged to pay the contested remuneration”.
“[10] In the light of the above, the determinative issue both in the Court a quo and before us, was whether the employee had been dismissed prior to the relevant period. If he had been validly dismissed, his application should have been dismissed. If, however, he had not been validly dismissed, the employer’s defence was correctly rejected. The Court a quo found that subsequent to the internal appeal the employee was not a dismissed employee. It found that there was a contract of employment between the appellant and the respondent when the appellant would not allow the respondent to resume his duties. . . . “
Recent decisions
7.12.2011 – Lebu v Maquassie Hills Local Municipality – case J2695/11 (LC) per Van Niekerk J
18.11.2011 – Biyase v Sisonke District Municipality – [2011] JOL 28131(LC) – per Steenkamp J
20.12.2010 – De Beers Group Services (Pty) Ltd v NUM – [2011] 4 BLLR 319; (2011) 32 ILJ 1293 (LAC) per Davis JA
26.11.2009 – Dince v MEC Education North West Province [2010] 6 BLLR 631; (2010) 31 ILJ 1193 (LC) per Molahlehi J