Amcu v Northam Platinum Ltd (J1671/16) [2016] ZALCJHB 309  [2016] 11 BLLR 1151 ; (2016) ILJ 2840 (19 August 2016) per Snyman AJ

The LC struck an application off the roll because it was not urgent.  But it was clearly accepted that a dismissal could be unlawful and invalid because of a contractual breach.  But this in itself does not allow applicants to

‘jump the queue of all other dismissed employees relying on the provisions of the LRA waiting for their turn in Court.  This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court.   But other than that it holds no particular magic’.

Excerpts without footnotes

[1]     This matter is an illustration that where it comes to employment law, ingenuity shows little bounds.  But even ingenuity, no matter how noble the objective, must still be applied within the parameters of certain prescripts.

[2]     The applicants brought an urgent application in terms of which the applicants sought relief to the effect that the dismissal of the individual applicants by the first respondent on 5 July 2016 be declared to be invalid and/or unlawful in that such dismissal:-

(1) was in breach of Section 23 as read with Section 83 of the Mine Health and Safety Act;

(2) was in breach of the individual applicants’ constitutional rights to dignity, integrity and freedom and security of person; and

(3) was in breach of their contracts of employment based on an implied term relating to insuring of the health and safety of the individual applicants.

[3]     The matter was strenuously opposed, with a plethora of points in limine.  It was disputed there was any unlawful dismissal.  One of the points raised also specifically was that the application was not urgent.   When the matter was argued before me on 18 August 2016, only the issue of urgency was addressed.

. . . . .

[5]     But, and as a result of the judgment in SABC, an unforeseen, and I am quite sure unintended, consequence has arisen.  The judgment has been taken to now establish some sort of licence for litigants to approach the Labour Court on an urgent basis challenging dismissals as being unlawful.

There seems to be a general view that the fact that the dismissal may be considered to be unlawful, and is challenged on that basis, is in itself is a basis of urgency   It needs to be made clear that such an approach would be wrong.   In fact, this was recognized by Lagrange J himself in SABC, where the learned judge said:

‘The mere fact that the applicants have been dismissed in breach of their contracts of employment might not in and of itself warrant urgent relief.  What makes the application urgent is related to a number of factors.  ….’.

[6]     Whilst it may be so that a dismissal could in particular circumstances, and where the LRA is not relied upon, be considered to be unlawful and consequently invalid because of a specific provision in a contract of employment which has been breached, this cannot per se serve to jump the queue of all other dismissed employees relying on the provisions of the LRA waiting for their turn in Court.  This kind of situation is merely another cause of action upon which the termination of a contract of employment can be challenged in the Labour Court.   But other than that it holds no particular magic.