James v Eskom Holdings BPK (C881/2014)  ZALCCT 70 (7 December 2015) per Steenkamp J.
The Labour Court was bound by the LAC judgment in Edcon v Steenkamp  6 BLLR 549 (LAC) and could no longer wait for the final judgment of the Constitutional Court. Two employees had their services terminated for a reason related to alleged misconduct. In the CCMA they were awarded compensation for the unfair procedure, but substantively the dismissals were regarded as fair. Before Steenkamp J it was argued that the employer’s failure to comply with the procedure in a collective agreement, which was incorporated in their employment contracts, meant the dismissals were unlawful and invalid and in effect that they were never ‘dismissed’. But the employees had based their cause of action on alleged unfairness not unlawfulness and were now arguing that the CCMA lacked jurisdiction and had acted beyond its powers in arbitrating the dispute. At issue was also the right of senior management to overturn a ‘recommendation’ of the chair of an enquiry and summarily end the employment of two employees.