Employment law update – identifying the correct cause of action

March 1st, 2018

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Ekurhuleni Metropolitan Municipality v SAMWU and Others (LAC) (unreported case no JA56/2015, 18-2-2017) (Sutherland JA with Musi JA and Coppin JA)

On 11 February 2011 an internal disciplinary hearing was brought to an abrupt end when violence broke out. The chairperson was assaulted, his cellphone thrown against the wall and the recording device damaged.

All the employees who came before the chairperson were dismissed for their actions on 11 February for either participating in, alternatively inciting unruly behaviour. The employees were informed of their dismissals by way of a notice without being subjected to an internal hearing.

The second respondent employee referred a dismissal dispute to the bargaining council. At arbitration the employee denied she took part in or incited the violence on the day in question. The appellant employer led evidence of witnesses who testified that she tried to prevent others entering the room to assist the chairperson and was shouting ‘hit him, hit him’.

In accepting the employer’s version, the arbitrator found the employee’s dismissal substantively fair, but procedurally unfair. Relying solely on the Labour Relations Act 66 of 1995 (LRA), the arbitrator found there was no reason why the employer could not hold an inquiry as envisaged in sch 8 of the Code of Good Conduct annexed to the LRA. However, given the magnitude of the misconduct, the arbitrator declined to award the employee any compensation flowing from her procedurally unfair dismissal.

On review, the first respondent union, on behalf of the employee, raised the following grounds to set aside the award –

  • the arbitrator erred in not awarding compensation after having found the employee’s dismissal procedurally unfair;
  • the arbitrator was wrong to reject the employee’s version of events;
  • the finding that the employee showed no remorse could not be sustained in the absence of an internal inquiry; and
  • the dismissal was in breach of a collective agreement and the arbitrator’s failure to address this point was reason alone to set aside the award.

The Labour Court (LC) focussed largely on the last ground raised. It was common cause that a collective agreement between the union and employer afforded an employee the right to a disciplinary hearing before an employee is met with any sanction. The court found that the arbitrator’s failure to address the non-compliance with the collective agreement resulted in him misdirecting himself as to the nature of the inquiry and that he ought to have ‘examined and applied the collective agreement’. The court set aside the award and remitted the matter to the bargaining council.

On appeal the employer argued that the court a quo misdirected itself by failing to recognise the proper cause of action referred to arbitration – the employee referred an unfair dismissal dispute and not a dispute about the application of a collective agreement.

In addressing this argument, the Labour Appeal Court (LAC) held:

‘The submission is sound. Indeed, a claim based on a breach of a collective agreement is one that is regulated by section 24 of the LRA. The dispute referred in this case is about an alleged unfair dismissal and is regulated by section 191 of the LRA. Moreover, the relief sought is that which is regulated by section 193 of the LRA which provides remedies for unfair dismissals, not breaches of a collective agreement.’

In addition, the LAC referred to its own judgment in Highveld District Council v Commission for Conciliation, Mediation and Arbitration and Others (2003) 24 ILJ 517 (LAC) and quoted the following extract:

‘The relevant issue referred to the arbitrator was whether the respondent’s dismissal was procedurally fair. Put differently, the respondent sought to vindicate his right in terms of s 185 of the Labour Relations Act 66 of 1995 (the Act) not to be unfairly dismissed. More specifically, the respondent sought to vindicate his right in terms of s 188(1)(b) of the Act to be dismissed only in accordance with a fair procedure. It is a right separate and distinct from the respondent’s contractual rights in terms of the collective agreement.

It does not follow … that a contractual procedure does not give rise to contractual rights that a contracting party can enforce in the appropriate forum and in the appropriate manner. In this case, however, we are not called upon to adjudicate a contractual right, but a statutory right to a dismissal that is procedurally fair.’

Following this the LAC held that the court a quo incorrectly approached the matter by conflating an unfair dismissal dispute with a dispute concerning the application of a collective agreement.

In assessing the arbitrator’s findings against the test set out in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC), the LAC concluded that the remaining attacks raised against the award stood to fail. The LAC did, however, observe, on two separate occasions in its judgment, that in the absence of a cross review against the finding that the employee’s dismissal was procedurally unfair, it could not disturb the arbitrator’s finding on this specific issue.

The appeal was upheld with costs and the arbitration award confirmed.


It is clear that the employee’s contractual right to a disciplinary hearing before being dismissed, as found in the collective agreement, was breached. Thus, it was open for her to refer a contractual dispute to the LC and sue the employer for damages. Had she embarked on this cause of action, her dispute would fall squarely within the confines of a contractual dispute where the tenet of lawfulness as opposed to fairness, would be the determining yardstick.

Elaborating on this point, in Denel (EDMS) Bpk v Voster 2004 (4) SA 481 (SCA), the employer adopted a two-stage approach in disciplining its employees; an employee would first come before a disciplinary committee, which if finding the employee guilty of the charge, would recommend the sanction to certain identified managers. The policy gave the managers the authority to accept or reject the committee’s recommendations. This procedure formed part of the employee’s terms and conditions of employment.

The respondent employee was subjected to a hearing before the disciplinary committee and having been found guilty of the charges put to him, the committee took it on itself to dismiss the employee without following the second stage of the disciplinary process. The employee successfully sued the employer in the High Court for breach of contract. On appeal, the Supreme Court of Appeal (SCA) held that the disciplinary policy adopted by the employer was a fair one, but rejected the argument that the alternate process used to dismiss the employee was ‘just as good’. When an employer agrees to or compiles with a specific policy, it is not a defence in a contractual dispute to argue that any deviation from the policy is just as fair as the policy itself. The SCA held the employer was obliged to follow and implement its own policy and could not unilaterally depart from same. The appeal was dismissed with costs.

This article was first published in De Rebus in 2018 (March) DR 43.