Employment law update – A second bite at the proverbial cherry

March 1st, 2012

Gauteng Shared Services Centre v Titus Sello Ditsamai (LAC) (unreported case no JA44/09, 7-12-2011) (Davis JA)

By Moksha Naidoo

In the case of MEC, Department of Education, KwaZulu-Natal v Khumalo and Another (2010) 31 ILJ 2657 (LC) Pillay J, in discussing the principle of res judicata, said the following, which included a quote from LTC Harms Amler’s Precedents of Pleading 3ed, at para 32:

Res judicata literally means “a matter already judged”; the doctrine is that the matter cannot be judged again. This is a presumption founded on public policy requiring litigation not to be endless, to be in good faith and to prevent the same claim being demanded more than once.’

The question in this case was whether or not this principle finds favour in a matter where an employee claims an unfair dismissal and unfair discrimination arising from the same set of facts and between the same parties.


The appellant employer advertised for the posts of forensic auditors. Despite the advert being silent as to whether the posts were permanent or not, the respondent employee responded to the advert and was offered a six-month contract as a temporary junior forensic auditor.

Some time into his contract, the respondent became aware of two other appointees, a white male and another of Indian decent, both being appointed as forensic auditors on a permanent basis, with the latter appointee responding to the same advert as the respondent.

Aggrieved that he was on a six-month temporary contract while the other two appointees were offered permanent positions, the respondent lodged a grievance alleging victimisation and biased treatment. On the same day the respondent was dismissed.

The arbitration

The employee referred his dismissal dispute to the appropriate bargaining council, alleging that his dismissal was substantively and procedurally unfair. Acting in terms of s 186 of the Labour Relations Act 66 of 1995 (LRA), which deals with unfair dismissals, the arbitrator concluded that the dismissal was unfair and ordered the employer to compensate the employee in the amount of R 43 200. Arriving at his conclusion, the arbitrator found that the only reason for dismissing the employee was as a result of him lodging his grievance with the employer.

Having accepted the payment, the employee referred a second dispute to the council.

Relying on the Employment Equity Act 55 of 1998 (EEA), the employee’s second claim was one for unfair discrimination. The employee claimed that he was unfairly discriminated against on the basis that other successful candidates for the same post, who were from different races to himself, were offered permanent positions while he was offered a six-month temporary contract. The matter remained unresolved after conciliation and the employee approached the Labour Court for adjudication.

The Labour Court

As a point in limine, the employer raised the issue of res judicata in the Labour Court, arguing that the subject matter of the second dispute was based on the same grounds as that which was concluded before the arbitrator. The court, per Molahlehi J, drew distinction between the employee’s two claims: The first being an unfair dismissal dispute founded in terms of the LRA, which dealt specifically with whether or not the employee’s right not to be unfairly dismissed was infringed, while the second claim relied on a separate right, found under the EEA, not to be unfairly discriminated against. Thus the subject matter that formed the basis for the second claim would be whether or not the employee was unfairly discriminated against. The court dismissed the employer’s point in limine.

The Labour Appeal Court (LAC)

Against this dismissal, the employer approached the LAC on appeal. The employer argued that the EEA did not deal with dismissal disputes but rather dealt with discrimination short of dismissal. In justifying this position, the employer relied on s 10(1) of the EEA, which reads:

‘In this section, the word “dispute” excludes a dispute about an unfair dismissal, which must be referred to the appropriate body for conciliation and arbitration or adjudication in terms of chapter VIII of the Labour Relations Act.’

In light of this, the employer argued that the employee split the same set of facts to create two causes of action. In doing so, according to the employer, the exact same facts used to determine the dismissal dispute would be drawn on to determine the unfair discrimination dispute, which in effect attracted the principle of res judicata.

To this, the LAC held the following at paras 15 to 18:

‘The decision upon which appellant relies in the present dispute was based on the following factual matrix: A contract of limited duration, that is for six months, had been concluded between the parties, respondent had a reasonable expectation that he would have been employed for the defined period and that, without justification, appellant terminated the contract prior to the completion of the specified term. On the basis of these facts, the arbitrator found the dismissal to be substantively and procedurally unfair and thus awarded compensation.

By contrast, the case brought before the court a quo on the basis of a breach of the EEA was predicated on respondent’s contention that a white and Indian person had been preferred to him, when appointments were made pursuant to the advertisements placed by appellant on 4 April 2004. …

When the relevant facts are set out thus, it is clear that the second case brought by respondent was predicated on an allegation of unfair discrimination as set in section 6 of the EEA. This dispute requires a completely different determination to that which confronted the arbitrator, which turned on the fairness of an early termination of the contract. In the case based on the EEA, the court was required to make a determination as to whether there had been unfair discrimination in the refusal to appoint the respondent to a permanent position and the concomitant preferences given to other applicants who were of a different racial group.

For this reason, it cannot be said that either the same issue of fact or law, which was an essential element in the determination by the arbitrator, applies in respect of the dispute brought under the EEA.’

The appeal was dismissed with costs.

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

This article was first published in De Rebus in 2012 (March) DR 52.