Unsuccessful unfair dismissal dispute does not necessarily mean the end of the road for civil claims

A recent Labour Appeal Court (LAC) finding is a useful reminder that employers need to be aware that employees' pursuit of their unfair dismissal claims in the CCMA or Labour Court (LC) does not extinguish their claim for enforcement of their contractual rights in terms of their contracts of employment, which the LC has the power to enforce.

In the matter of Archer v Pinelands High School (CA12/18) [2019] ZALAC 70 (25 November 2019), a teacher, following his dismissal from Pinelands High School, lodged an unfair dismissal dispute at the CCMA.  The CCMA determined the dismissal to be substantively and procedurally fair.

The teacher did not institute review proceedings against the arbitrator's award in respect of the unsuccessful unfair dismissal dispute. Instead, he instituted civil proceedings at the LC.  The teacher claimed that the School's Governing Body did not have the authority to remove him as an employee and this constituted a breach of his contract of employment. The LC dismissed the application by holding that it did not have jurisdiction to hear the matter.

On appeal, the LAC held that there are potentially two distinct claims when an employee is dismissed, each with their own cause of action:

  • an unfair dismissal claim for compensation arising from the unfair dismissal dispute; and
  • a contractual claim for the payment of damages arising from the purported breach of contract.

The LAC held that while it is trite that the unfair dismissal claim would go through the ordinary Labour Relations Act process (CCMA to LC), the employee is free to decide whether to pursue the contractual claim in the LC or a High Court which have concurrent jurisdiction to determine a contractual claim in terms of section 77(3) of the Basic Conditions of Employment Act. Accordingly, the LAC upheld the teacher's appeal and remitted the matter back to the LC for determination.


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Webber Wentzel > News > Unsuccessful unfair dismissal dispute does not necessarily mean the end of the road for civil claims
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