Alleged unlawful termination of a contract of employment in terms of section 77(3) of the Basic Conditions of Employment Act, as it had not been preceded by a disciplinary hearing
Case:
SA Municipal Workers Union on behalf of Morwe v Tswaing Local Municipality & others (2022) 43 ILJ 2754 (LAC).
Background:
The appellant trade union had brought an urgent application in the Labour Court in terms of section 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA) claiming that their member’s employment contract with the respondent municipality had been unlawfully terminated as it had not been preceded by a disciplinary hearing. It sought an order setting aside the termination and reinstating the employee’s contract of employment.
The Labour Court dismissed the application, firstly on the basis that it lacked jurisdiction to hear the pleaded case and secondly that, even if it did have jurisdiction, the pleaded case had not been established on the papers.
On the question of jurisdiction, the court held that section 77(3) had to be interpreted to mean that the jurisdiction of the Labour Court was engaged only in respect of a contract of employment during its existence and not once it had been terminated. The court held further that, since the claim for relief had been made in terms of the BCEA and not the Labour Relations Act 1995 (LRA 1995), and since no right to a disciplinary hearing before dismissal was established in the employee’s contract of employment, the application would have failed even if the court did have jurisdiction. The union appealed to the Labour Appeal Court.
On the question of the Labour Court’s jurisdiction, the LAC disagreed with the court a quo, holding that the notion that the phrase ‘concerning a contract of employment’ in the BCEA meant that a dispute about the termination of that contract was outside the jurisdiction of the Labour Court was misconceived.
The section, firstly, conferred on the Labour Court concurrent jurisdiction with the civil courts and, secondly, limited the scope of that concurrency to matters ‘concerning a contract of employment’. This meant that whatever a civil court could hear ‘concerning a contract of employment’ was what the Labour Court could hear. Whether or not a contract had been cancelled validly or had been breached remained a dispute ‘concerning a contract of employment’ and fell within the jurisdiction of the Labour Court.
As far as the merits of the case were concerned, the union had disavowed any reliance on the LRA 1995 so, despite the language used in the application, the LAC treated the matter as a claim for specific performance of the contract.
On the pleaded case the employee’s right to a disciplinary hearing, either express or implied, had to be found in the employment contract. The fact that the contract entitled the employer to terminate in terms of labour legislation and that this might include a disciplinary hearing did not afford the employee a contractual right to such hearing. Although the employer could have held an enquiry, the contract did not compel it to do so.
Conclusion:
The appeal was therefore dismissed with costs.
