New case shows that the road does not always end at the CCMA for South African employees

Employers should be mindful that employees are not limited to the CCMA when dealing with unfair dismissal claims, say attorneys at Webber Wentzel Johan Olivier, Nivaani Moodley and Kalene Watson.

The attorneys cited the recent Labour Appeal Court case of Archer v Pinelands High School where 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.

In this case, the teacher did not institute review proceedings against the CCMA’s ruling. Instead, he instituted civil proceedings at the Labour Court, the attorneys said.

“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 Labour Court dismissed the application by holding that it did not have jurisdiction to hear the matter,” Webber Wentzel said.

On appeal, the Labour Appeal Court 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; andA contractual claim for the payment of damages arising from the purported breach of contract.

“The Labour Appeal Court held that while it is trite that the unfair dismissal claim would go through the ordinary Labour Relations Act process (CCMA to Labour Court), the employee is free to decide whether to pursue the contractual claim in the Labour Court 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,” Webber Wentzel said.

“Accordingly, the Labour Appeal Court upheld the teacher’s appeal and remitted the matter back to the Labour Court for consideration.”