Labour Dispute Resolution: Jurisdictional Potholes, Pitfalls and Dongas: Reflecting on Recent Jurisprudence
Authors Rochelle le Roux & Peter le Roux
Affiliations: Professor, Faculty of Law, University of Cape Town; Executive Consultant at ENSafrica
Source: Industrial Law Journal, Volume 43 Issue 3, 2022, p. 1443 – 1472
Jurisdiction refers to the ‘power’ or competence of a court (or other dispute resolution fora) to hear and determine a matter. In the case of labour dispute resolution, the observance of prior procedures, the causes of action pleaded, the characterisation of (and reasons for) disputes, the observance of time periods, the completion of formalities, and the existence of certain pre-determined events or conditions, might all be relevant when determining jurisdiction. While it has been held that unlawful dismissals (as opposed to unfair dismissals) cannot be pursued under the Labour Relations Act 66 of 1995 (LRA), the binary divide between unlawfulness and unfairness continues to be challenged at labour dispute resolution fora. With the help of eleven narratives, each focusing on a particular jurisdictional issue and prefaced by a key question and/or statement, this article considers the jurisprudence of the last five years or so that has either added to, or settled, some of these jurisdictional challenges in labour dispute resolution. Among others, the article also addresses the fallacy that the Labour Court has jurisdiction over all disputes that arise in the context of an employment relationship and considers the extent to which disputes based on unlawfulness can be pursued in terms of the LRA.