The Use of Contractual Recourse in Dismissal Disputes: Settling the Dilemma
Author Kamalesh Newaj
Affiliations: Senior Lecturer, Department of Mercantile Law, University of Pretoria
Source: Industrial Law Journal, Volume 43 Issue 4, 2022, p. 2189 – 2218
For over twenty years the courts have been grappling with the question whether employees have common law contractual recourse to challenge disputes that stem from their dismissals. There have been two schools of thought. The one promotes the use of both the statutory recourse — the Labour Relations Act (LRA) — and common law contractual recourse on the basis that the LRA has not expressly abolished contractual recourse and the Basic Conditions of Employment Act (BCEA) endorses its use. The other discredits the continued use of contractual recourse on the basis that two parallel systems of law create uncertainty and fail to respect the specialised framework that has been promulgated in the LRA. This has resulted in divergent approaches being advocated by the courts. The conflicting decisions of the Constitutional Court exacerbate the uncertainty. In some cases, the use of the statutory framework has been endorsed, while in the recent Constitutional Court decision of Baloyi v Public Protector & others a different approach was followed. This article seeks to analyse the development of the law on the permissibility of contractual recourse in disputes stemming from dismissal that has now culminated in the decision of Baloyi.