Fairness, Finality, and the Evolving Meaning of Labour Rights in South African Law

The Foundational Role of the LRA

In NEHAWU v University of Cape Town and Others [2003] 24 ILJ 95 (CC), the Constitutional Court affirmed that one of the primary purposes of the LRA is to give effect to the rights in section 23 of the Constitution. The Court stressed that while the LRA gives substance to the right to fair labour practices, the content of the concept must be developed primarily through decisions of specialised tribunals such as the Labour Court (LC) and the Labour Appeal Court (LAC).

Enforceability of Settlement Agreements

In Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another [2016] ZACC 33; 2016 (12) BCLR 1313 (CC); [2017] 1 BLLR 1 (CC), the Constitutional Court upheld the enforceability of a settlement agreement in which the employee waived his right to pursue an unfair dismissal claim. The Court found that such agreements are not contrary to public policy when entered into freely and voluntarily between equal parties:

“The public, and indeed our Courts, have a powerful interest in enforcing agreements of this sort. The applicant must be held bound” (para 24).

The Court emphasised the finality of settlements and the need to uphold agreements that resolve disputes conclusively.

Balancing Fairness

In NUMSA v Vetsak Co-Operative Ltd and Others [1996] ZASCA 69; 1996 (4) SA 577 (A); [1996] 6 BLLR 697 (AD), the Supreme Court of Appeal held that in assessing fairness, a balance must be struck between the interests of employers and employees. The Court noted that a moral or value judgment must be applied to the facts in light of the objectives of the LRA.

The Role of Commissioners in Dismissal Disputes

In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC), the Constitutional Court clarified that Commissioners are tasked with determining whether a dismissal is fair, not with substituting their own decision for that of the employer. Commissioners must consider all relevant factors without deferring to the employer’s decision.

Factors Relevant to Fairness Include:

• The vulnerability of employees
• The importance of job security
• The seriousness and purpose of the rule breached
• Harm caused and impact on the trust relationship
• Precedent-setting considerations
• Mitigating factors such as prior service and training needs
• The effect of dismissal on the employee

These factors are to be considered alongside general industrial norms, as found in case law, CCMA awards, the Codes of Good Practice, and guidelines issued by the CCMA and NEDLAC, as contemplated in section 138(6) of the LRA.

Employer Justification and Timing

In Fidelity Cash Management Services v CCMA and Others [2007] ZALAC 12; [2008] 3 BLLR 197 (LAC), the LAC reaffirmed that the fairness of a dismissal must be judged based on the reasons provided by the employer at the time of dismissal.

Automatically Unfair Dismissal for Exercising Rights

In Sweet James v Namcon Logistics (Pty) Ltd [2021] 1 BLLR 104 (LC), the Labour Court addressed a claim of automatically unfair dismissal under section 187(1)(d) of the LRA. The employee had sustained a work-related shoulder injury and reported it in terms of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 (COIDA). After repeated efforts to pursue his injury-on-duty claim and grievances related to the employer’s inaction, the employee was subjected to disciplinary charges and eventually dismissed.

The Court had to determine whether the dismissal was for misconduct or in retaliation for asserting his rights. Referring to DBT Technologies (Pty) Ltd v Garnevska [2020] 9 BLLR 881 (LAC), the Court applied the test of legal causation—whether the employee’s protected conduct was the main or dominant cause of the dismissal.

The Court concluded that:

“When the employee persisted with his questioning about his claim, suddenly he could do no right.”

The dismissal was found to be automatically unfair. The employee was awarded compensation equal to 24 months’ remuneration. The Court affirmed that disciplinary action must be legitimate and not vindictive.

The jurisprudence of South Africa’s labour courts continues to underscore the importance of fairness, finality, and the legitimacy of processes in employer-employee relations. From settlement agreements to disciplinary procedures, the courts have consistently reaffirmed that fairness must be assessed contextually, with due regard to constitutional values and statutory objectives. Vindictive or retaliatory actions by employers are incompatible with the legal protections afforded to employees, and the courts remain steadfast in their role as guardians of these fundamental rights.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.