By Andries Cornelissen B. Proc, Practical Legal Training, Accredited and Certified Mediator, International Accredited and Certified Mediator London School of Mediation, Certified and Accredited Conflict Coach, Practicing Associate: The Association of Arbitrators, Certified and Accredited AHI Representative



It is important to note that not only the Labour Court has jurisdiction on disputes between employer and employee and therefore certain matter can be referred to the High Court for adjudication.

Such litigation would, however, be very costly for the employer in terms of legal fees. It is therefore important that you obtain expert legal guidance from us in all labour disputes.

One should not forget that the majority of employee disputes is structured within the ambit of contract. The contract of employment (which flows to standing and written standard operating procedures that flow to written policies and procedures that flow to the disciplinary code) forms the substratum of the agreement with employees. The employer – employee relationship is thus based on contract. 

The High Court has the jurisdiction to scrutinise and rule on the contract within the ambit of the dispute.


The applicant in Baloyi v Public Protector and Others 2021 (2) BCLR 101 (CC) was a former Chief Executive Officer of the Public Protector (PP). The applicant was employed on a five-year contract that provided for a six-month probation period, which could not be extended for more than 12 months. At the end of the probation period, the employer would be entitled to either terminate the applicant’s appointment or confirm it. 

Several months after the applicant’s probation period ended, she was informed that the employer was unable to confirm her permanent employment. The applicant launched an urgent application in the High Court contending that the termination of her employment was unlawful, and that the PP had not complied with her constitutional obligations in terms of s 181(2) of the Constitution. The High Court dismissed the application on the basis that it lacked the jurisdiction to deal with it. 

The applicant then appealed directly to the Constitutional Court. She sought a review of the decision to terminate her employment and an order for her reinstatement. She also sought a declaratory order that the PP violated her constitutional obligations under s 181(2) of the Constitution. The applicant challenged the High Court’s ruling that it lacked jurisdiction to deal with the matter.

The CC granted leave for a direct appeal in relation to the jurisdictional challenge. However, it refused leave to appeal in relation to the merits, that is, the review relief and the declaratory relief.

The central issue was thus whether, in terms of the Labour Relations Act 66 of 1995 (the LRA), the High Court and LC enjoyed concurrent jurisdiction over an alleged unlawful termination of a fixed-term contract of employment. 

Section 157(2) of the LRA provides that ‘[t]he Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened violation of any fundamental right entrenched in Chapter 2 of the Constitution … and arising from (a) employment and from labour relations; (b) any dispute over the constitutionality of any executive or administrative act or conduct, or any threatened executive or administrative act or conduct, by the state in its capacity as an employer; and (c) the application of any law for the administration of which the Minister [of Labour] is responsible’. 

The court affirmed that s 157(1) does not afford the LC general jurisdiction in employment matters. Section 157(1) provides that ‘[s]ubject to the Constitution and section 173, and except where [the LRA] provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of [the LRA] or in terms of any other law are to be determined by the Labour Court’. By virtue of s 157(2) of the LRA, the High Court and the LC share concurrent jurisdiction in respect of employment-related disputes over which the LC does not have exclusive jurisdiction. 

This means that the High Court’s jurisdiction is not ousted by s 157(1) simply because a dispute falls within the overall sphere of employment relations. The LC’s exclusive jurisdiction extends to disputes for which the LRA creates specific rights and remedies, including, for example, unfair dismissal disputes.

The court, as per Theron J (Mogoeng CJ, Jafta, Khampepe, Madlanga, Majiedt, Mhlantla, Tshiqi JJ, Mathopo and Victor AJJ concurring) held that the termination of a contract of employment has the potential to found both a claim for relief for infringement of the LRA and also a contractual claim for enforcement of a right that does not emanate from the LRA. The litigant must decide which cause of action to pursue. 

The applicant had advanced a claim for contractual breach and had expressly disavowed reliance on the provisions of the LRA. While the applicant might also have a claim for unfair dismissal in terms of the LRA, nothing in the LRA required her to advance that claim in the LC. As for the public law basis for the review relief and the declaratory relief based on s 182(1) of the Constitution, neither of those claims fell within the exclusive jurisdiction of the LC, in terms of s 157(1) of the LRA. The High Court had erred in dismissing the applicant’s application on the basis that it was ‘essentially a labour dispute’ and that the High Court’s jurisdiction was not engaged. The applicant’s appeal against the High Court’s finding on jurisdiction thus had to be upheld. The CC remitted the matter to the High Court for hearing de novo.

Andries Cornelissen from Legal Hero

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