Introduction

The relationship between contractual employment rights and statutory labour protections continues to present complex legal challenges within South African law. Although the Labour Relations Act 66 of 1995 (“the LRA”) establishes a comprehensive framework regulating dismissals and unfair labour practices, it does not displace the contractual foundation upon which employment relationships are built.

This principle was reaffirmed in the recent High Court decision of Nkuna v Eskom Rotek Industries SOC Ltd (2024-022546) [2026] ZAGPJHC 634. The case raises a critical question regarding the extent to which an employer is bound by its own internal disciplinary processes, particularly where those processes provide for a final and binding appeal outcome.

Factual Background

Ms Nkuna commenced employment with Eskom Rotek Industries SOC Ltd (“Rotek”) in late 2022. Shortly thereafter, tensions arose when Rotek sought to withdraw its offer of employment based on allegations connected to her previous employment at Eskom. Although this withdrawal was subsequently retracted and Ms Nkuna reported for duty, she was soon placed on precautionary suspension.

A disciplinary enquiry followed, ultimately resulting in a finding of guilt and a recommendation of dismissal in October 2023. In accordance with Rotek’s Disciplinary Code and Procedure (“the Code”), Ms Nkuna exercised her right to appeal the outcome. On 8 January 2024, the appeal chairperson overturned both the finding of guilt and the sanction of dismissal, expressly stating that the effect of the decision was that Ms Nkuna had never been dismissed.

Despite this outcome, Rotek refused to implement the appeal decision. Instead, it maintained that the decision was unfair and subject to review, electing to persist with the dismissal. Ms Nkuna, disputing this stance, approached the High Court seeking contractual relief.

Jurisdiction and the Contractual Nature of Employment

A central issue before the court was whether the matter fell within the jurisdiction of the High Court or whether it was exclusively reserved for the Labour Court under the LRA. Rotek contended that the dispute constituted an unfair dismissal claim. However, the court emphasised that employment relationships retain their contractual character, notwithstanding the statutory framework introduced by the LRA.

The court reiterated that employees are entitled to elect between pursuing statutory remedies or relying on common-law contractual claims. In this case, Ms Nkuna’s claim was firmly grounded in contract, as she sought enforcement of the disciplinary code incorporated into her employment agreement. On this basis, the High Court confirmed its jurisdiction to adjudicate the matter.

The Binding Nature of Disciplinary Appeal Outcomes

The crux of the dispute concerned the interpretation of the term “final” within Rotek’s disciplinary code. The court adopted a purposive approach, concluding that the designation of an appeal outcome as “final” signifies the conclusion of the internal disciplinary process and renders the decision binding on both parties.

In the absence of any contractual provision permitting the employer to revisit or overturn the appeal outcome, Rotek was not entitled to disregard the decision. The court made it clear that an employer dissatisfied with such an outcome cannot resort to self-help but must instead pursue appropriate legal remedies if available.

Breach of Contract 

By refusing to implement the appeal outcome and insisting that Ms Nkuna remained dismissed, Rotek acted in breach of its contractual obligations. Its conduct demonstrated an unequivocal intention not to be bound by the terms of the employment contract, amounting to repudiation.

The court rejected the argument that Rotek’s actions constituted a lawful second dismissal. Instead, it held that the employer’s conduct was fundamentally inconsistent with the agreed disciplinary framework and therefore invalid from a contractual perspective.

Specific Performance as an Appropriate Remedy

Ms Nkuna elected to enforce the employment contract rather than terminate it, seeking specific performance. The court confirmed that specific performance remains an available and appropriate remedy in employment disputes, subject to the court’s discretion.

In considering whether such relief should be granted, the court noted the absence of any evidence suggesting that the employment relationship had irretrievably broken down. On the contrary, Rotek’s disregard for its own processes weighed heavily in favour of enforcing the contract.

The court ultimately granted relief declaring the employment contract to be extant, ordering payment of outstanding and ongoing remuneration, and directing that Ms Nkuna be permitted to resume her duties.

Practical Implications

This judgment underscores the importance of recognising that disciplinary codes incorporated into employment contracts are not merely procedural guidelines but binding instruments with legal force. Employers who undertake to follow such processes must adhere to them strictly, particularly where those processes promise finality. 

The decision serves as a caution against unilateral action in the face of unfavourable internal outcomes. Where employers fail to honour their own procedures, they expose themselves to significant contractual liability and judicial intervention.

Conclusion

The decision in Nkuna v Eskom Rotek Industries SOC Ltd reaffirms that the contractual dimension of employment relationships remains both relevant and enforceable. While the LRA provides an essential statutory framework, it does not permit employers to disregard their own contractual commitments.

Where a disciplinary process culminates in a final and binding outcome, that outcome must be respected. The judgment highlights the principle that internal procedures carry real legal consequences and that adherence to them is not optional but obligatory.

Written by Kerri Stewart, Attorney, SchoemanLaw Inc