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Settling labour disputes now a slightly simpler process

Settling labour disputes now a slightly simpler process

23rd June 2014

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The sometimes tortuous legal route followed in disputes between employers and the people they hire has become slightly shorter.

Talita Laubscher, Partner at pan-African corporate law firm, Bowman Gilfillan commented that following the amendment of Section 168 of the Constitution by the Constitution Seventeenth Amendment Act of 2013, the Supreme Court of Appeal can (since August last year) no longer decide appeals from the Labour Appeal Court

“Prior to the amendment, employment disputes had a fairly long judicial life. A dispute concerning the fairness of a dismissal for misconduct would be determined by the Commission for Conciliation, Mediation and Arbitration (CCMA) and the aggrieved party might under certain circumstances take the arbitration award on review to the Labour Court.

“The unsuccessful party could appeal to the Labour Appeal Court; an appeal would lie to the Supreme Court of Appeal; and if the matter raised constitutional issues, a further appeal could be lodged at the Constitutional Court.

“The amendment has the effect of eliminating one step in the road to finality,” said Ms Laubscher.

In terms of the amendment to the Constitution, the Supreme Court of Appeal may decide appeals in any matter arising from the High Court of South Africa or a court of a similar status to the High Court. The Labour Court is a superior court that has authority, inherent powers and standing, in relation to employment disputes, equal to that of the High Court. The Labour Appeal Court on the other hand, is a superior court equal to that of the Supreme Court of Appeal in relation to employment disputes.

In respect of employment disputes, the Labour Appeal Court accordingly has the same status as the Supreme Court of Appeals and no appeal would therefore lie from the Labour Appeal Court to the Supreme Court of Appeal.

This however does not necessarily mean that the Labour Appeal Court is the final Court in labour matters, added Samantha Coetzer, Senior Associate at Bowman Gilfillan.

“The Constitution Seventeenth Amendment Act also amended the Constitution so that the Constitutional Court can decide constitutional and non-constitutional matters.

“However, the Constitutional Court can only decide non-constitutional matters if it granted leave to appeal on grounds that the matter raises an arguable point of law of general public importance which ought to be considered by the Constitutional Court.”

As a result, the Constitutional Court will only in limited circumstances, where leave to appeal has been granted, determine non-constitutional matters.

For the most part, the Labour Appeal Court would be the forum where employment disputes are finally determined. However, if a Labour Appeal Court matter raises a constitutional matter or a non-constitutional matter in the form of an arguable point of law of general public importance, an appeal would lie to the Constitutional Court.

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