• Lawtons Africa

Claims under the Basic Conditions of Employment Act: clarity at last

Updated: Sep 8

Author: Imraan Mahomed – Director


The Constitutional Court in Amalungelo Workers' Union and Others v Philip Morris South Africa (Pty) Limited and Another (26 November 2019) clarified the position regarding the jurisdiction of the Labour Court in respect of disputes arising from the Basic Conditions of Employment Act, whether contractual or not. It is not necessary for employees to approach a Labour Inspector before instituting proceedings in the Labour Court in respect of claims or disputes relating to matters dealt with under the BCEA. Employees now have direct access to the Labour Court. This measure accords with the constitutional right to directly access courts says Johannesburg law firm Lawtons Africa, practice area lead and director Imraan Mahomed and Senior Associate Tricia Tsoeu.


In this matter, the Constitutional Court considered whether the Labour Court’s jurisdiction under the BCEA is deferred until a matter has been resolved by a labour inspector, appointed under section 63 of the BCEA. This consideration excludes claims concerning a contract of employment which the Labour Court has concurrent jurisdiction with the civil courts to hear and determine says Tsoeu.


The facts leading to this matter arise from two employers having deducted tax in respect of company cars from their employees’ remuneration. The employees alleged that the employers had acted in contravention of section 34 of the BCEA and they instituted proceedings in the Labour Court for an order compelling the employers to refund them for the deducted amounts. Further, the employees sought an interdict restraining the employers from continuing to make the deductions in the future. These are not uncommon claims says Mahomed.


Applying earlier decisions, the Labour Court held that it lacked competence to directly enforce the provisions of the BCEA in the absence of the assertion that those provisions form part of the employment contract or that the Department of Labour and Employment had first investigated the claims. This has been an established defence for claims under the BCEA says Tsoeu.


The Constitutional Court held that the answer in determining whether the Labour Court had jurisdiction to adjudicate the employees’ claim lay in the proper interpretation of the relevant provisions of the BCEA. Specific to section 77 of the BCEA, the Court held that the section does not only advance access to the Labour Courts but it also seeks to limit the claims under the BCEA to the Labour Court. Considering that section 34 of the Constitution guarantees access by the applicants to the Labour Court which must resolve their dispute, the Constitutional Court ultimately held that it is obliged to assign to section 77 of the BCEA a meaning that promotes access to the Labour Court rather than a meaning that prevents that access.


The Court held that section 77(1) confers jurisdiction on the Labour Court in the widest of terms. It declares that the Labour Court has jurisdiction “in respect of all matters” arising from the BCEA. Section 77(3) of the BCEA expands the Labour Court’s jurisdiction to cover disputes arising from contracts of employment even if they are not regulated by the BCEA. In respect of the latter, the jurisdiction is shared with the civil courts. On this Mahomed comments that there has been an upsurge of employment claims which are now drifting across from the Labour Courts to the High Court, Magistrates Court and Small Claims Court. He cautions employers to take claims instituted in any court seriously from inception as the costs associated with “unscrambling an egg” once an order is made, is always a lot more complex and also unnecessarily costly.

Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team of lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit www.lawtonsafrica.com

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