If you are an employee in South Africa, you may have heard of the Basic Conditions of Employment Act 75 of 1997 (BCEA), which is a law that regulates the minimum standards of employment, such as working hours, leave, remuneration, termination and more. But did you know that the BCEA also gives you the right to approach the Labour Court directly to enforce your rights under the Act? This is what Section 77 of the BCEA is all about.
Jurisdiction of the Labour Court
Section 77 of the BCEA deals with the jurisdiction of the Labour Court, which is a specialised court that deals with labour disputes and matters. According to Section 77(1), the Labour Court has exclusive jurisdiction over all matters arising out of the BCEA, except for some offences that are dealt with by other courts or authorities. This means that if you have a dispute or a claim related to any provision of the BCEA, you can take it to the Labour Court for resolution.
However, Section 77(3) of the BCEA also provides that the Labour Court has concurrent jurisdiction with the civil courts (such as the Magistrate’s Court or the High Court) in matters concerning a contract of employment. This means that you can choose whether to take your dispute or claim to the Labour Court or a civil court, depending on which one is more convenient or suitable for your case.
Importance to you
Why is this important? Well, because a contract of employment is not only a legal document that sets out the terms and conditions of your employment relationship with your employer, but it also incorporates any basic condition of employment in the BCEA by default. This means that any right or obligation that you have under the BCEA automatically becomes part of your contract of employment unless it is replaced, varied or excluded by another law, a collective agreement or a more favourable term in your contract.
For example, if your contract of employment does not specify how much annual leave you are entitled to, then you can rely on Section 20 of the BCEA, which states that you are entitled to at least 21 consecutive days of annual leave for every year of employment. This becomes a term of your contract of employment under Section 4 of the BCEA. Therefore, if your employer refuses to grant you your annual leave or pays you less than your normal wage for it, you can take them to either the Labour Court or a civil court to enforce your right under Section 20 of the BCEA and your contract of employment.
The same applies to any other basic condition of employment in the BCEA, such as overtime pay, sick leave, maternity leave, notice period, severance pay and more. You can use Section 77(3) of the BCEA to protect your contractual rights and seek remedies from either the Labour Court or a civil court if your employer breaches any provision of the BCEA or your contract of employment.
An example of protection of contractual rights
In the recent Labour Court case of Makgoka v Silverstar Casino (J310/21)  ZALCJHB 135 (21 April 2023) section 77 of the BCEA was considered and relied upon by the Labour Court to find that the Labour Court had the required jurisdiction to adjudicate the employee’s claim.
The case centres around a labour dispute between an employee (KJ Makgoka) and an employer (Silverstar Casino). The employee alleged that the employer breached his contract of employment by changing his employment status from full-time permanent to full-time flexible, which affected his remuneration and benefits.
The employee referred the dispute to the Labour Court, claiming that the employer committed a unilateral change to terms and conditions of employment in terms of section 64(4) of the Labour Relations Act (“LRA”), a breach of section 24(1) of the (LRA), and an unfair labour practice in terms of section 186(2)(a) of the LRA. Before referring the dispute to the Labour Court, the employee referred a section 64 or unilateral change dispute to the Commission for Conciliation, Mediation and Arbitration (“CCMA”) for conciliation. The employee later withdrew the CCMA referral.
In the Labour Court proceedings, the employer raised two points in limine, challenging the jurisdiction of the Labour Court to hear the dispute. The employer alleged that:
- the referral was premature or that the Labour Court lacked jurisdiction to adjudicate the section 64(4) dispute; and
- the Labour Court lacked jurisdiction to adjudicate the section 186 dispute.
At the commencement of the proceedings in the Labour Court, the employee withdrew the claims based on section 24(1) and the unfair labour practice in terms of section 186(2)(a), leaving only the unilateral change claim in terms of section 64(4).
Ultimately the Labour Court dismissed the employer’s points in limine, finding that the Labour Court had jurisdiction to hear the contractual claim based on section 77 of the BCEA, and directed the Registrar to enrol the matter for trial.
In its reasoning, the Labour Court submitted the following:
- In his statement of claim, the employee alleged that the employer unilaterally changed the terms of his contract of employment with effect from 1 October 2020. Further, the employee alleged that the employer was in breach of the contract of employment and that the employee sought the restoration of the status quo.
- In his argument to the Labour Court, the employee argued that the unilateral change dispute is brought in terms of section 77 of the Basic Conditions of Employment Act (“BCEA”).
- In the employer’s argument to the Labour Court regarding section 77 of the BCEA, the employer submitted that the matter must be decided based on the pleadings before the Court and that, because there is no reference to section 77 of the BCEA in the employee’s referral, the Labour Court has no jurisdiction to entertain the claim.
- In Abrahams v Drake & Scull Facilities Management (SA) (Pty) Ltd and Another (2012) 33 ILJ 1093 (LC) the Labour Court found that a single employee faced with a unilateral change to terms of employment cannot resort to the right to strike, and thus he cannot refer a dispute in terms of section 64(4) of the LRA.
- Whilst it is a trite legal principle that each case should be determined based on the pleadings, the employer’s argument that the claim is not based on section 77 of the BCEA is not sustainable.
- The fact that there was no specific reference to section 77 of the BCEA did not deprive the Labour Court of jurisdiction to adjudicate the employee’s claim. The Labour Court has the jurisdiction to hear contractual claims and is empowered to make orders of specific performance.
In conclusion, this case illustrates the importance of understanding the different types of disputes that can arise from employment contracts and the appropriate forums to resolve them. The employee was able to overcome the employer’s technical objections and secure his right to have his claim heard by the Labour Court based on Section 77 of the BCEA. The outcome of the trial will depend on whether the employee can prove that the employer indeed changed his employment status and 13th cheque entitlement without his consent and in breach of his contract. This case also shows that employees should be careful when signing new contracts or accepting new terms and conditions, as they may affect their existing rights and benefits. Employees who are unsure about their contractual rights should seek legal advice before agreeing to any changes.
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