Archer v Public School-Pinelands High School and Others (CA12/18) [2019] ZALAC 70 (25 November 2019)
Where an employee has two claims which do not have the same cause of action, s/he is at liberty to pursue the claims in separate forums.
Facts:
This case illustrates that it is possible to have two causes of action arising out of what seem to be the same facts. The employee referred an unfair dismissal dispute to the CCMA in which he claimed that his dismissal by Pinelands High School was procedurally and substantively unfair and that he should be reinstated or compensated.
At arbitration, the School contended that the employee had failed to join the School Governing Body in the proceedings, and the arbitrator directed that the Governing Body be joined as a respondent in the arbitration. Nevertheless, at the conclusion of the hearing the arbitrator found that the employee's dismissal was both procedurally and substantively fair.
The employee did not institute review proceedings against the arbitrator's award. Instead he instituted civil proceedings in the Labour Court against the School and the Governing Body. He claimed that the School was his employer and that he was removed from his employment by the Governing Body, which was unlawful and unauthorised. He claimed that the School's failure to reinstate him and/or to remedy the Governing Body's unlawful actions constituted an unlawful breach of his contract of employment.
The Labour Court dismissed the employee's claim due to a lack of jurisdiction. It held that, after pursuing a case in the CCMA based on an alleged unfair dismissal, he could not now approach the Labour Court on the basis of an unlawful breach of contract.
On appeal, the Labour Appeal Court overturned the LC's decision. The LAC held that the employee had both an unfair dismissal claim and a contractual claim arising from the termination of his employment contract. This entitled him to pursue a claim in the CCMA and an independent contractual claim in either the High Court or the Labour Court, which have concurrent jurisdiction to determine a contractual claim in terms of section 77 of the BCEA.
Despite the adverse finding in the CCMA, the LAC held the employee was entitled to pursue his contractual claim in the Labour Court as it had a different cause of action from his unfair dismissal claim under the LRA. Because of this, it was immaterial that the CCMA dismissed the employee's unfair dismissal claim or that the award was not taken on review to the Labour Court.
The employee was not precluded from pursuing his two claims in different forums by the principle of res judicata (which means that a matter that has been adjudicated by a competent court / body may not be pursued further by the same parties). This is because the claim that was before the Labour Court and the one that was pursued in the CCMA were not the same claims. The one was for payment of damages arising from an alleged breach of contract, and the other was for compensation arising from an unfair dismissal under the LRA. They do not have the same cause of action.
Having found that the LC did have jurisdiction to hear the matter, the LAC ordered that it be referred back to the LC to deal with the merits of the alleged breach of contract claim.
Extract from the judgment:
Kathree-Setiloane AJA:
[10] The question for determination on appeal is whether the Labour Court was correct in finding that it lacked jurisdiction to determine the contractual dispute before it.
[11] The appellant contends that the Labour Court erred in concluding that it lacked jurisdiction to determine his contractual claim as jurisdiction is to be determined from the pleadings, and his pleaded case was clearly based on breach of his contract of employment which, in terms of section 77 of the Basic Conditions of Employment Act, ("BCEA") the Labour Court has jurisdiction over.
[12] To the contrary, the first and second respondents submit that the Labour Court was correct in dismissing the appellant's claim for want of jurisdiction as it constituted forum shopping which must be prevented. They argue that the true nature of the appellant's claim is one of unfair dismissal which he pursued against the first respondent in the CCMA claiming reinstatement, alternatively maximum compensation. And since his claim in the CCMA is essentially the same as that in the Labour Court, the latter is precluded by the principle of res judicata. In addition, they contend that having made an election to pursue his unfair dismissal claim in the CCMA, the appellant is bound by that election and cannot approach a civil court or the Labour Court based on an allegation that his purported termination was unlawful. Lastly, they argue that the Labour Court was correct on the principle established in Gcaba that once a litigant has chosen a particular cause of action and system of remedies provided for by the LRA, it is impermissible to abandon that cause when a negative decision or event is encountered. They accordingly ask that the appeal be upheld.
[13] The question for determination is not a novel one. In 2009, the Supreme Court of Appeal ("SCA") dealt with a similar question in Makhanya v University of Zululand...
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[15] The SCA held in Makhanya that a dismissed employee has various alternative remedies. An employee may lodge a claim to enforce or claim a breach of an employment contract and, in addition, lodge a claim under the LRA for unfair dismissal. In other words, an employee has both a common law contractual right to challenge a dismissal in the Labour Court as well as an independent right under the LRA...
[16] On application of these principles to the decision on appeal, the appellant has both an unfair dismissal claim and a contractual claim arising from the termination of his employment contract. This entitled him to pursue a claim in the CCMA and an independent contractual claim in either the High Court or the Labour Court which have concurrent jurisdiction to determine a contractual claim in terms of section 77 of the BCEA which provides that the "Labour Court has concurrent jurisdiction with the civil courts to hear and determine any matter concerning a contract of employment, irrespective of whether any basic condition of employment constitutes a term of that contract." The appellant elected to pursue his contractual claim in the Labour Court...
[17] Despite the adverse finding in the CCMA, the appellant was entitled to pursue his contractual claim in the Labour Court as it has a different cause of action from his unfair dismissal claim under the LRA. By virtue of this, it is immaterial that the CCMA dismissed the appellant's unfair dismissal claim, and that that decision was not taken on review to the Labour Court. Even if it was, the appellant would have still been entitled to pursue his contractual claim in the Labour Court, because it was a completely different claim from the one that was dismissed in the CCMA.
[18] The upshot of this is that the appellant was not precluded by the principle of res judicata from pursuing his two claims in different fora. This is because the claim that was before the Labour Court, and the one that was pursued in the CCMA were not the same claims. The one is for payment of damages arising from a purported breach of contract by the first and second respondents, and the other is for compensation arising from an unfair dismissal as envisaged under the LRA. The two claims do not have the same cause of action. The pleadings bear this out.
[19] It follows from this that the Labour Court erred in concluding that it lacked jurisdiction to determine the appellant's contractual claim because an employee cannot, after unsuccessfully pursuing a case in the CCMA based on the existence of an alleged unfair dismissal, approach the Labour Court on the basis that the termination of his employment contract did not constitute a dismissal in law..........................
[25] To sum up, the appellant's pursuit of his unfair dismissal claim in the CCMA did not extinguish his claim for enforcement of his contractual rights in terms of his contract of employment which the Labour Court has the power to enforce. That the appellant had pursued a separate claim in the CCMA to enforce his LRA right not to be unfairly dismissed, and that that claim had been decided against the appellant, is simply irrelevant - a fortiori because it is a different claim with a different cause of action from the appellant's contractual claim.
[26] For these reasons, the appeal must succeed.
Costs
[27] I consider it to be fair and just not to order costs against the first and second respondents.
Order
[28] In the result, I make the following order:
- The appeal is upheld.
- The order of the Labour Court is set aside.
- The matter is remitted to the Labour Court for determination of the merits.
- There is no order as to costs