Kerry Edward Archer v The Public School – Pinelands & The School Governing Body of Pinelands High School & The Western Cape Education Department (C362/17) [2018] ZALCCT 10; [2018] 8 BLLR 785 (LC); 39 ILJ 1998 (LC) (20 April 2018)

/ / 2019, Labour Law, News


Kerry Archer (the “Applicant”) was dismissed from his position as Business Manager of Pinelands High School (the “First Respondent”). The Applicant initially approached the CCMA on the basis that he had been unfairly and unlawfully dismissed from his employment. The Parties before the CCMA were the Applicant, the First Respondent and the Governing Body of Pinelands High School (“Second Respondent”).  The CCMA had jurisdiction to hear his dispute insofar as the issues pertained to unfairness of the dismissal. The Applicant submitted that his removal constituted an unlawful breach of his contract of employment. As such, the Applicant sought reinstatement of his contract of employment, or for damages to be paid by the First and Second Respondents jointly and severally in the alternative.  The Applicant never took the ruling or award on review, and was thus binding on the Parties


The Labour Court in reaching its decision relied on the case of James & Another v Eskom Holdings SOC Ltd & Others[1] wherein two appellants, employees of Eskom, referred an unfair dismissal dispute to the CCMA where the Commissioner found that their dismissal was substantively fair
The Appellants contended that there had been no valid dismissal and that that the Commissioner lacked the necessary jurisdiction required in order to arbitrate the dispute. The Labour Court in the case referred to above, rejected the Appellants’ submissions and upheld the arbitration award. As a result thereof, the Appellants appealed to the Labour Appeal Court (“LAC”), wherein the LAC cited section 186 of the Labour Relations Act[2] (“LRA”)in order to define a “dismissal”. As per the Act, a dismissal is an instance where an employer has terminated a contract of employment with or without notice.
The general meaning of the word “termination” is to ‘bring to an end’. As such, the Appellants were in the circumstances, entitled to approach the CCMA to challenge the fairness of the conduct of the respondent, which they did. In light of this, it was not for them to ignore their arbitrated referred dispute, and claim that they had not been dismissed. Nothing prevented the Appellants from approaching the CCMA for relief, it all hinged on how they pleaded their case to the CCMA. The termination of Appellants’ employment was a factual situation in which they themselves found to constitute a dismissal that was unfair
The Court ultimately held that the Applicant could not, after unsuccesfully pursuing a case in the CCMA on the basis of 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. The Labour Court thus concluded that it does not have jurisdiction to hear this matter based on the authority as referred to above.

The Court went on to further state that if employees were able to pursue a new cause of action, as the Applicant sought to do, the structure of our employment law would be breached. Furthermore, the guiding principle of speedy resolution of disputes, as envisaged by the Concilliation and Mediation processes, would become redundant and essentially undermined. The Applicant’s claim was ensuingly dismissed for want of jurisidiction.


Once a litigant has chosen a particular cause of action and system of remedies, for instance the ones contained within the LRA, she/he cannot be allowed to abandon that cause as soon as a negative decision or event is encountered.

Written by Divina Naidoo and supervised by Dingumuzi Ndhlovu, 18 March 2019

[1] (2017) 38 ILJ 2269 (LAC)

[2] 66 of 1995

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