Second try is OK but res judicata still applies

Mpumelelo Nxumalo & Kalene Watson Webber Wentzel

In a recentjudgment, the Labour Courthas confirmed that instituting a claim for unlawful terminationmay follow anunsuccessful claim for unfair dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA).

However, theprinciple of res judicatastill applies where litigantsformulate such a claimon the grounds of fairness.

In 2017,Motlaung was dismissed fromhis position at the health department for misconduct related to offencesofdishonesty,which included stealingdiesel and the unauthorised useof a state vehicle.Following his dismissal, Motlaungreferred an unfair dismissaldispute to thePublic HealthandSocial Development Sectoral Bargaining Council(PHSDSBC) and, after hearingthe matter, the arbitratorfound thathis dismissal was fair.

In 2021,Motlaung became aware of the Labour Appeal Court (LAC)judgment in Archer vPinelands High School (theArcher matter) and decided topursue an unlawful dismissal dispute (asopposed toan unfairdismissal) in the Labour Court.

In summary,after Archer was dismissed from his position as businessmanager, he referred anunfair dismissal disputeto theCCMA.The CCMA foundthat Archer’s dismissal wasboth procedurally andsubstantively fair. Instead ofinstituting review proceedings inthe Labour Court againstthe arbitrator's award, Archerinstituted civil proceedings inthe Labour Court interms ofsection 77(3) of theBasic Conditions of EmploymentAct (BCEA), claiming specific performance. Archerclaimed that his removal bythe school governing bodyconstituted a breach of contract, as it did nothave theauthority todo so. The LabourCourt dismissed theapplication and, onappeal,the LAChadto consider whether an employee is entitled to refer a breach ofcontract disputeto the Labour Court after an applicant isunsuccessful in pursuing aclaim forunfair dismissal at the CCMA.

The LAC held that despite theadverse findinginthe CCMA,Archerwasentitledto pursue hiscontractual claim intheLabourCourt,asithasa different cause of action from his unfairdismissal claim under theLabour Relations Act (LRA).

When institutinghis claim intheLabourCourt,Motlaung setout thefactson whichhis claimwas foundedin amanner that was essentially the sameas thecase hehad placedbeforethearbitratorin his unfairdismissal dispute broughtin thePHSDSBC the misconductwith which he had been charged was not proven. TheLabour Court held it mustbeclear fromthe pleaded cause ofaction that thereisaproperseparationof claims based onthe fairness standardsunder theLRA and claims basedpurely on contract.

Motlaung firstdid not plead any relianceon section 77(3)ofthe BCEA;second,he didnotrefer toanyprovision of his contractof employment and what terms were breached;and third,thefactualbasisofhispleadedclaim didnot makeouta casefor breach of contract. Instead, it was akin to acase based on fair dealingas contemplated by the LRA. Litigantswhoconsiderthe options availableto them when pursuinglabour disputes should bemindful that where theessence ofthe disputeremains thesame,the cause isthe same,what is ultimately demandedas consequentialrelief isthesame, andthe cruxofthe disputeis basedonthe samefacts,then it is acase squarely impacted bytheprincipleofresjudicata (a matter already judged cannot bepursued bythe same parties).

Labelling a disputeas an unlawful dismissalrather than anunfair dismissal would changenothing and that is not what was envisaged in the Archer matter.