Can Employees Interdict Their Intended Dismissals – A Question of Alternatives?

labour-guideBy Nicholas Preston, Senior Associate, Employment, Cliffe Dekker Hofmeyr

The Labour Court recently revisited this issue in its judgment handed down on 6 June 2014, in Mmatli & 19 Others v Department of Infrastructure Development (Gauteng Province), J1238/14.

The applicant employees were historically employed on a month to month basis by an entity within the Gauteng Department of Public Transport, Roads and Works. Their fixed term contracts of employment had been renewed a number of times until October 2009 when they were all transferred to the Department of Infrastructure and Development.

A number of the applicant employees continued to work under this fixed term arrangement and refused to apply for permanent positions when they became available. This resulted in the Department issuing the remaining applicant employees with back-dated fixed-term contracts which would expire in September 2012. A dispute over the employees contemplated termination dates subsequently ensued and was referred to the Labour Court.

The Department thereafter embarked on a further project to absorb the applicant employees into permanent positions, but again the applicant employees refused to apply for these positions when they became available.

Eventually and on 12 May 2014, the Department issued letters to the applicant employees stating the following:

“We are pleased to inform you that your contract with the department has been renewed effectively from 01 April 2011 until 30 June 2014;

“You are required to sign and submit the attached contract to the Human Resources Department by no later than 15 May 2014;

“Failure to submit a signed contract by 15 May 2014 will be construed as a rejection of the renewal of your contract. Accordingly, your services will be terminated in line with such rejection.”

The applicant employees refused to sign the letters and accordingly faced termination of their contracts of employment. To avoid their termination, the applicant employees filed an urgent application in the Labour Court seeking to interdict and prevent their dismissals and compelling the Department to act lawfully.

In considering the matter, the Labour Court mentioned that s189 of the Labour Relations Act, No 66 of 1995 (LRA) which deals with operational dismissals was in all probability the relevant section based on the facts. However, the Department had not embarked on such a process.

Accordingly, the Labour Court held that the applicant employees had established a prima facie right not to be unfairly dismissed, even if open to some doubt, and for this reason the first requirement for an interdict had been satisfied.

The issue, however, turned on one of the other requirements for an interdict, namely whether the applicant employees had an alternative remedy available to them.

In deciding this particular requirement, the Labour Court had regard to the decision of Booysen v Minister of Safety and Security & Others (2011) 1 BLLR page 83 (LAC) at page 99, wherein it was held that the Labour Court does indeed have jurisdiction to interdict any unfair conduct including that of disciplinary action, but that such intervention should be exercised in exceptional cases only and should be left to the discretion of the court. The Labour Appeal Court held further that although it will not lay down a legal test per se, one of the factors for consideration will be whether the failure to intervene would lead to grave injustice or whether justice may be attained by other means (ie through an alternative remedy).

With this in mind, the Labour Court in Mmatli held that justice was available to the applicant employees through other means, more particularly the unfair dismissal protections contained in s186 of the LRA, which provides adequate assistance and relief to the applicant employees in the event that they are unfairly dismissed.

On this basis, the Labour Court dismissed the applicant employees’ urgent application.

First and foremost employers should ensure that they act within the ambit of the LRA when taking action against employees and in turn, employees and unions should reconsider the ‘knee-jerk’ reaction of rushing to court on an urgent basis, when there are alternative remedies available to them.

For more information please contact Nicholas Preston, Senior Associate at Cliffe Dekker Hofmeyr at

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