Can an employee have two claims on the same set of facts?

The Labour Appeal Court in Gauteng Shared Services Centre v Ditsamai (JA 44/09 of 7 December 2011) found that it would be acceptable for an employee to lodge a claim for unfair dismissal based on discrimination in the Labour Court and lodge a claim for compensation in terms of the Employment Equity Act (EEA) on the same facts.
In this case the employer had advertised several posts including a post for Forensic Auditor, which the employee was interviewed for. The employee did not successful secure a permanent post and signed a contract for the Temporary Junior Forensic Auditor post for a limited period. The employee was dismissed by the employer following the employee lodging a grievance of victimisation, bias and unfair treatment after two fellow employees secured permanent employment.
The employee referred a claim of unfair dismissal to the General Public Service Sector Bargaining Council (“the bargaining council”), where he was awarded compensation for unfair dismissal in terms of section 186 of the LRA but the arbitrator held that reinstatement was not a competent remedy. The Respondent then referred another dispute to the CCMA for unfair discrimination in terms of section 10(1) of the EEA based on the appointment of the two fellow employees in permanent positions whilst he could only secure a temporary junior position.
The employer argued the principle of res judicata in that the same set of facts was relied on for both claims. This argument was dismissed in both the court a quo and the Labour Appeal Court where Judge Davis relied on Sorghum Breweries Sorghum Breweries v International Liquor Distributors 2001 SA 232 (SCA) where Judge Olivier described the requirements for successful reliance on res judicata as “demanding the same thing on the same grounds” or “on the same cause for the same relief”.
The employer failed to discharge this onus of proof and as a result the appeal was dismissed.
Cases like the above have created an untenable position whereby the effective resolution of matters in terms of the LRA is undermined and secondly, it poses a threat to employers who will remain fearful that they may be required to defend an issue on the same set of facts again after having resolved the issue on another forum. It is unfortunate that the Constitutional Court has not pronounced on the matter as yet. Academic writers Grant and Whitear-Nel¹ suggest intervention by the legislature to clear up the confusion in this area of law.
¹Grant, B and Whitear-Nel, N “Can An Employee Claim Damages As A Result Of Breach Of An Implied Contractual Term That He Will Not Be Unfairly Dismissed? South African Maritime Authority V McKenzie” 130.2 2013 SALJ 309

Contact Charles Kinnear on 072 3138344 or

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