De Klerk v Cape Union Mart International (Pty) Ltd (C 620/2011) [2012] ZALCCT 22; (2012) 33 ILJ 2887 (LC) (12 June 2012)

De Klerk v Cape Union Mart International (Pty) Ltd (C 620/2011) [2012] ZALCCT 22; (2012) 33 ILJ 2887 (LC) (12 June 2012)

The court held that the applicant cannot rely directly on section 23 of the Constitution for her claim, as the Labour Relations Act is the legislation enacted to give effect to that right and no constitutional challenge was made. The first exception, relating to direct constitutional reliance, was upheld. Regarding section 187(1)(d), the court found the reasoning in Mackay v ABSA persuasive, holding that a purposive interpretation of the LRA may allow an employee dismissed for lodging a grievance under internal procedures to pursue a claim for automatically unfair dismissal. The second exception was dismissed. The applicant's reliance on section 5(1) of the LRA was found to be vague and...

Citation
[2012] ZALCCT 22
Parties
Applicant: Barbara De Klerk; Respondent: Cape Union Mart International (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
12 June 2012
Case Number
C 620/2011
Procedural Posture
Exception Application / Preliminary Exception to Statement of Claim
Outcome
The first and third exceptions are upheld; the second exception is dismissed. No order as to costs.
Judges
Steenkamp
Legal Topics
Automatically Unfair Dismissal, Section 187 1 D, Constitutional Subsidiarity, Exception Procedure, Statement of Claim Requirements
Labour Law Civil Procedure Automatically Unfair Dismissal Section 187 1 D Constitutional Subsidiarity Exception Procedure Statement of Claim Requirements

Case Brief

Summary, issues, holding and outcome

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Parties

Barbara De Klerk

Applicant

Cape Union Mart International (Pty) Ltd

Respondent

Procedural Posture

Exception Application / Preliminary Exception to Statement of Claim

Legal Issues

  1. 1 Whether the applicant can rely directly on section 23 of the Constitution for her claim of automatically unfair dismissal.
  2. 2 Whether lodging a grievance under an employer's internal policy constitutes exercising a right conferred by the Labour Relations Act for the purposes of section 187(1)(d).
  3. 3 Whether the applicant has pleaded sufficient grounds for discrimination under section 5(1) of the Labour Relations Act.

Ratio Decidendi

The court held that the applicant cannot rely directly on section 23 of the Constitution for her claim, as the Labour Relations Act is the legislation enacted to give effect to that right and no constitutional challenge was made. The first exception, relating to direct constitutional reliance, was upheld. Regarding section 187(1)(d), the court found the reasoning in Mackay v ABSA persuasive, holding that a purposive interpretation of the LRA may allow an employee dismissed for lodging a grievance under internal procedures to pursue a claim for automatically unfair dismissal. The second exception was dismissed. The applicant's reliance on section 5(1) of the LRA was found to be vague and...

Court Disposition

The first and third exceptions are upheld; the second exception is dismissed. No order as to costs.

Orders

  • The first and third exceptions are upheld.
  • The second exception is dismissed.