An individual employee may not rely on section 187(1)(c) of the LRA

​Section 187(1)(c) of the Labour Relations Act 66 of 1995 (LRA) provides that it will be automatically unfair to dismiss a group of employees if they refuse to accept a demand in respect of any matter of mutual interest between such employees and the employer.

The wording of section 187(1)(c) of the LRA was amended in 2014 to better reflect its ultimate purpose, ie the protection of the collective bargaining process. Section 187(1)(c) refers to “employees” and “them and their employer” and does not, at any point, refer to a single “employee”.

Despite the specific wording of section 187(1)(c), an individual employee employed as a doctor in a private practice in Johannesburg claimed that his dismissal should be considered as automatically unfair as his employer dismissed him after he refused to sign a restraint of trade agreement. This claim was considered by the Cape Town Labour Court which handed down its judgment* in December 2019. The judgment confirms that an individual employee is not entitled to rely on section 187(1)(c) of the LRA.

Facts

In 2013, Dr Hofmeyr accepted an offer from Dr Saaiman of permanent employment as a cardiologist. Dr Hofmeyr sought to gain experience in the medical discipline of cardiology. There seemed to be a common understanding between the doctors that Dr Hofmeyr would eventually take over the running of Dr Saaiman’s practice as Dr Saaiman was close to retirement.

However, over time, it became clear that Dr Saaiman had no intention of retiring any time soon. Dr Hofmeyr then started making inquiries for positions at other medical institutions. Once Dr Saaiman heard about this, he requested that Dr Hofmeyr sign a restraint of trade agreement. Dr Hofmeyr refused to sign the agreement and he was dismissed.

Dr Saaiman lodged a statement of claim at the Labour Court alleging that his dismissal was automatically unfair by relying on section 187(1)(c) of the LRA.

Interpretation of section 187(1)(c)

Post the 2014 LRA amendments, section 187(1)(c) now refers to “employees” as opposed to “employee”. In view of this, the Labour Court confirmed that an individual cannot rely on section 187(1)(c). This section is designed to ensure that collective bargaining (and the associated right to strike) is not undermined. The underlying right is collective (and not individual) in nature.

The Labour Court held that the section is intended to apply within the sphere of collective bargaining only. It therefore does not apply to individual employees. In reaching its conclusion, the Labour Court also confirmed an earlier judgment** of the Johannesburg Labour Court which also held that section 187(1)(c) may not be relied upon by an individual employee.

While the court found that Dr Hofmeyr’s dismissal was not automatically unfair, it did find that Dr Hofmeyr’s dismissal was procedurally and substantively unfair.

* Hofmeyr v Saaiman t/a SA Endovascular (C599/2017) [2019] ZALCCT 39 (3 December 2019)
** Jacobson v VITALAB (JS1042/19) [2019] ZALCJHB 157; (2019) 40 ILJ 2363 (LC) (28 May 2019)

Dhevarsha Ramjettan is a Partner, Nivaani Moodley is a Senior Associate, Shane Johnson is a Professional Support Lawyer at Webber Wentzel.

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