Nkuna v Eskom Rotek Industries SOC Ltd

Ms Amukelani Mildah Nkuna was previously employed by Eskom and Transnet. In December 2022 she accepted an offer of employment from Eskom Rotek Industries SOC Ltd (Rotek), a state-owned company, as a senior manager. Rotek initially sought to withdraw the offer based on allegations that she had resigned from Eskom to avoid a disciplinary hearing into procurement irregularities, but after her representations it retracted the withdrawal. She reported for duty but was placed on precautionary suspension on 30 January 2023. A disciplinary hearing on 26 October 2023 found her guilty and recommended dismissal. She appealed in terms of Rotek's Disciplinary Code. On 8 January 2024 the appeal chairperson set aside the finding of guilt and the dismissal sanction, ruling that she had never been dismissed. On 9 January 2024 Rotek notified Ms Nkuna that it regarded the appeal outcome as reviewable and that it would 'review or amend' it and retain the summary dismissal. On 18 January 2024 Rotek confirmed it had elected to retain the dismissal. Ms Nkuna then launched motion proceedings in the High Court, pleading her case in contract. She sought a declarator that her employment contract remained extant, an order for payment of contractual remuneration, and an order allowing her to resume her duties. Rotek opposed the application, contending that the High Court lacked jurisdiction because the dispute concerned dismissal and fell within the exclusive jurisdiction of the Labour Court; that there were material disputes of fact; and that its 18 January 2024 notification constituted a lawful 'second dismissal'.

• Whether the High Court has jurisdiction to enforce an employment contract by ordering specific performance, or whether the Labour Court has exclusive jurisdiction over a dismissal dispute.
• Whether the decision of an internal appeal chairperson made in terms of an employer's Disciplinary Code described as 'final' is contractually binding on the employer.
• Whether an employer retains an implied contractual power unilaterally to reconsider, review or override the outcome of its own internal disciplinary appeal process.
• Whether an employer's notification retaining a dismissal sanction after it has been set aside on appeal constitutes a valid second dismissal or an anticipatory breach (repudiation) of the employment contract.
• Whether the court should exercise its discretion to grant specific performance of an employment contract and whether the employee's claim for past and future remuneration sounds in damages or in specific performance of a liquidated obligation.

The court declared that the employment contract concluded on 5 December 2022 between Ms Nkuna and Rotek remains extant. It ordered Rotek to pay Ms Nkuna remuneration from 15 November 2023 to the date of judgment at R1 882 419.00 per annum minus statutory and contractually-specified deductions; to pay her future remuneration as and when it falls due for as long as she remains employed; to allow her to resume her duties; to pay interest at the prescribed rate a tempore morae; and to pay the costs of the application including counsel's costs on Scale B.

The High Court retains jurisdiction over purely contractual claims arising from employment relationships; the Labour Relations Act does not extinguish common-law contractual causes of action, and jurisdiction is determined by the cause of action as pleaded. Where an employment contract incorporates a disciplinary code providing that the decision of an internal appeal chairperson is 'final', that decision is contractually binding on the employer, and the employer has no implied power unilaterally to reconsider, amend or disregard it. An employer's purported retention of a dismissal sanction after it has been set aside by a final internal appeal constitutes an anticipatory breach and repudiation of the employment contract, not a lawful termination. A court may order specific performance of an employment contract as a matter of judicial discretion, and will do so where the employer has engaged in unconscionable self-help and has failed to adduce evidence that the trust relationship has irretrievably broken down. A claim by an employee for contractual remuneration as part of an order for specific performance is a claim for a liquidated debt, not damages, and does not require proof of mitigation of loss.

The court observed that the only option for an employer dissatisfied with an internal appeal decision is to seek a review of that decision, but expressly left open the question of whether a review in fact lies against the appeal chairperson's decision because it was unnecessary to decide. The court also noted, in discussing the framework for specific performance, that although it may in certain circumstances be inadvisable to order specific performance in an employment relationship where the trust relationship has irretrievably broken down, the matter remains one of judicial discretion to be exercised upon the evidence.

The judgment confirms that employees retain a common-law right to enforce employment contracts in the High Court and may elect between statutory unfair-dismissal remedies and contractual relief such as specific performance. It establishes that where an employer's disciplinary code states that an internal appeal decision is 'final', that decision is contractually binding on the employer, who may not resort to self-help to override it. The case reinforces that employers must use formal review mechanisms rather than unilateral reconsideration, and illustrates that specific performance remains available in employment disputes unless the employer demonstrates that the trust relationship has irretrievably broken down.