Steenkamp and Others v Edcon Limited

Edcon, a major employer with approximately 40,000 employees, undertook large-scale retrenchments for operational requirements between April 2013 and mid-2014, dismissing about 3,000 employees. Section 189A of the Labour Relations Act (LRA) applied, which provides special procedures for large-scale retrenchments. Edcon issued section 189(3) notices inviting consultation but then issued termination notices to employees before the statutory time periods in section 189A(8) had elapsed. No facilitator was appointed. The time between section 189(3) notices and termination notices varied from 6 days to over 60 days. The individual applicants (employee applicants) did not use LRA dispute resolution mechanisms (conciliation, arbitration, Labour Court referral for unfairness, or strike action). Instead, they approached the Labour Court seeking orders declaring their dismissals invalid and of no force and effect, and seeking reinstatement. They did not challenge the substantive or procedural fairness of the dismissals, nor did they tender to return severance packages. Their sole complaint was Edcon's non-compliance with section 189A(8) time periods.

• Does non-compliance with the time periods prescribed in section 189A(8) of the LRA render dismissal notices and resultant dismissals invalid and of no force and effect?
• Does section 189A create a 'dismissal-free zone' during statutory time periods such that dismissals effected during this period are null and void?
• Are remedies for breach of section 189A(8) limited to those provided within the LRA (section 189A(9), (13)) or does a common law remedy of invalidity also exist?
• Is reinstatement competent as a remedy for an invalid dismissal as opposed to an unfair dismissal?
• Does the LRA contemplate a category of 'invalid' or 'unlawful' dismissals as distinct from 'unfair' dismissals?

Leave to appeal was granted. The appeal was dismissed. There was no order as to costs.

The binding legal principles established by the majority are: (1) The LRA does not contemplate a category of 'invalid' or 'unlawful' dismissals distinct from 'unfair' dismissals. All dismissals under the LRA are either fair or unfair (including automatically unfair), and remedies are confined to those provided in the LRA. (2) Where a cause of action is based on breach of an LRA obligation, the litigant must seek remedies within the LRA using LRA dispute resolution mechanisms. A litigant cannot invoke common law remedies for LRA breaches ('LRA remedy for LRA breach' principle, applying Chirwa). (3) Non-compliance with the procedural time requirements in section 189A(8) does not render dismissals or dismissal notices invalid and of no force and effect. Such non-compliance may render dismissals procedurally unfair, but not invalid. (4) Whether a breach of a statutory provision results in nullity depends on a purposive interpretation considering: the statute's overall purpose, the purpose of the specific provision, whether the statute provides remedies for breach, the adequacy of those remedies, the mischief the provision addresses, and whether declaring invalidity is necessary to prevent the provision being breached with impunity. The use of 'must' or 'shall' is not determinative. (5) Section 189A provides adequate remedies for procedural breaches: section 189A(9) allows immediate strike action if dismissal notices are given prematurely; section 189A(13) provides for compelling compliance, interdicts, reinstatement until fair procedure is followed, and compensation. These are extensive and sufficient. (6) An order of reinstatement is not a competent remedy for an invalid dismissal. Reinstatement as a remedy presupposes a dismissal that is recognized as having occurred but is unfair. If a dismissal is invalid (a nullity), the employee was never dismissed and remains employed; no reinstatement is needed or possible.

Cameron J's minority judgment (obiter as it did not prevail) observed that: Section 189A is not a mere 'bolt-on' to section 189 but creates a distinctive regime for large-scale retrenchments with substantially different protections. The provision creates a 'dismissal-free zone' or 'dismissal-free period' during which employers are prohibited from dismissing, with the purpose of facilitating meaningful consultation and exploring alternatives to retrenchment. This power shift is fundamental to the provision's purpose. Treating time period violations as merely rendering dismissals procedurally unfair (rather than invalid) would substantially undermine the protection the provision was designed to afford. The language of section 189A(2)(a) ('must give notice... in accordance with the provisions of this section') and the cross-reference to BCEA section 37(1) invoke the contractual law of termination, suggesting peremptory requirements. The common law principle that wrongful termination without notice does not automatically end the employment contract remains relevant under the LRA. The LRA supplements but does not entirely supplant common law contractual rights. Strike action and the remedies in section 189A(13) are not adequate substitutes for invalidity because: they place the burden on employees to act urgently; strikes impose severe risks on the enterprise and non-affected employees; and the remedies in section 189A(13) apply only to 'fair procedure' not to the fundamental breach of the dismissal-free period. The majority judgment contains obiter discussions including: The historical context of previous labour legislation (1956 LRA, 1937 Act) which contained criminal sanctions for victimization and which did contemplate invalid dismissals, contrasted with the current LRA's deliberate move away from this model. The distinction between lawfulness and fairness in South African labour law, which has been recognized since Marievale cases. The rationale for excluding invalid dismissals from the LRA framework: the LRA's fairness-based approach provides flexibility to do justice between employer and employee, whereas common law invalidity is rigid and 'winner takes all'. Whether strike action under section 189A(9) can be invoked solely for procedural unfairness or only for disputes about substantive fairness (the judgment notes uncertainty but suggests the strike route may be available for both). That employees who acted in reliance on earlier court decisions (De Beers, Revan) may arguably seek condonation to pursue LRA remedies, though the employer would be entitled to oppose this.

This landmark Constitutional Court decision clarifies the nature of dismissals under the LRA and the remedies available for procedural non-compliance in large-scale retrenchments. It establishes that: (1) The LRA does not recognize 'invalid' or 'unlawful' dismissals as a separate category—all dismissals are either fair or unfair. (2) Employees whose rights under the LRA are breached must seek LRA remedies through LRA mechanisms; they cannot bypass these by invoking common law remedies. (3) Section 189A provides adequate and extensive remedies for procedural breaches, including immediate strike action and court orders for reinstatement until fair procedures are followed. (4) The use of mandatory language ('must') in a statute does not automatically render non-compliance a nullity—legislative purpose and context must be examined. (5) The concept of reinstatement applies only to unfair dismissals that are recognized as having occurred, not to invalid dismissals. The decision overruled the Labour Appeal Court's earlier approach in De Beers and Revan which had held such dismissals invalid. It provides important guidance on statutory interpretation, the relationship between fairness and lawfulness in labour law, and the boundaries between LRA remedies and common law remedies. The decision emphasizes the LRA's comprehensive dispute resolution framework and discourages forum-shopping or remedy-shopping by employees. It also illustrates the court's purposive approach to interpreting labour legislation in accordance with section 39(2) of the Constitution and section 3 of the LRA.