Kerry Edward Archer v The Public School – Pinelands High School and Others

The appellant, Mr Kerry Archer, was dismissed from his employment at Pinelands High School. He initially referred an unfair dismissal dispute to the CCMA, claiming that his dismissal was procedurally and substantively unfair and seeking reinstatement or compensation. The arbitrator found that while the appellant had been dismissed, the dismissal was both procedurally and substantively fair. The appellant did not institute review proceedings against the CCMA award. Instead, he instituted civil proceedings in the Labour Court on 17 July 2017 against the first and second respondents, claiming that his removal from employment by the second respondent (the School Governing Body) was unlawful because it was not authorized by the first respondent (the school), which he alleged was his actual employer. He claimed damages for breach of contract, arguing that the first respondent's failure to reinstate him or remedy the unlawful actions of the second respondent constituted an unlawful breach of his employment contract.

• Whether the Labour Court has jurisdiction to adjudicate a breach of contract claim after an employee unsuccessfully pursued an unfair dismissal claim in the CCMA
• Whether an employee who has pursued an unfair dismissal claim in the CCMA is precluded by res judicata from pursuing a contractual claim in the Labour Court
• Whether pursuing both an unfair dismissal claim and a contractual claim arising from the same termination of employment constitutes impermissible forum shopping
• Whether the Labour Court has concurrent jurisdiction with the High Court to determine contractual disputes arising from employment contracts

The appeal was upheld. The order of the Labour Court was set aside. The matter was remitted to the Labour Court for determination on the merits. There was no order as to costs.

An employee who has been dismissed has two distinct causes of action: (1) a claim for unfair dismissal under the LRA, and (2) a common law claim for breach of contract. These are separate and independent claims that can be pursued in different forums either simultaneously or sequentially. The Labour Court has concurrent jurisdiction with the High Court to hear and determine contractual disputes arising from employment contracts in terms of section 77 of the BCEA. The pursuit of an unfair dismissal claim in the CCMA does not extinguish or preclude a subsequent contractual claim in the Labour Court, even if the unfair dismissal claim is unsuccessful. The principle of res judicata does not apply where the claims have different causes of action, notwithstanding that they arise from the same factual event (termination of employment). Section 195 of the LRA expressly provides that compensation awarded under the LRA is in addition to, and not a substitute for, any other amount the employee is entitled to under any law, collective agreement or contract of employment, thereby recognizing the continued existence of common law contractual remedies alongside statutory remedies.

The Court observed that cases purporting to raise jurisdictional challenges in employment matters are often not truly about jurisdiction at all, but rather about whether the claimant has a good claim in law. The Court noted that if only the Labour Court could deal with disputes arising out of all employment relations, common law remedies would be wiped out, because the Labour Court (being a creature of statute) does not have the power to deal with all common law or other statutory remedies. The Court remarked that the regularity with which jurisdictional challenges are being raised in employment cases is becoming alarming. The Court also observed that it would be unfair to interpret the LRA in a manner that destroys causes of action or remedies that existed prior to its enactment.

This case clarifies an important principle in South African labour law regarding the relationship between statutory unfair dismissal claims and common law contractual claims arising from termination of employment. It confirms that employees are not required to elect between these remedies and that pursuing one does not extinguish or preclude the other. The judgment reinforces that the LRA has not abolished common law contractual remedies available to employees, and that the Labour Court has concurrent jurisdiction with the High Court to determine contractual disputes under section 77 of the BCEA. The case provides important guidance on the application of res judicata in the employment context and establishes that different causes of action arising from the same factual matrix (termination of employment) can be pursued separately without constituting impermissible forum shopping. It protects employees' ability to pursue multiple remedies for different legal wrongs arising from the same employment termination.