Recently, the Labour Appeal Court (LAC) held in Bata SA (Pty) Ltd v SACTWU obo Members [2024] 8 BLLR 866 (LAC) that the CCMA’s powers are limited to making a declaratory order recognising the employment status of current employees. Thereafter, the employee can either pursue an unfair dismissal or unfair labour practice claim under section 191 of the LRA or seek contractual remedies in terms of the Basic Conditions of Employment Act 75 of 1997 (BCEA).

In respect of those who are no longer employees, the LAC held that while a court cannot issue a declarator in respect of employees who are no longer in the client’s employ, the court could pronounce on their status at the time that their employment ended. They would be entitled to relief under the LRA or BCEA.

In addition, the LAC iterated that an employee could pursue an unfair dismissal or unfair labour practice claim and rely on sections 198A – 198C to counter an employer’s claim that there was no dismissal or less favourable treatment compared to other employees doing similar work. This, without necessarily first seeking a declarator under section 198D.

In Bata, the South African Clothing and Textile Workers’ Union (SACTWU) referred a dispute on behalf of its members, current employees and those dismissed, contending that they were deemed employees of Bata and had been treated less favourably than its other employees in respect of wages and employment conditions. SACTWU argued that section 198D empowered the CCMA to quantify the monetary difference in wages and issue an award to this effect. Bata contended that section 198A only empowered the CCMA to grant declaratory relief in relation to whether the temporary employees were deemed employees of the TES’ client and whether there was disparity in treatment. If so, any redress available would be premised on other provisions of the LRA or the BCEA. The declaratory relief is limited to those employed at the time of granting the declarator.

In the CCMA, it was found that that only current employees (at the time of arbitration) could be party to the dispute, and furthermore that its powers were limited to granting declaratory relief. Any incidental claims for backpay had to be pursued separately in the appropriate forum. On review, the Labour Court held that section 198D was an all-encompassing provision. It empowered the CCMA to not only determine whether the TES employees were deemed employees of the client and whether they were treated on the whole less favourably than other employees performing the same or similar work, but to go further and quantify the monetary value of the difference and backpay. The Labour Court reviewed and set aside the arbitration award and directed the re-hearing of the matter in the CCMA.

The LAC finally gave clarity on the conflicting judgments by the Labour Court in Bata and Nama Khoi Local Municipality v SA Local Government Bargaining Council and others [2019] 8 BLLR 830 (LC). Section 198D serves as a procedural tool to clarify the status of employees through a declarator in respect of current employees. Additionally, it may pronounce on the status of those who had already been dismissed at the time of the dispute, determining whether they were treated less favourably than other employees of the TES’ client. This enables such employees to pursue appropriate claims under section 191 of the LRA or the BCEA.