Labour law in South African sport: a season of expectations?

• Author: le Roux, Rochelle

1. Introduction: the constitutional context

   The dawn of a new Constitutional era (1) in South Africa during the 1990s did not only pave the way for the introduction of an advanced democracy, but also guaranteed the entrenchment of fundamental human rights. (2) The Constitution does not only concern itself with the exercise of public power, but in certain circumstances, where a particular fundamental right is capable of application to private relationships, the Constitution also applies to such relationships. (3) However, once a court is satisfied that a fundamental right applies to a private person, that person normally cannot rely directly on the Constitution for protection. If there is legislation giving effect to the fundamental right, that legislation must be applied; if there is no such legislation, the court must consider whether the common law gives effect to the right. (4) If so, the common law must be applied. In the absence of a common law rule giving effect to the right, the court must develop the common law to give effect to that right. A private person, claiming that one of his or her fundamental rights has been infringed, can thus typically only rely directly on the Constitution for protection if it is claimed that the legislation intended to give effect to that fundamental right in question, is itself contrary to the Constitution. (5) Section 23 of the Constitution deals with labour rights and guarantees the right to fair labour practices, the right join a trade union and the right to engage in collective bargaining, in addition to other rights. The principal legislation giving effect to these labour rights is the Labour Relations Act 1995 (LRA) that came into operation on 11 November 1996. (6) The distinguishing features of this legislation include the emphasis on the concept of unfairness, the introduction of a specialised labour dispute resolution structure and the high premise that is placed on collective bargaining. This article provides a general overview of unfair dismissals in South Africa and more particularly considers the application of one of the more complicated elements (section 186(1)(b)) of the definition of dismissal to sportspersons. In the latter regard particular emphasis will be placed on a recent arbitration award (SARPA obo Bands and Others/SA Rugby (Pty) Ltd) (7) concerning the alleged unfair dismissal of three international rugby players.

2. The South African labour dispute resolution structure

   The LRA established new structures for the resolution of disputes in the workplace. These include the Commission for Conciliation, Mediation and Arbitration (CCMA), the Labour Court and the Labour Appeal Court. (8) Generally, all disputes are referred to the CCMA for conciliation. Depending on the nature of the dispute, an unsuccessful conciliation will either be followed by arbitration, also conducted by the CCMA, or adjudication by the Labour Court. In certain limited instances, an arbitration award can be taken on review to the Labour Court. (9) Labour Court judgments may be taken on appeal to the Labour Appeal Court. (10) The LRA also provides for the establishment bargaining councils in respect of particular sectors and areas, comprising registered trade unions and employer associations. (11) Parties falling within the jurisdiction of a bargaining council are required to refer disputes to the council for conciliation and arbitration when so permitted by the LRA. (12) Despite providing a statutory structure, the LRA encourages parties to resolve disputes through private resolution structures, where such structures have been agreed to. If a dispute has been referred to the CCMA, despite a privately agreed dispute resolution structure, section 147(6) of the LRA confers discretion on the CCMA commissioner either to proceed with the matter or to refer it for resolution through the private dispute resolution structure. The CCMA was faced with such a situation in Augustine and Ajax Football Club: (13) Augustine, a professional football player, referred a dispute to the CCMA alleging that he had been unfairly dismissed by Ajax Football Club. Noting that in terms of the agreement between the player and the club, the parties agreed to refer any dispute concerning dismissals to private arbitration in accordance with the constitution of the National Soccer League, the commissioner opted to refer the matter for resolution via the private procedure. The commissioner advanced the following reasons:

   There are considerably more arguments in favour of enforcing the private arbitration provisions agreed upon between the parties in this matter, the most important of these being that the dispute will be dealt with by an arbitrator who has specialist skills and knowledge in this field. The applicant enjoys no fewer rights in the private arbitration process than he would have should the matter be dealt with by the CCMA and is unlikely to suffer any prejudice should the matter be referred to private arbitration rather than arbitration under the auspices of the CCMA. (14) In the event of the statutory dispute resolution procedure being followed, the LRA requires that unfair dismissal disputes be referred to the CCMA or bargaining council for conciliation (15) within 30 days of the date of the dismissal.

   If the dispute relates to the misconduct of the employee, the dispute must be resolved through conciliation, failing which, arbitration by the CCMA or bargaining council. (16) The LRA further provides that in the case of an automatically unfair dismissal (these include disputes where the reason for the dismissal relates, amongst other things to unfair discrimination) the employee may refer the dispute to the Labour Court for adjudication if it remains unresolved after conciliation. (17)

   The remedies for unfair dismissal are reinstatement, re-employment or the payment of compensation. (18) Reinstatement or re-employment is the primary remedy but will not be ordered where the employee does not wish to be reinstated or re-employed; a continued employment relationship would be intolerable (for example, where the dismissal is related to sexual harassment); it is not reasonably practicable or where the dismissal is only procedurally unfair. (19) In such circumstances compensation will be ordered and it is in this regard that the significance of the distinction between an automatically unfair dismissal and other unfair dismissals becomes clear. Section 194(3) of the LRA provides...