n SA Mercantile Law Journal = SA Tydskrif vir Handelsreg - Proving damages under the common law in labour cases : a discussion of (2013) 34 311 (LAC) : case note

Volume 27, Issue 2
  • ISSN : 1015-0099
  • E-ISSN: 1996-2185



The decision in (2013) 34 311 (LAC) ( LAC) concerned the premature termination of the respondent employee's fixed three year contract of employment. The employee did not seek to enforce his right not to be unfairly dismissed via the channel of the Labour Relations Act 66 of 1995 (LRA). Instead he instituted action for the unlawful termination of his employment contract under the common law and s 77(3) of the Basic Conditions of Employment Act 75 of 1997 (BCEA).

The Labour Appeal Court (LAC) examined the interface between statutory law and common law labour rights and ultimately found in the employee's favour, awarding him damages for breach of contract. In ascertaining the quantum of damages, the LAC deviated from previous decisions in which the courts had often awarded damages in the full amount that the employee would have earned had his/her contract run to completion. In this case, the LAC took the view that the appropriate damages that should be awarded to an employee for breach of the employment contract should be limited to damages actually proved by the employee. This note will consider these aspects.

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