Murray v Minister of Defence

Murray v Minister of Defence is an important case in South African labour law. An appeal from a decision in the Cape Provincial Division by Yekiso J, it was heard in the Supreme Court of Appeal (SCA) on 18 February 2008. Mpati DP, Cameron JA, Mlambo JA, Combrinck JA and Cachalia JA presided, handing down judgment on 31 March. Counsel for the appellant was KPCO von Lieres und Wilkau SC (with RB Engela); NJ Treurnicht SC (with AC Oosthuizen SC) appeared for the respondent. The appellant's attorneys were Van der Spuy Attorneys, Cape Town, and Hill McHardy & Herbst Ing, Bloemfontein. The respondent was represented by the State Attorney, Cape Town, and the State Attorney, Bloemfontein.

The court found that the right to fair labour practices, in section 23(1) of the Constitution, imports into the common-law contract of employment the general term that the employer will not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage its relationship of confidence and trust with its employee. The court thus imposed "a new general and contractual obligation on employers"—a duty of fair dealing with employees. In this the court had broken with the much-criticised common-law rule that "an employer is free to terminate the contract at any stage, for any reason or indeed for no reason or the worst possible reason, provided only that the requisite notice is given." The contract of employment, therefore, may now be relied upon where there is an overlap with section 186(2) of the Labour Relations Act (LRA), or where that section does not provide for a remedy.

The court also considered what constitutes constructive dismissal: that is to say, broadly speaking, resignation due to intolerable conditions at work.