AMCU and Others v Piet Wes Civils CC and Another (J2834/16, J2845/16) [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) (13 January 2017)

AMCU and Others v Piet Wes Civils CC and Another (J2834/16, J2845/16) [2017] ZALCJHB 7; (2017) 38 ILJ 1128 (LC); [2017] 5 BLLR 501 (LC) (13 January 2017)

The court found that the employment contracts were not genuinely fixed term as contemplated by s 198B of the LRA, but were either of unlimited duration or must be deemed indefinite. The termination of the Exxaro contracts did not constitute a specified event justifying automatic termination of employment. The respondents failed to discharge the onus of proving a justifiable reason for fixed term contracts. As a result, the employees were dismissed for operational requirements without the required consultation under s 189 and s 189A. The appropriate remedy under s 189A(13) is reinstatement of the employees until the employers have complied with a fair procedure, except for certain Piet Wes...

Citation
[2017] ZALCJHB 7
Parties
Applicant: AMCU; Applicant: AMCU MEMBERS; Respondent: PIET WES CIVILS CC; Respondent: WATERKLOOF SKOONMAAKDIENSTE CC
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 January 2017
Case Number
J2834/16, J2845/16
Procedural Posture
Urgent Application / Application for Urgent Relief Under S 189 A(13) of the Lra; Judgment Delivered After Consolidation of Two Applications
Outcome
Application granted in part; employees reinstated pending proper consultation, except for certain Piet Wes employees whose dispute is referred to oral evidence.
Judges
Steenkamp
Legal Topics
Fixed Term Contracts, Large Scale Retrenchment, Consultation Requirements, Section 189a Application, Termination for Operational Requirements
Labour Law Civil Procedure Fixed Term Contracts Large Scale Retrenchment Consultation Requirements Section 189a Application Termination for Operational Requirements

Case Brief

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Parties

AMCU

Applicant

AMCU MEMBERS

Applicant

PIET WES CIVILS CC

Respondent

WATERKLOOF SKOONMAAKDIENSTE CC

Respondent

Procedural Posture

Urgent Application / Application for Urgent Relief Under S 189 A(13) of the Lra; Judgment Delivered After Consolidation of Two Applications

Legal Issues

  1. 1 Whether the employees were dismissed for operational requirements or their fixed term contracts terminated by operation of law.
  2. 2 Whether the employment contracts were genuinely fixed term as contemplated by s 198B of the LRA.
  3. 3 Whether the respondents were required to consult with AMCU and the employees in terms of s 189 and s 189A of the LRA.

Ratio Decidendi

The court found that the employment contracts were not genuinely fixed term as contemplated by s 198B of the LRA, but were either of unlimited duration or must be deemed indefinite. The termination of the Exxaro contracts did not constitute a specified event justifying automatic termination of employment. The respondents failed to discharge the onus of proving a justifiable reason for fixed term contracts. As a result, the employees were dismissed for operational requirements without the required consultation under s 189 and s 189A. The appropriate remedy under s 189A(13) is reinstatement of the employees until the employers have complied with a fair procedure, except for certain Piet Wes...

Court Disposition

Application granted in part; employees reinstated pending proper consultation, except for certain Piet Wes employees whose dispute is referred to oral evidence.

Orders

  • The respondents, Piet Wes Civils CC and Waterkloof Skoonmaakdienste CC, are ordered to reinstate the employees listed in each application, except as set out below.
  • The respondents are ordered to reinstate the employees as contemplated in s 189A(13) of the LRA until they have complied with a fair procedure.