Assign Services (Pty) Ltd v CCMA and Others (JR1230/15) [2015] ZALCJHB 283; [2015] 11 BLLR 1160 (LC); (2015) 36 ILJ 2853 (LC) (8 September 2015)

Assign Services (Pty) Ltd v CCMA and Others (JR1230/15) [2015] ZALCJHB 283; [2015] 11 BLLR 1160 (LC); (2015) 36 ILJ 2853 (LC) (8 September 2015)

The Labour Court held that the deeming provision in section 198A(3)(b) of the LRA does not extinguish the employment relationship between the TES and the placed worker. Instead, the TES remains an employer for the purposes of the LRA, and the client acquires a parallel set of statutory rights and obligations. The court found that the CCMA commissioner erred in law by concluding that the client is the sole employer. The statutory protections and obligations under the LRA apply to both the TES and the client, and nothing in the deeming provision invalidates the contract of employment between TES and worker. The review was granted, and the arbitration award was set aside.

Citation
[2015] ZALCJHB 283
Parties
Applicant: Assign Services (Pty) Ltd; Respondent: CCMA; Respondent: Commissioner A.C. Osman N.O.; Respondent: NUMSA; Respondent: Krost Shelving & Racking (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
JR1230/15
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
Arbitration award reviewed and set aside; no order as to costs.
Judges
Brassey
Legal Topics
Temporary Employment Services, Labour Relations Amendment Act, Deeming Provisions, Review of Arbitration Award, Employment Relationship
Labour Law Civil Procedure Temporary Employment Services Labour Relations Amendment Act Deeming Provisions Review of Arbitration Award Employment Relationship

Case Brief

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Parties

Assign Services (Pty) Ltd

Applicant

CCMA

Respondent

Commissioner A.C. Osman N.O.

Respondent

NUMSA

Respondent

Krost Shelving & Racking (Pty) Ltd

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 What is the proper construction of the deeming provision in section 198A(3)(b) of the Labour Relations Act as amended?
  2. 2 Does the Temporary Employment Service (TES) remain an employer for the purposes of the LRA after three months of placement?
  3. 3 Was the CCMA commissioner correct in finding that the client is the sole employer of placed employees under the LRA?

Ratio Decidendi

The Labour Court held that the deeming provision in section 198A(3)(b) of the LRA does not extinguish the employment relationship between the TES and the placed worker. Instead, the TES remains an employer for the purposes of the LRA, and the client acquires a parallel set of statutory rights and obligations. The court found that the CCMA commissioner erred in law by concluding that the client is the sole employer. The statutory protections and obligations under the LRA apply to both the TES and the client, and nothing in the deeming provision invalidates the contract of employment between TES and worker. The review was granted, and the arbitration award was set aside.

Court Disposition

Arbitration award reviewed and set aside; no order as to costs.

Orders

  • The arbitration award issued by the second respondent on 29 June 2015 under case number ECEL 1652-15 is reviewed and set aside.
  • There will be no order as to costs.