Assist Bakery 115 CC v Ngwenya NO and Others (JR668/16; JR649/16) [2017] ZALCJHB 481 (27 October 2017)

Assist Bakery 115 CC v Ngwenya NO and Others (JR668/16; JR649/16) [2017] ZALCJHB 481 (27 October 2017)

The commissioner identified the true nature of the dispute as the interpretation and application of section 198B of the Labour Relations Act, specifically regarding fixed term contracts and the status of the employees. However, he failed to arbitrate this dispute and instead determined whether Pick N Pay was the employer, an issue not properly before him. The commissioner incorrectly invoked section 200B without it being pleaded or proven by any party, and without evidence that the empowerment scheme was intended to defeat the purpose of the Act. The commissioner also failed to apply the correct legal test for employment relationships and did not follow binding precedent. The award was...

Citation
[2017] ZALCJHB 481
Parties
Applicant: Assist Bakery 115 CC; Applicant: Pick N Pay Retailers (Pty) Ltd; Respondent: Dumisane Johannes Ngwenya N.O; Respondent: CCMA; Respondent: Lethabo Masoga; Respondent: Lebogang Moeleso
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 October 2017
Case Number
JR668/16; JR649/16
Procedural Posture
Review Application / Opposed Review of Arbitration Award; Consolidated Hearing
Outcome
The arbitration award was reviewed and set aside. It was replaced with an order that Pick N Pay Retailers (Pty) Ltd is not the employer of Lethabo Masoga and Lebohang Moeleso. Each party is to pay its own costs.
Judges
GN Moshoana
Legal Topics
Fixed Term Contracts, Joint Employer Liability, Section 198b Interpretation, Section 200b Invocation, Arbitration Review, Empowerment Scheme Disputes
Labour Law Civil Procedure Fixed Term Contracts Joint Employer Liability Section 198b Interpretation Section 200b Invocation Arbitration Review Empowerment Scheme Disputes

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Parties

Assist Bakery 115 CC

Applicant

Pick N Pay Retailers (Pty) Ltd

Applicant

Dumisane Johannes Ngwenya N.O

Respondent

CCMA

Respondent

Lethabo Masoga

Respondent

Lebogang Moeleso

Respondent

Procedural Posture

Review Application / Opposed Review of Arbitration Award; Consolidated Hearing

Legal Issues

  1. 1 Did the commissioner correctly identify and arbitrate the true dispute before him.
  2. 2 Was section 200B of the Labour Relations Act properly invoked and applied.
  3. 3 Is Pick N Pay Retailers (Pty) Ltd the employer of the employees for purposes of the Labour Relations Act.

Ratio Decidendi

The commissioner identified the true nature of the dispute as the interpretation and application of section 198B of the Labour Relations Act, specifically regarding fixed term contracts and the status of the employees. However, he failed to arbitrate this dispute and instead determined whether Pick N Pay was the employer, an issue not properly before him. The commissioner incorrectly invoked section 200B without it being pleaded or proven by any party, and without evidence that the empowerment scheme was intended to defeat the purpose of the Act. The commissioner also failed to apply the correct legal test for employment relationships and did not follow binding precedent. The award was...

Court Disposition

The arbitration award was reviewed and set aside. It was replaced with an order that Pick N Pay Retailers (Pty) Ltd is not the employer of Lethabo Masoga and Lebohang Moeleso. Each party is to pay its own costs.

Orders

  • The arbitration award issued by Dumisane Johannes Ngwenya under case number GAEK9539-15 issued on 1 March 2016 is reviewed and set aside.
  • It is replaced with an order that Pick N Pay Retailers (Pty) Ltd is not the employer of Lethabo Masoga and Lebohang Moeleso.