Avgold - Target Division v Commission for Conciliation, Mediation and Arbitration and Others (JR592/05) [2009] ZALCJHB 45 (6 October 2009)

Avgold - Target Division v Commission for Conciliation, Mediation and Arbitration and Others (JR592/05) [2009] ZALCJHB 45 (6 October 2009)

The Labour Court found that the referral to the CCMA was premature, as no dismissal had occurred at the time of referral. The respondent was employed on fixed term contracts with clear termination dates and non-variation clauses, and there was no reasonable expectation of renewal created by the applicant. The CCMA...

Source-derived case information.

Citation
[2009] ZALCJHB 45
Parties
Applicant: Avgold – Target Division; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Mkhosana NO; Respondent: Commissioner Mvumbi NO; Respondent: Marius W Kotze
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 October 2009
Case Number
JR592/05
Procedural Posture
Review Application / Judgment on Review of CCMA Certificate and Arbitration Award
Outcome
Application for review granted. The ruling and award made by the third respondent are reviewed and set aside. Costs awarded against the fourth respondent.
Judges
AC Basson
Legal Topics
Unfair Dismissal, Fixed Term Contracts, Jurisdiction of Ccma, Premature Referral, Review of Administrative Action
Labour Law Civil Procedure Unfair Dismissal Fixed Term Contracts Jurisdiction of Ccma Premature Referral Review of Administrative Action

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Summary, issues, holding and outcome

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Parties

Avgold – Target Division

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Mkhosana NO

Respondent

Commissioner Mvumbi NO

Respondent

Marius W Kotze

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Certificate and Arbitration Award

Legal Issues

  1. 1 Whether the CCMA had jurisdiction to conciliate and arbitrate the dispute when the referral was premature.
  2. 2 Whether the ruling and award by the third respondent (Commissioner Mvumbi) should be reviewed and set aside.
  3. 3 Whether the applicant created a reasonable expectation of renewal of the fixed term contract for the fourth respondent.

Ratio Decidendi

The Labour Court found that the referral to the CCMA was premature, as no dismissal had occurred at the time of referral. The respondent was employed on fixed term contracts with clear termination dates and non-variation clauses, and there was no reasonable expectation of renewal created by the applicant. The CCMA did not have jurisdiction to conciliate or arbitrate the dispute, and the arbitrating commissioner erred by proceeding with the arbitration. The ruling and award made by the third respondent were reviewed and set aside. Costs were awarded against the fourth respondent.

Court Disposition

Application for review granted. The ruling and award made by the third respondent are reviewed and set aside. Costs awarded against the fourth respondent.

Orders

  • The ruling made by the third respondent on 31 March 2004 is reviewed and set aside in terms of section 158(1)(g) of the Labour Relations Act 66 of 1995.
  • The award made by the third respondent on 3 February 2004 is reviewed and set aside in terms of section 145 of the Labour Relations Act 66 of 1995.