Big Sky Coaches v Mothupi NO and Others (JR1370/04) [2009] ZALCJHB 5 (25 February 2009)

Big Sky Coaches v Mothupi NO and Others (JR1370/04) [2009] ZALCJHB 5 (25 February 2009)

The court found that the Commissioner committed a gross irregularity by misconstruing the nature of the investigation required and by preventing the Applicant's representative from cross-examining the Third Respondent on the true nature of the employment relationship. The Commissioner failed to appreciate that his powers under section 138 of the Labour Relations Act must be exercised to ensure fairness. The evidence did not support the Third Respondent's claim of dismissal, and inconsistencies in his version undermined his credibility. The Commissioner should have found that the employee failed to discharge the duty of proving dismissal, and consequently, the CCMA lacked jurisdiction to...

Citation
[2009] ZALCJHB 5
Parties
Applicant: Big Sky Coaches; Respondent: Mothupi, T N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Marumo Steven
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
25 February 2009
Case Number
JR1370/04
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The award is substituted to reflect that the employee was not dismissed and the CCMA lacks jurisdiction.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Jurisdiction of Ccma, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Jurisdiction of Ccma Procedural Fairness Substantive Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 2 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Big Sky Coaches

Applicant

Mothupi, T N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Marumo Steven

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Third Respondent was dismissed by the Applicant within the meaning of the Labour Relations Act.
  2. 2 Whether the CCMA had jurisdiction to entertain the dispute.
  3. 3 Whether the Commissioner conducted the arbitration proceedings in a procedurally and substantively fair manner.

Ratio Decidendi

The court found that the Commissioner committed a gross irregularity by misconstruing the nature of the investigation required and by preventing the Applicant's representative from cross-examining the Third Respondent on the true nature of the employment relationship. The Commissioner failed to appreciate that his powers under section 138 of the Labour Relations Act must be exercised to ensure fairness. The evidence did not support the Third Respondent's claim of dismissal, and inconsistencies in his version undermined his credibility. The Commissioner should have found that the employee failed to discharge the duty of proving dismissal, and consequently, the CCMA lacked jurisdiction to...

Court Disposition

The arbitration award is reviewed and set aside. The award is substituted to reflect that the employee was not dismissed and the CCMA lacks jurisdiction.

Orders

  • The arbitration award of the Second Respondent under case number FS1949-03 dated 20 April 2004 is reviewed and set aside.
  • The award is substituted with: (a) The Applicant, Mr Marumo Steven, was not dismissed. (b) The CCMA does not have jurisdiction to entertain the Applicant's disputes, and accordingly the claim is dismissed.