Blue Hawk Tactical (Pty) Ltd v Commissioner Byrne N.O and Others (JR 1262/2022) [2023] ZALCJHB 83 (22 March 2023)

Blue Hawk Tactical (Pty) Ltd v Commissioner Byrne N.O and Others (JR 1262/2022) [2023] ZALCJHB 83 (22 March 2023)

The court found that the CCMA lacked jurisdiction because the employee, Sithole, was not dismissed but his fixed term contract expired and was not renewed. The commissioner failed to require Sithole to prove the existence of a dismissal, as required by the LRA and CCMA Rules. The commissioner acted ultra vires by invoking section 198B of the LRA without a referral under section 198D, thereby exceeding his powers. The arbitration award was therefore a nullity and unsustainable in law, and was reviewed and set aside. The court replaced the award with an order declaring that Sithole was not dismissed and that the CCMA lacked jurisdiction to arbitrate the dispute.

Citation
[2023] ZALCJHB 83
Parties
Applicant: Blue Hawk Tactical (Pty) Ltd; Respondent: Commissioner Richard Byrne N.O; Respondent: The CCMA; Respondent: Innocent Sithole
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 March 2023
Case Number
JR 1262/2022
Procedural Posture
Review Application / Judgment Delivered After Unopposed Review Application
Outcome
Application for review and setting aside of the arbitration award is granted.
Judges
G N Moshoana
Legal Topics
Ccma Jurisdiction, Fixed Term Contracts, Unfair Dismissal, Section 198b Lra, Ultra Vires, Arbitration Review
Labour Law Ccma Jurisdiction Fixed Term Contracts Unfair Dismissal Section 198b Lra Ultra Vires Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

Blue Hawk Tactical (Pty) Ltd

Applicant

Commissioner Richard Byrne N.O

Respondent

The CCMA

Respondent

Innocent Sithole

Respondent

Procedural Posture

Review Application / Judgment Delivered After Unopposed Review Application

Legal Issues

  1. 1 Whether the CCMA had jurisdiction to arbitrate the dispute when the employee was not dismissed but his fixed term contract expired.
  2. 2 Whether the commissioner acted ultra vires by invoking section 198B of the LRA absent a referral under section 198D.
  3. 3 Whether the arbitration award was reviewable on the grounds of excess of power and irregularity.

Ratio Decidendi

The court found that the CCMA lacked jurisdiction because the employee, Sithole, was not dismissed but his fixed term contract expired and was not renewed. The commissioner failed to require Sithole to prove the existence of a dismissal, as required by the LRA and CCMA Rules. The commissioner acted ultra vires by invoking section 198B of the LRA without a referral under section 198D, thereby exceeding his powers. The arbitration award was therefore a nullity and unsustainable in law, and was reviewed and set aside. The court replaced the award with an order declaring that Sithole was not dismissed and that the CCMA lacked jurisdiction to arbitrate the dispute.

Court Disposition

Application for review and setting aside of the arbitration award is granted.

Orders

  • The arbitration award issued by Commissioner Richard Byrne under case number GAEK2621-22 dated 30 May 2022 is reviewed and set aside.
  • It is replaced with an order that Innocent Sithole was not dismissed and that the CCMA lacked jurisdiction to arbitrate his referred dispute.