Bracks NO and Another v Rand Water and Another (JA 2/08) [2010] ZALAC 4; (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR 795 (LAC) (9 March 2010)

Bracks NO and Another v Rand Water and Another (JA 2/08) [2010] ZALAC 4; (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR 795 (LAC) (9 March 2010)

The Labour Appeal Court held that section 191(12) of the LRA does not restrict the CCMA's jurisdiction to disputes concerning only the substantive fairness of dismissals for operational requirements involving a single employee. The section gives such an employee the election to refer the dispute, whether it concerns substantive or procedural fairness, to either the CCMA for arbitration or to the Labour Court for adjudication. The court rejected the Labour Court's interpretation that procedural fairness disputes must be referred exclusively to the Labour Court, finding that this approach defeats the purpose of the section and the legislative intent to provide single employees with...

Citation
[2010] ZALAC 4
Parties
Appellant: Advocate Raynold Bracks N.O.; Appellant: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Rand Water; Respondent: Martha Christina Swart
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
9 March 2010
Case Number
JA 2/08
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment
Outcome
Appeal upheld. The CCMA has jurisdiction under section 191(12) to arbitrate disputes about the procedural fairness of dismissals for operational requirements involving a single employee.
Judges
Jappie, Davis, Leeuw
Legal Topics
Unfair Dismissal, Retrenchment, Procedural Fairness, Jurisdiction of Ccma, Section 189 Consultation, Section 191 Election
Labour Law Unfair Dismissal Retrenchment Procedural Fairness Jurisdiction of Ccma Section 189 Consultation Section 191 Election

Case Brief

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Parties

Advocate Raynold Bracks N.O.

Appellant

Commission for Conciliation, Mediation and Arbitration (CCMA)

Appellant

Rand Water

Respondent

Martha Christina Swart

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment

Legal Issues

  1. 1 Does the CCMA have jurisdiction under section 191(12) of the LRA to arbitrate disputes about the procedural fairness of dismissals for operational requirements involving a single employee?
  2. 2 Is a single employee who alleges procedural unfairness in a retrenchment entitled to refer the dispute to the CCMA for arbitration, or only to the Labour Court?

Ratio Decidendi

The Labour Appeal Court held that section 191(12) of the LRA does not restrict the CCMA's jurisdiction to disputes concerning only the substantive fairness of dismissals for operational requirements involving a single employee. The section gives such an employee the election to refer the dispute, whether it concerns substantive or procedural fairness, to either the CCMA for arbitration or to the Labour Court for adjudication. The court rejected the Labour Court's interpretation that procedural fairness disputes must be referred exclusively to the Labour Court, finding that this approach defeats the purpose of the section and the legislative intent to provide single employees with...

Court Disposition

Appeal upheld. The CCMA has jurisdiction under section 191(12) to arbitrate disputes about the procedural fairness of dismissals for operational requirements involving a single employee.

Orders

  • The appeal is upheld.
  • It is declared that the CCMA has jurisdiction in terms of section 191(12) of the LRA to hear disputes about the procedural fairness of a dismissal for operational requirements involving a single employee.