Chillibush v Johnston and Other (JR 1234/08) [2010] ZALC 3; (2010) 31 ILJ 1358 (LC) ; [2010] 6 BLLR 607 (LC) (26 January 2010)

Chillibush v Johnston and Other (JR 1234/08) [2010] ZALC 3; (2010) 31 ILJ 1358 (LC) ; [2010] 6 BLLR 607 (LC) (26 January 2010)

The Labour Court found that the respondent, Eric Miyeni, was both a director and an employee of the applicant, Chilli Bush Communications (Pty) Ltd. The evidence, including remuneration, payslips, and the shareholders agreement, supported the existence of an employment relationship. The Court held that company law provisions or shareholders agreements cannot override statutory protections against unfair dismissal under the Labour Relations Act. The automatic termination of employment upon removal as director, as argued by the applicant, was found to be impermissible and contrary to public policy and statutory rights. The Court concluded that the respondent was dismissed by the applicant...

Citation
[2010] ZALC 3
Parties
Applicant: Chilli Bush Communications (Pty) Ltd; Respondent: Commissioner Johnston; Respondent: CCMA; Respondent: Eric Gordon Miyeni
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
26 January 2010
Case Number
JR 1234/08
Procedural Posture
Review Application / Labour Court Review of CCMA Jurisdiction and Dismissal Ruling
Outcome
The Labour Court reviewed and set aside the CCMA ruling, substituting a finding that the respondent was an employee and was dismissed. The fairness of the dismissal was referred to the CCMA for determination by a different commissioner. Costs were awarded to the respondent.
Judges
AC Basson
Legal Topics
Unfair Dismissal, Employment Status, Automatic Termination Clauses, Dominant Impression Test, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Employment Status Automatic Termination Clauses Dominant Impression Test Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Chilli Bush Communications (Pty) Ltd

Applicant

Commissioner Johnston

Respondent

CCMA

Respondent

Eric Gordon Miyeni

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Jurisdiction and Dismissal Ruling

Legal Issues

  1. 1 Whether the respondent was an employee of the applicant at the relevant time.
  2. 2 Whether the respondent was dismissed by the applicant as contemplated by the Labour Relations Act.
  3. 3 Whether the CCMA ruling was reviewable and should be set aside.

Ratio Decidendi

The Labour Court found that the respondent, Eric Miyeni, was both a director and an employee of the applicant, Chilli Bush Communications (Pty) Ltd. The evidence, including remuneration, payslips, and the shareholders agreement, supported the existence of an employment relationship. The Court held that company law provisions or shareholders agreements cannot override statutory protections against unfair dismissal under the Labour Relations Act. The automatic termination of employment upon removal as director, as argued by the applicant, was found to be impermissible and contrary to public policy and statutory rights. The Court concluded that the respondent was dismissed by the applicant...

Court Disposition

The Labour Court reviewed and set aside the CCMA ruling, substituting a finding that the respondent was an employee and was dismissed. The fairness of the dismissal was referred to the CCMA for determination by a different commissioner. Costs were awarded to the respondent.

Orders

  • The ruling of the second respondent is reviewed and set aside and replaced by an order that the third respondent was an employee of the applicant and was dismissed on 7 December 2006.
  • The dispute about the fairness of the dismissal of the third respondent is referred to the second respondent to be determined by a commissioner other than the first respondent.