Chilliebush v Johnston and Others (JR1234/08) [2010] ZALCJHB 35 (26 January 2010)

Chilliebush v Johnston and Others (JR1234/08) [2010] ZALCJHB 35 (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 nature of his duties, established an employment relationship. The removal of Miyeni as director did not...

Source-derived case information.

Citation
[2010] ZALCJHB 35
Parties
Applicant: Chilli Bush Communications (Pty) Ltd; Respondent: Commissioner Johnston; Respondent: CCMA; Respondent: Eric Gordon Miyeni
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 January 2010
Case Number
JR1234/08
Procedural Posture
Review Application / Judgment on Review of CCMA Ruling
Outcome
The CCMA ruling was reviewed and set aside. The respondent was found to be an employee and to have been dismissed. The dispute regarding 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, Dominant Impression Test, Shareholders Agreement, Removal of Director
Labour Law Civil Procedure Unfair Dismissal Employment Status Automatic Termination Dominant Impression Test Shareholders Agreement Removal of Director

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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 / Judgment on Review of CCMA Ruling

Legal Issues

  1. 1 Was the respondent an employee of the applicant within the meaning of the Labour Relations Act?
  2. 2 Was the respondent dismissed by the applicant as contemplated by the Labour Relations Act?
  3. 3 Can a shareholders' agreement or company articles lawfully provide for automatic termination of employment upon removal as director?

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 nature of his duties, established an employment relationship. The removal of Miyeni as director did not automatically terminate his employment, as neither the shareholders' agreement nor the articles could override statutory protections under the Labour Relations Act. The Court held that automatic termination clauses are invalid if they limit the right not to be unfairly dismissed. The respondent was dismissed by the applicant on 7 December 2006, as evidenced by the board resolution and...

Court Disposition

The CCMA ruling was reviewed and set aside. The respondent was found to be an employee and to have been dismissed. The dispute regarding 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 3rd respondent was an employee of the applicant and was dismissed on 7 December 2006.
  • The dispute about the fairness of the dismissal of the 3rd respondent is referred to the 2nd respondent to be determined by a commissioner other than the 1st respondent.