CMC Global Outsourcing (Pty) Ltd and Another v Van Niekerk and Others (JR408/22) [2024] ZALCJHB 198 (8 May 2024)

CMC Global Outsourcing (Pty) Ltd and Another v Van Niekerk and Others (JR408/22) [2024] ZALCJHB 198 (8 May 2024)

The Labour Court held that after three months of placement, section 198A(3)(b) of the LRA deems the client (RTT) to be the sole employer, and no dual employment relationship exists with the TES (CMC). However, there was no evidence that RTT dismissed the first respondent; the removal from RTT was initiated by CMC,...

Source-derived case information.

Citation
[2024] ZALCJHB 198
Parties
Applicant: CMC Global Outsourcing (Pty) Ltd; Applicant: RTT Group (Pty) Ltd; Respondent: Eugene Van Niekerk; Respondent: Nomusa Mbhele N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
8 May 2024
Case Number
JR408/22
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application upheld in part and dismissed in part. Arbitration award against RTT set aside; unfair dismissal by CMC confirmed; compensation reduced.
Judges
S Snyman
Legal Topics
Temporary Employment Services, Section 198a Lra, Unfair Dismissal, Compensation Award, Jurisdiction of Ccma, Operational Requirements Retrenchment
Labour Law Civil Procedure Temporary Employment Services Section 198a Lra Unfair Dismissal Compensation Award Jurisdiction of Ccma Operational Requirements Retrenchment

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Summary, issues, holding and outcome

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Parties

CMC Global Outsourcing (Pty) Ltd

Applicant

RTT Group (Pty) Ltd

Applicant

Eugene Van Niekerk

Respondent

Nomusa Mbhele N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the CCMA had jurisdiction to entertain the unfair dismissal dispute against RTT Group (Pty) Ltd.
  2. 2 Whether the first respondent was dismissed by RTT Group (Pty) Ltd or by CMC Global Outsourcing (Pty) Ltd.
  3. 3 Whether the dismissal of the first respondent by CMC Global Outsourcing (Pty) Ltd was substantively and procedurally fair.

Ratio Decidendi

The Labour Court held that after three months of placement, section 198A(3)(b) of the LRA deems the client (RTT) to be the sole employer, and no dual employment relationship exists with the TES (CMC). However, there was no evidence that RTT dismissed the first respondent; the removal from RTT was initiated by CMC, which acted under the mistaken belief that it remained the employer. The first respondent voluntarily entered into a new employment contract with CMC, and his subsequent dismissal by CMC for operational requirements was both substantively and procedurally unfair. The compensation awarded by the arbitrator was excessive given the short period of service and lack of evidence of...

Court Disposition

Review application upheld in part and dismissed in part. Arbitration award against RTT set aside; unfair dismissal by CMC confirmed; compensation reduced.

Orders

  • The applicants’ review application is upheld in part and dismissed in part.
  • The arbitration award of the second respondent dated 13 February 2022 under case number GAEK 7867 – 21 is reviewed and set aside.