Dyokhwe v De Kock NO and Others (C 418/11) [2012] ZALCCT 25; [2012] 10 BLLR 1012 (LC); (2012) 33 ILJ 2401 (LC) (21 June 2012)

Dyokhwe v De Kock NO and Others (C 418/11) [2012] ZALCCT 25; [2012] 10 BLLR 1012 (LC); (2012) 33 ILJ 2401 (LC) (21 June 2012)

The court found that Mondi never terminated the applicant's employment and that Adecco neither procured nor provided the applicant to Mondi as required by section 198 of the LRA. The arrangement was a sham, not a genuine TES relationship, and the applicant remained Mondi's employee. The Adecco contract was void due...

Source-derived case information.

Citation
[2012] ZALCCT 25
Parties
Applicant: Khululekile Dyokhwe; Respondent: Coen de Kock N.O.; Respondent: CCMA; Respondent: Mondi Packaging South Africa (Pty) Ltd; Respondent: Stratostaff (Pty) Ltd t/a Adecco Recruitment Services
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
21 June 2012
Case Number
C 418/11
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application succeeds. The arbitration ruling is set aside and replaced with a declaration that Mondi was the applicant’s true employer at the time of dismissal.
Judges
Steenkamp
Legal Topics
Temporary Employment Service, Unfair Dismissal, Misrepresentation, Public Policy, Employment Relationship, Labour Broking
Labour Law Civil Procedure Temporary Employment Service Unfair Dismissal Misrepresentation Public Policy Employment Relationship Labour Broking

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 6 Authorities cited 14 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Khululekile Dyokhwe

Applicant

Coen de Kock N.O.

Respondent

CCMA

Respondent

Mondi Packaging South Africa (Pty) Ltd

Respondent

Stratostaff (Pty) Ltd t/a Adecco Recruitment Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Who was the true employer of the applicant at the time of his dismissal: the temporary employment service (Adecco) or the client (Mondi)?
  2. 2 Was the arrangement between Mondi, Adecco, and the applicant a genuine TES relationship or a sham in fraudem legis?
  3. 3 Was the applicant induced to sign the Adecco contract by misrepresentation, rendering it void?

Ratio Decidendi

The court found that Mondi never terminated the applicant's employment and that Adecco neither procured nor provided the applicant to Mondi as required by section 198 of the LRA. The arrangement was a sham, not a genuine TES relationship, and the applicant remained Mondi's employee. The Adecco contract was void due to misrepresentation, as the applicant was illiterate and the terms were not explained to him. The commissioner's reliance on advice from a CCMA official was irrelevant and unreasonable. Enforcing the Adecco contract would be contrary to public policy, given the applicant's vulnerability and the inequality of bargaining power. The commissioner’s ruling was so unreasonable that...

Court Disposition

The review application succeeds. The arbitration ruling is set aside and replaced with a declaration that Mondi was the applicant’s true employer at the time of dismissal.

Orders

  • The ruling of the first respondent under case number WECT 4323-09 dated 21 April 2011 is reviewed and set aside.
  • The ruling is replaced with a ruling declaring that Mondi (the third respondent) was the applicant’s true employer at the time of his dismissal.