Elston v McEwan NO and Others (C662/07) [2009] ZALCCT 12 (9 January 2009)

Elston v McEwan NO and Others (C662/07) [2009] ZALCCT 12 (9 January 2009)

The court found that the applicant was not an employee of the second respondent during the disputed period, as she rendered services through a close corporation and was paid accordingly. The arbitrator's decision was reasonable and supported by the evidence, and there was no gross irregularity or irrationality in the award. The grounds for review under section 145(2) of the LRA, as suffused by the Sidumo reasonableness standard, were not met. The application for review was dismissed, and no order was made regarding costs of the arbitration, as awarding such costs could discourage individuals from referring disputes for arbitration.

Citation
[2009] ZALCCT 12
Parties
Applicant: Ingrid Elston; Respondent: Gail McEwan NO; Respondent: Shell SA Energy (Pty) Ltd; Respondent: National Bargaining Council for the Chemical Industry
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
9 January 2009
Case Number
C662/07
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
Ngalwana AJ
Legal Topics
Severance Pay, Employee Status, Arbitration Review, Gross Irregularity, Jurisdictional Fact
Labour Law Civil Procedure Severance Pay Employee Status Arbitration Review Gross Irregularity Jurisdictional Fact

Case Brief

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Parties

Ingrid Elston

Applicant

Gail McEwan NO

Respondent

Shell SA Energy (Pty) Ltd

Respondent

National Bargaining Council for the Chemical Industry

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant was an employee of the second respondent during the period 1 June 1997 to 30 April 2001.
  2. 2 Whether the arbitration award made by the first respondent should be reviewed and set aside under section 77(2) of the BCEA.
  3. 3 Whether the applicant is entitled to severance pay for the disputed period.

Ratio Decidendi

The court found that the applicant was not an employee of the second respondent during the disputed period, as she rendered services through a close corporation and was paid accordingly. The arbitrator's decision was reasonable and supported by the evidence, and there was no gross irregularity or irrationality in the award. The grounds for review under section 145(2) of the LRA, as suffused by the Sidumo reasonableness standard, were not met. The application for review was dismissed, and no order was made regarding costs of the arbitration, as awarding such costs could discourage individuals from referring disputes for arbitration.

Court Disposition

Application dismissed with costs.

Orders

  • The application is dismissed with costs.
  • No order is made regarding costs of the arbitration proceedings.