ESG Recruitment CC v Commissioner Tsatsimpe NO and Others (JR1601/06) [2008] ZALCJHB 4 (11 July 2008)

ESG Recruitment CC v Commissioner Tsatsimpe NO and Others (JR1601/06) [2008] ZALCJHB 4 (11 July 2008)

The court found that the commissioner failed to properly interrogate whether the fulfilment of the resolutive condition in Engelbrecht's contract brought the contract to an end by operation of law or whether such a clause was invalid for public policy reasons. The commissioner did not consider relevant case law or...

Source-derived case information.

Citation
[2008] ZALCJHB 4
Parties
Applicant: ESG Recruitment CC; Respondent: Commissioner Mapalo Tsatsimpe N.O.; Respondent: Dispute Resolution Centre, a division of the Motor Industry Bargaining Council; Respondent: NUMSA obo Cornelius Engelbrecht
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 July 2008
Case Number
JR1601/06
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner; no order as to costs.
Judges
A Van Niekerk
Legal Topics
Dismissal Definition, Limited Duration Contract, Resolutive Condition, Temporary Employment Service, Arbitration Review
Labour Law Dismissal Definition Limited Duration Contract Resolutive Condition Temporary Employment Service Arbitration Review

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Summary, issues, holding and outcome

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Parties

ESG Recruitment CC

Applicant

Commissioner Mapalo Tsatsimpe N.O.

Respondent

Dispute Resolution Centre, a division of the Motor Industry Bargaining Council

Respondent

NUMSA obo Cornelius Engelbrecht

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the termination of Engelbrecht's contract constituted a dismissal under section 186 of the Labour Relations Act.
  2. 2 Whether the commissioner properly considered the effect of the resolutive condition in the employment contract.
  3. 3 Whether the arbitration award was reasonable in law.

Ratio Decidendi

The court found that the commissioner failed to properly interrogate whether the fulfilment of the resolutive condition in Engelbrecht's contract brought the contract to an end by operation of law or whether such a clause was invalid for public policy reasons. The commissioner did not consider relevant case law or the complexities of the triangular employment relationship. As a result, the conclusion reached by the commissioner was unreasonable and could not be sustained. The matter required further consideration and was remitted for rehearing before a different commissioner.

Court Disposition

Arbitration award reviewed and set aside; matter remitted for rehearing before a different commissioner; no order as to costs.

Orders

  • The commissioner’s arbitration award dated 22 March 2006 is reviewed and set aside.
  • The matter is remitted to the Dispute Resolution Centre of the Motor Industry Bargaining Council for determination before a different commissioner.