Evan Gordon Enterprises (Pty) Ltd v Phetla NO and Others (JR 1147/07) [2011] ZALCJHB 68; (2012) 33 ILJ 229 (LC) (16 August 2011)

Evan Gordon Enterprises (Pty) Ltd v Phetla NO and Others (JR 1147/07) [2011] ZALCJHB 68; (2012) 33 ILJ 229 (LC) (16 August 2011)

The Labour Court found that the arbitrator exceeded his jurisdiction by deciding the fairness of a dismissal that was, in substance, automatically unfair under section 187(1) of the LRA due to union membership. The arbitrator failed to make a clear finding on whether the misconduct charge was proved and instead based his conclusion on the timing of the incident and the employee's union activities. The arbitrator should have paused to determine whether the employee was relying on an automatically unfair dismissal and advised that such disputes fall outside the CCMA's jurisdiction unless both parties consent. The review application was not dismissed for delay, as the applicant acted...

Citation
[2011] ZALCJHB 68
Parties
Applicant: Evan Gordon Enterprises (Pty) Ltd; Respondent: M Phetla (N.O.); Respondent: National Bargaining Council for the Chemical Industries; Respondent: Lamola Andries Chuene
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 August 2011
Case Number
JR 1147/07
Procedural Posture
Review Application / Judgment on Review and Rule 11 Application
Outcome
Arbitration award set aside and substituted with a finding that the CCMA lacks jurisdiction to determine the dismissal dispute; no order as to costs.
Judges
Lagrange
Legal Topics
Automatically Unfair Dismissal, Jurisdiction of Ccma, Section 187 Lra, Review of Arbitration Award, Procedural Fairness, Union Membership Rights
Labour Law Civil Procedure Automatically Unfair Dismissal Jurisdiction of Ccma Section 187 Lra Review of Arbitration Award Procedural Fairness Union Membership Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Evan Gordon Enterprises (Pty) Ltd

Applicant

M Phetla (N.O.)

Respondent

National Bargaining Council for the Chemical Industries

Respondent

Lamola Andries Chuene

Respondent

Procedural Posture

Review Application / Judgment on Review and Rule 11 Application

Legal Issues

  1. 1 Whether the arbitrator had jurisdiction to determine an automatically unfair dismissal based on union membership.
  2. 2 Whether the arbitrator's findings were rationally connected to the evidence presented.
  3. 3 Whether the review application should be dismissed due to delay.

Ratio Decidendi

The Labour Court found that the arbitrator exceeded his jurisdiction by deciding the fairness of a dismissal that was, in substance, automatically unfair under section 187(1) of the LRA due to union membership. The arbitrator failed to make a clear finding on whether the misconduct charge was proved and instead based his conclusion on the timing of the incident and the employee's union activities. The arbitrator should have paused to determine whether the employee was relying on an automatically unfair dismissal and advised that such disputes fall outside the CCMA's jurisdiction unless both parties consent. The review application was not dismissed for delay, as the applicant acted...

Court Disposition

Arbitration award set aside and substituted with a finding that the CCMA lacks jurisdiction to determine the dismissal dispute; no order as to costs.

Orders

  • The first respondent’s arbitration award dated 13 April 2007 under case number GPCHEM3628 is reviewed and set aside.
  • The arbitrator’s award is substituted with a finding that the CCMA lacks jurisdiction to determine the dismissal dispute which falls within the ambit of section 187(1) read with section 5(2)(c)(i) of the Labour Relations Act 66 of 1995.