Ferro Pestana v Gideon Pretorious Inc and Others (JR 346/09) [2010] ZALC 271 (13 April 2010)

Ferro Pestana v Gideon Pretorious Inc and Others (JR 346/09) [2010] ZALC 271 (13 April 2010)

The commissioner materially misdirected herself by failing to consider established case law that outsourcing arrangements can constitute a transfer under section 197 of the Labour Relations Act, and that such a transfer does not require the sale of a business. The applicant provided a reasonable explanation for the...

Source-derived case information.

Citation
[2010] ZALC 271
Parties
Applicant: Maria Dolores Ferro Pestana; Respondent: Gideon Pretorius Inc.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Lungile Mtiya
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 April 2010
Case Number
JR 346/09
Procedural Posture
Review Application / Judgment on Review of CCMA Condonation Ruling
Outcome
The review application succeeds; the CCMA condonation ruling is set aside and substituted with an order granting condonation for the late referral of the dismissal dispute against the first respondent.
Judges
Lagrange
Legal Topics
Section 197 Transfer, Automatic Unfair Dismissal, Condonation, Outsourcing, Prospects of Success
Labour Law Section 197 Transfer Automatic Unfair Dismissal Condonation Outsourcing Prospects of Success

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Summary, issues, holding and outcome

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Parties

Maria Dolores Ferro Pestana

Applicant

Gideon Pretorius Inc.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Lungile Mtiya

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Condonation Ruling

Legal Issues

  1. 1 Whether the commissioner erred in dismissing the condonation application for late referral of an unfair dismissal dispute against the first respondent.
  2. 2 Whether the outsourcing arrangement between Gensec and the first respondent constituted a transfer under section 197 of the Labour Relations Act.
  3. 3 Whether the applicant has reasonable prospects of success in establishing an automatically unfair dismissal related to a transfer of undertaking.

Ratio Decidendi

The commissioner materially misdirected herself by failing to consider established case law that outsourcing arrangements can constitute a transfer under section 197 of the Labour Relations Act, and that such a transfer does not require the sale of a business. The applicant provided a reasonable explanation for the delay in referral, based on a change in legal understanding following relevant case law. The applicant demonstrated reasonable prospects of success in establishing that her dismissal was automatically unfair and related to a transfer of undertaking. The commissioner’s ruling was therefore set aside and substituted with an order granting condonation for the late referral.

Court Disposition

The review application succeeds; the CCMA condonation ruling is set aside and substituted with an order granting condonation for the late referral of the dismissal dispute against the first respondent.

Orders

  • The condonation ruling of the third respondent under CCMA case number GAJB 37691-08 dated 30 January 2009 is reviewed and set aside.
  • The condonation ruling is substituted with an order granting the applicant condonation for the late referral of her dismissal dispute in respect of the first respondent to the Commission for Conciliation, Mediation and Arbitration.