Hamper Sales (Pty) Ltd and Another v L.D. Mahlahangu (N. O.) and Others (JR 2982/19) [2023] ZALCJHB 22; (2023) 44 ILJ 1072 (LC) (20 February 2023)

Hamper Sales (Pty) Ltd and Another v L.D. Mahlahangu (N. O.) and Others (JR 2982/19) [2023] ZALCJHB 22; (2023) 44 ILJ 1072 (LC) (20 February 2023)

The court found that Miller was engaged as an independent contractor, not an employee. The evidence showed she was paid for results, had autonomy over her work, was not subject to the firms' control regarding hours or methods, and invoiced for her services. Her registration as a micro business with SARS and the absence of statutory employment deductions further supported this. The arbitrator's reliance on factors such as attendance at meetings and provision of equipment was insufficient to override the substantive commercial arrangement. As Miller was not an employee, the arbitrator lacked jurisdiction to determine her unfair dismissal claim. The late filing of the review application was...

Citation
[2023] ZALCJHB 22
Parties
Applicant: Hamper Sales (Pty) Ltd; Applicant: Tycoon’s Tea and Coffee (Pty) Ltd; Respondent: L.D. Mahlahangu (N. O.); Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Kim Miller
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
20 February 2023
Case Number
JR 2982/19
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application granted; arbitration award set aside for lack of jurisdiction.
Judges
Lagrange
Legal Topics
Employee Vs Independent Contractor, Jurisdiction of Arbitrator, Unfair Dismissal, Section 200a Lra, Condonation of Late Filing
Labour Law Employee Vs Independent Contractor Jurisdiction of Arbitrator Unfair Dismissal Section 200a Lra Condonation of Late Filing

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Parties

Hamper Sales (Pty) Ltd

Applicant

Tycoon’s Tea and Coffee (Pty) Ltd

Applicant

L.D. Mahlahangu (N. O.)

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Kim Miller

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether Ms Miller was an employee or an independent contractor for the purposes of the Labour Relations Act.
  2. 2 Whether the arbitrator had jurisdiction to determine an unfair dismissal claim based on Miller's employment status.
  3. 3 Whether the late filing of the review application should be condoned.

Ratio Decidendi

The court found that Miller was engaged as an independent contractor, not an employee. The evidence showed she was paid for results, had autonomy over her work, was not subject to the firms' control regarding hours or methods, and invoiced for her services. Her registration as a micro business with SARS and the absence of statutory employment deductions further supported this. The arbitrator's reliance on factors such as attendance at meetings and provision of equipment was insufficient to override the substantive commercial arrangement. As Miller was not an employee, the arbitrator lacked jurisdiction to determine her unfair dismissal claim. The late filing of the review application was...

Court Disposition

Review application granted; arbitration award set aside for lack of jurisdiction.

Orders

  • The late filing of the review application is condoned.
  • The arbitration award dated 12 November 2019 under case number GAEK 2613-19 is reviewed and set aside and substituted with a finding that the Applicant in the award (the Third Respondent) was not an employee of the Respondents in the award (the Applicants) and accordingly the arbitrator (the First Respondent) lacked...