Lechet v Red Alert (Pty) Ltd and Other (JR589/2010) [2011] ZALCJHB 155 (23 June 2011)

Lechet v Red Alert (Pty) Ltd and Other (JR589/2010) [2011] ZALCJHB 155 (23 June 2011)

The court held that the Commissioner erred in raising the arbitration clause mero motu when it was not pleaded by the parties and was not part of the pre-arbitration minute. The parties had elected to refer the dispute to the CCMA and were aware of the arbitration clause, yet neither raised it during the proceedings. The arbitration clause in the Service Agreement did not cover the constructive dismissal dispute under the Labour Relations Act. Section 147(6) of the LRA confers jurisdiction on the CCMA to hear disputes ordinarily referred to private arbitration, and the Commissioner failed to properly consider this provision. The Commissioner did not provide adequate reasons for exercising...

Citation
[2011] ZALCJHB 155
Parties
Applicant: Reizell Lechet; Respondent: Red Alert (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: E Tlhotlhalemaje
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
23 June 2011
Case Number
JR589/2010
Procedural Posture
Review Application / Judgment
Outcome
The Commissioner's ruling that the CCMA lacks jurisdiction to arbitrate the dispute and that the dispute should be referred to private arbitration is reviewed and set aside.
Judges
Cawe
Legal Topics
Constructive Dismissal, Jurisdiction of Ccma, Arbitration Clause, Review of Arbitration Award
Labour Law Civil Procedure Constructive Dismissal Jurisdiction of Ccma Arbitration Clause Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Reizell Lechet

Applicant

Red Alert (Pty) Ltd

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

E Tlhotlhalemaje

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the CCMA had jurisdiction to arbitrate a constructive dismissal dispute despite the existence of a private arbitration clause in the Service Agreement.
  2. 2 Whether the Commissioner was entitled to raise the arbitration clause mero motu when it was not pleaded by the parties.
  3. 3 Whether the arbitration clause in the Service Agreement covered the constructive dismissal dispute under the Labour Relations Act.

Ratio Decidendi

The court held that the Commissioner erred in raising the arbitration clause mero motu when it was not pleaded by the parties and was not part of the pre-arbitration minute. The parties had elected to refer the dispute to the CCMA and were aware of the arbitration clause, yet neither raised it during the proceedings. The arbitration clause in the Service Agreement did not cover the constructive dismissal dispute under the Labour Relations Act. Section 147(6) of the LRA confers jurisdiction on the CCMA to hear disputes ordinarily referred to private arbitration, and the Commissioner failed to properly consider this provision. The Commissioner did not provide adequate reasons for exercising...

Court Disposition

The Commissioner's ruling that the CCMA lacks jurisdiction to arbitrate the dispute and that the dispute should be referred to private arbitration is reviewed and set aside.

Orders

  • The Third Respondent's ruling that the CCMA lacks jurisdiction to arbitrate the dispute and that the dispute should be referred to private arbitration is reviewed and set aside.
  • There is no order as to costs.