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South Africa Judgment

Labour Court Johannesburg

Masemola v CGM Restaurant C (JS 431/12) [2013] ZALCJHB 68 (2 May 2013)

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Research organized from the available case record

Source document

01

Holding and result

The court found that the applicant was dismissed for operational requirements without the respondent following the procedures prescribed by section 189(1) of the Labour Relations Act. The respondent failed to oppose the claim or provide any evidence to challenge the applicant's version. In the absence of any contrary evidence, the court accepted the applicant's account and concluded that the dismissal was both procedurally and substantively unfair. The applicant was entitled to compensation equivalent to 12 months' remuneration and an additional amount equivalent to one week's salary for each completed year of service, with interest at the prescribed rate.

Court disposition

Default judgment granted in favour of the applicant. The dismissal was found to be both procedurally and substantively unfair.

Orders

  • The dismissal of the applicant is declared both procedurally and substantively unfair.
  • The respondent is ordered to compensate the applicant in an amount equivalent to 12 months' remuneration calculated on the monthly remuneration of R5,467.03 per month.
  • The respondent is ordered to pay the applicant R19,134.65, being an amount equivalent to one week's salary for each completed year of service.
  • The respondent is to pay interest at the prescribed rate of 15.5% a tempore mora.
  • The amounts referred to in this order shall be subject to tax and other statutory deductions.

02

Material facts

Parties

Mmusi Masemola

Applicant

CGM Restaurant CC

Respondent

Amounts and remedies

  • Monthly Remuneration: ZAR 5,467.03
  • Compensation for 12 Months: ZAR 65,604.36
  • Compensation for Completed Years of Service: ZAR 19,134.65
  • Interest Rate: ZAR 15.5

03

Procedural history

  1. Posture

    Default Judgment / Application for Default Judgment

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicant contended that he was dismissed for operational requirements without the respondent following the procedures set out in section 189(1) of the Labour Relations Act. He argued that the respondent claimed to be relocating and ceasing operations, but in fact continued to operate and had not relocated. The applicant further stated that the statement of claim was properly served and the respondent failed to oppose the claim within the prescribed period.
Respondent
The respondent did not file any notice of intention to oppose or any answering papers. No version or argument was presented by the respondent.

05

Court’s reasoning

  1. 01

    Labour Relations Act 66 of 1995

    An employer must follow both procedural and substantive fairness when dismissing an employee for operational requirements, as required by section 189(1) of the Labour Relations Act.

  2. 02

    Labour Court Rules

    Where a respondent fails to oppose a claim and the applicant's version is unchallenged, the court may accept the applicant's version as true and grant default judgment.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicant was dismissed for operational requirements without the respondent following the procedures prescribed by section 189(1) of the Labour Relations Act. The respondent failed to oppose the claim or provide any evidence to challenge the applicant's version. In the absence of any contrary evidence, the court accepted the applicant's account and concluded that the dismissal was both procedurally and substantively unfair. The applicant was entitled to compensation equivalent to 12 months' remuneration and an additional amount equivalent to one week's salary for each completed year of service, with interest at the prescribed rate.

Obiter and limits

  • The respondent's failure to participate in the proceedings left the applicant's version uncontested.
  • The amounts awarded are subject to tax and other statutory deductions.

Court disposition

Default judgment granted in favour of the applicant. The dismissal was found to be both procedurally and substantively unfair.

  • The dismissal of the applicant is declared both procedurally and substantively unfair.
  • The respondent is ordered to compensate the applicant in an amount equivalent to 12 months' remuneration calculated on the monthly remuneration of R5,467.03 per month.
  • The respondent is ordered to pay the applicant R19,134.65, being an amount equivalent to one week's salary for each completed year of service.
  • The respondent is to pay interest at the prescribed rate of 15.5% a tempore mora.
  • The amounts referred to in this order shall be subject to tax and other statutory deductions.

Source and reliance status

Labour Court Johannesburg

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Judgment text

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Source document

Labour Court Johannesburg

Judgment

[2013] ZALCJHB 68

3

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

CASE NO: JS 431/12

In the matter between -

MMUSI MASEMOLA .......................................................................................Applicant

and

CGM RESTAURANT CC ............................................................................Respondent

Date of judgment: 02 May 2013

Summary: Default judgment. Claim for unfair dismissal for operational reasons-Sec 189 of the Labour Relations Act.

_______________

JUDGMENT

MOLAHLEHI J

This is an application for a default judgment arising from a claim of an alleged unfair dismissal. The dismissal was according to the applicant based on operational requirements.

The applicant was prior to his dismissal employed by the respondent. According to him the respondent dismissed him for operational

reasons without following the provisions of section 189 (1) of the Labour Relations Act 66 of 1995. The dismissal was consequent to a letter addressed to the applicant dated 31 December 2011, in which the respondent informed the applicant that it will no longer trade and that it was relocating to some other place. According to the applicant the respondent has to date not relocated and continues operating.

The applicant contends in his affidavit in support of this application that the statement of claim in this matter was duly

served on the respondent on 24 May 2012. He further contends that, despite proper service of the statement of claim, the respondent has failed or neglected to file its notice of intention to oppose this claim. The time for filing the notice of opposition to this claim expired on 7 June 2012.

The only version before this Court concerning the alleged unfair dismissal is that of the applicant. In the absence of the challenge

to this version, there is no basis or reason to doubt its veracity. It follows that the respondent has failed to discharge its onus of showing that the dismissal was both procedurally and substantively fair.

In addition to being satisfied that the applicant has made out a case for a default judgment I am also satisfied that his dismissal

was both procedurally and substantively unfair.

The order

In the premises, the following order is made:

The dismissal of the applicant is both procedurally and substantively and unfair

The respondent is ordered to compensate the applicant in the amount equivalent to 12 months remuneration calculated on the monthly remuneration which was R5 467, 03 per month.

The respondent is ordered to pay the applicant the amount of R19 134, 65 being an amount equivalent to 1(one) weeks’ salary for each completed year of service.

The respondent is to pay interest at the prescribed rate of 15.5% a tempore mora.

The amounts referred to in this order shall be subject to tax and or other digital deductions.

E MOLAHLEHI

JUDGE OF THE LABOUR COURT OF

SOUTH AFRICA

Appearances: Matter considered in Chambers

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Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Labour Relations Act 66 of 1995

Legislation

Legislation referenced in the available case record.

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