Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59; [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) (12 September 2019)

Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59; [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) (12 September 2019)

The Labour Appeal Court held that the commissioner acted unreasonably by applying section 200B of the LRA to determine the employer's identity when the parties had not invoked that section and there was no evidential basis for finding the empowerment scheme was a sham or intended to defeat the purposes of the LRA. The true dispute before the commissioner concerned the interpretation and application of section 198B regarding fixed-term contracts, which was resolved when Assist Bakery 115 CC conceded the appellants were its permanent employees. The commissioner arbitrated an extraneous issue by invoking section 200B, resulting in an unfair process and a reviewable irregularity. Section 200B...

Citation
[2019] ZALAC 59
Parties
Appellant: Lethabo Masoga; Appellant: Lebohang Maeleso; Respondent: Pick n Pay Retailers (Pty) Ltd; Respondent: Assist Bakery 115 CC; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner DJ Ngwenya N.O.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
12 September 2019
Case Number
JA14/2018
Procedural Posture
Labour Appeal / Appeal Against Labour Court Judgment Reviewing and Setting Aside Arbitration Award
Outcome
Appeal dismissed.
Judges
Waglay, Jappie, Coppin
Legal Topics
Fixed Term Contracts, Section 198b, Section 200b, Joint and Several Liability, Employment Relationship, Arbitration Review
Labour Law Fixed Term Contracts Section 198b Section 200b Joint and Several Liability Employment Relationship Arbitration Review

Case Brief

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Parties

Lethabo Masoga

Appellant

Lebohang Maeleso

Appellant

Pick n Pay Retailers (Pty) Ltd

Respondent

Assist Bakery 115 CC

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner DJ Ngwenya N.O.

Respondent

Procedural Posture

Labour Appeal / Appeal Against Labour Court Judgment Reviewing and Setting Aside Arbitration Award

Legal Issues

  1. 1 Whether the CCMA commissioner acted reasonably by applying section 200B of the Labour Relations Act to find Pick n Pay was a co-employer of the appellants.
  2. 2 Whether the commissioner was entitled to determine the employer's identity under section 200B when the parties had not invoked that section.
  3. 3 Whether the Labour Court correctly reviewed and set aside the arbitration award on the basis that the commissioner arbitrated the wrong dispute.

Ratio Decidendi

The Labour Appeal Court held that the commissioner acted unreasonably by applying section 200B of the LRA to determine the employer's identity when the parties had not invoked that section and there was no evidential basis for finding the empowerment scheme was a sham or intended to defeat the purposes of the LRA. The true dispute before the commissioner concerned the interpretation and application of section 198B regarding fixed-term contracts, which was resolved when Assist Bakery 115 CC conceded the appellants were its permanent employees. The commissioner arbitrated an extraneous issue by invoking section 200B, resulting in an unfair process and a reviewable irregularity. Section 200B...

Court Disposition

Appeal dismissed.

Orders

  • The appeal is dismissed.
  • No order is made in respect of the costs of the appeal.