Master Business Solutions v Van Der Merwe NO and Others (JR3037/12) [2015] ZALCJHB 77 (3 March 2015)

Master Business Solutions v Van Der Merwe NO and Others (JR3037/12) [2015] ZALCJHB 77 (3 March 2015)

The Court found that the evidence before the arbitrator did not demonstrate that a dismissal had occurred. The Third Respondent failed to discharge the burden of proof required to establish that he had been dismissed by the Applicant. The relationship between the parties deteriorated gradually, with no clear act of dismissal by the Applicant. The arbitrator erred in assuming a dismissal had occurred without factual basis and failed to distinguish between termination of placement and termination of employment. Consequently, the CCMA lacked jurisdiction to entertain the referral, and the arbitration award was reviewed and set aside. The referral was dismissed for want of jurisdiction.

Citation
[2015] ZALCJHB 77
Parties
Applicant: Master Business Solutions; Respondent: Francois Van Der Merwe N.O.; Respondent: Dispute Resolution Centre for the Metal and Engineering Industries Bargaining Counsel; Respondent: Alfred Makoti
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
3 March 2015
Case Number
JR3037/12
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside and referral dismissed for want of jurisdiction.
Judges
Malan
Legal Topics
Jurisdiction of Ccma, Burden of Proof, Unfair Dismissal, Review of Arbitration Award
Labour Law Civil Procedure Jurisdiction of Ccma Burden of Proof Unfair Dismissal Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Master Business Solutions

Applicant

Francois Van Der Merwe N.O.

Respondent

Dispute Resolution Centre for the Metal and Engineering Industries Bargaining Counsel

Respondent

Alfred Makoti

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Third Respondent was dismissed by the Applicant.
  2. 2 Whether the CCMA had jurisdiction to entertain the referral.
  3. 3 Whether the arbitration award was reviewable and should be set aside.

Ratio Decidendi

The Court found that the evidence before the arbitrator did not demonstrate that a dismissal had occurred. The Third Respondent failed to discharge the burden of proof required to establish that he had been dismissed by the Applicant. The relationship between the parties deteriorated gradually, with no clear act of dismissal by the Applicant. The arbitrator erred in assuming a dismissal had occurred without factual basis and failed to distinguish between termination of placement and termination of employment. Consequently, the CCMA lacked jurisdiction to entertain the referral, and the arbitration award was reviewed and set aside. The referral was dismissed for want of jurisdiction.

Court Disposition

Application for review granted; arbitration award set aside and referral dismissed for want of jurisdiction.

Orders

  • The arbitration award issued by the First Respondent under case number MEGA 36274 dated 20 November 2012 is reviewed and set aside.
  • The award is substituted with: Third Respondent’s referral to the MEIBC is dismissed for want of jurisdiction.