Mkhize v Umhlanga Spar (D01/07) [2012] ZALCD 24 (16 April 2012)

Mkhize v Umhlanga Spar (D01/07) [2012] ZALCD 24 (16 April 2012)

The court found, on a balance of probabilities, that the respondent terminated the applicant's employment by handing him a letter on 20 January 2006, which communicated the end of the employment relationship. The evidence did not support the respondent's version that the applicant resigned or absconded. The respondent failed to prove the fairness of the dismissal, and the attempt to compel the applicant to sign a new contract with less favourable terms constituted an automatically unfair dismissal under section 187(1)(c) of the Labour Relations Act. The applicant's employment terms were protected by section 197(4) following the transfer of the business. Given the nature of the applicant's...

Citation
[2012] ZALCD 24
Parties
Applicant: Wiseman Bhekisisa Mkhize; Respondent: Umhlanga Spar
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
16 April 2012
Case Number
D01/07
Procedural Posture
Labour Unfair Dismissal / Trial Judgment
Outcome
The applicant's claim for automatically unfair dismissal succeeds. The respondent is ordered to reinstate the applicant with no loss of earnings or benefits, pay outstanding salary and interest, and bear the costs of the application.
Judges
Cele
Legal Topics
Automatically Unfair Dismissal, Section 197 Transfer, Section 187 1 C, Reinstatement, Protected Employment Rights, Contractual Variation
Labour Law Automatically Unfair Dismissal Section 197 Transfer Section 187 1 C Reinstatement Protected Employment Rights Contractual Variation

Case Brief

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Parties

Wiseman Bhekisisa Mkhize

Applicant

Umhlanga Spar

Respondent

Procedural Posture

Labour Unfair Dismissal / Trial Judgment

Legal Issues

  1. 1 Whether the applicant was dismissed by the respondent or resigned/absconded.
  2. 2 Whether the dismissal, if found, was automatically unfair under section 187(1)(c) of the Labour Relations Act.
  3. 3 Whether the applicant's employment terms were protected under section 197(4) of the Labour Relations Act.

Ratio Decidendi

The court found, on a balance of probabilities, that the respondent terminated the applicant's employment by handing him a letter on 20 January 2006, which communicated the end of the employment relationship. The evidence did not support the respondent's version that the applicant resigned or absconded. The respondent failed to prove the fairness of the dismissal, and the attempt to compel the applicant to sign a new contract with less favourable terms constituted an automatically unfair dismissal under section 187(1)(c) of the Labour Relations Act. The applicant's employment terms were protected by section 197(4) following the transfer of the business. Given the nature of the applicant's...

Court Disposition

The applicant's claim for automatically unfair dismissal succeeds. The respondent is ordered to reinstate the applicant with no loss of earnings or benefits, pay outstanding salary and interest, and bear the costs of the application.

Orders

  • The respondent is ordered to reinstate the applicant from the date of dismissal, 20 January 2006, with no loss of earnings and/or benefits.
  • Outstanding salary is to be paid to the applicant on 23 April 2012.