Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC); [2021] 6 BLLR 611 (LC) (25 March 2021)

Mkokeli v Bloemberg (JS 522/19) [2021] ZALCJHB 47; (2021) 42 ILJ 1224 (LC); [2021] 6 BLLR 611 (LC) (25 March 2021)

The court found that the applicant was dismissed for misconduct, not for exercising a right conferred by the LRA. Lodging an internal grievance does not constitute exercising a right under the LRA, and only the referral of an unfair labour practice dispute qualifies as such. However, the evidence did not support that the referral was the proximate cause of dismissal. The disciplinary charges and process were unrelated to the grievance or the CCMA referral, and the timing of the dismissal did not support a causal link. The Labour Court's jurisdiction is ousted by section 157(5) of the LRA for disputes that must be arbitrated, and section 158(2) does not confer jurisdiction in this...

Citation
[2021] ZALCJHB 47
Parties
Applicant: Mncedi Samuel Mkokeli; Respondent: Bloemberg L P (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
25 March 2021
Case Number
JS 522/19
Procedural Posture
Trial Judgment / Final Judgment After Hearing of Evidence and Submissions
Outcome
The applicant's claim of automatically unfair dismissal is dismissed. The alternative claim of unfair dismissal for reasons related to misconduct is dismissed for want of jurisdiction. No order as to costs.
Judges
GN Moshoana
Legal Topics
Automatically Unfair Dismissal, Jurisdiction of Labour Court, Unfair Labour Practice, Section 187 Lra, Section 191 Lra
Labour Law Civil Procedure Automatically Unfair Dismissal Jurisdiction of Labour Court Unfair Labour Practice Section 187 Lra Section 191 Lra

Case Brief

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Parties

Mncedi Samuel Mkokeli

Applicant

Bloemberg L P (Pty) Ltd

Respondent

Procedural Posture

Trial Judgment / Final Judgment After Hearing of Evidence and Submissions

Legal Issues

  1. 1 Whether the applicant's dismissal was automatically unfair under section 187(1)(d) of the LRA.
  2. 2 Whether the Labour Court has jurisdiction to adjudicate the alternative claim of unfair dismissal for misconduct.
  3. 3 Whether lodging a grievance or referring an unfair labour practice dispute constitutes exercising a right conferred by the LRA.

Ratio Decidendi

The court found that the applicant was dismissed for misconduct, not for exercising a right conferred by the LRA. Lodging an internal grievance does not constitute exercising a right under the LRA, and only the referral of an unfair labour practice dispute qualifies as such. However, the evidence did not support that the referral was the proximate cause of dismissal. The disciplinary charges and process were unrelated to the grievance or the CCMA referral, and the timing of the dismissal did not support a causal link. The Labour Court's jurisdiction is ousted by section 157(5) of the LRA for disputes that must be arbitrated, and section 158(2) does not confer jurisdiction in this...

Court Disposition

The applicant's claim of automatically unfair dismissal is dismissed. The alternative claim of unfair dismissal for reasons related to misconduct is dismissed for want of jurisdiction. No order as to costs.

Orders

  • The dismissal of Mkokeli is not automatically unfair.
  • The claim for substantively and procedurally unfair dismissal is dismissed for want of jurisdiction.