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South Africa Judgment

Labour Court Johannesburg

Mngomezulu and Another v Nestle South Africa (Pty) Ltd (JS235/17) [2017] ZALCJHB 441 (24 November 2017)

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Source document

01

Holding and result

The court found that the applicants were dismissed for exercising their statutory rights under section 198 of the Labour Relations Act, specifically seeking a determination of their status as permanent employees and participating in related proceedings. Such dismissals are automatically unfair in terms of sections 187(d)(i) and (ii) of the Act. As there was no evidence presented to justify denying reinstatement, the court ordered that the applicants be reinstated with retrospective effect to the date of their dismissal.

Court disposition

Applicants' dismissals were automatically unfair; reinstatement ordered.

Orders

  • The applicants' dismissals at the end of June 2016 were automatically unfair.
  • The respondent must reinstate the applicants with retrospective effect to the date of their dismissal within 5 days of the applicants tendering their services and provided that a copy of this order has been served on the respondent on or before the date they tender their services.
  • The applicants must tender their services within 10 days of receipt of this order.
  • No order as to costs.

02

Material facts

Parties

Sipho Amos Mngomezulu

Applicant

Phillip Mabuyi

Applicant

Nestle South Africa (Pty) Ltd

Respondent

03

Procedural history

  1. Posture

    Default Judgment / Trial

04

Questions and positions

Legal issues

Party arguments

Applicant
The applicants claimed they were dismissed for exercising their rights to seek a determination under section 198 of the Labour Relations Act, declaring them permanent employees and for participating in proceedings under that section. They argued that such dismissals are automatically unfair under sections 187(d)(i) and (ii) of the Labour Relations Act.
Respondent
The respondent did not appear and did not present any argument.

05

Court’s reasoning

  1. 01

    Labour Relations Act 66 of 1995, sections 187(d)(i) and (ii)

    A dismissal is automatically unfair if the reason for dismissal is the employee's exercise of rights under section 198 of the Labour Relations Act.

  2. 02

    Labour Relations Act 66 of 1995

    Reinstatement is the appropriate remedy where there is no evidence justifying refusal of reinstatement after an automatically unfair dismissal.

06

Ratio, limits and disposition

Ratio decidendi

The court found that the applicants were dismissed for exercising their statutory rights under section 198 of the Labour Relations Act, specifically seeking a determination of their status as permanent employees and participating in related proceedings. Such dismissals are automatically unfair in terms of sections 187(d)(i) and (ii) of the Act. As there was no evidence presented to justify denying reinstatement, the court ordered that the applicants be reinstated with retrospective effect to the date of their dismissal.

Court disposition

Applicants' dismissals were automatically unfair; reinstatement ordered.

  • The applicants' dismissals at the end of June 2016 were automatically unfair.
  • The respondent must reinstate the applicants with retrospective effect to the date of their dismissal within 5 days of the applicants tendering their services and provided that a copy of this order has been served on the respondent on or before the date they tender their services.
  • The applicants must tender their services within 10 days of receipt of this order.
  • No order as to costs.

Source and reliance status

Labour Court Johannesburg

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Judgment reading view

Judgment text

The complete available source text.

Source document

Labour Court Johannesburg

Judgment

[2017] ZALCJHB 441

Not reportable

THE LABOUR COURT OF SOUTH AFRICA,

HELD

AT JOHANNESBURG

Case No: JS235/17

In the matter between:

SIPHO

AMOS MNGOMEZULU First Applicant

PHILLIP

MABUYI Second Applicant and NESTLE SOUTH AFRICA (PTY) LTD Respondent

Heard: 21 November 2017

Delivered: 24 November 2017

Default judgment

LAGRANGE J

[1] Having considered the contents of the statement of claim as confirmed on affidavit by the applicants, I am satisfied that the applicants were unfairly dismissed for exercising their rights to seek a determination under s 198 of the Labour Relations Act, 66 of 1995 declaring them to be permanent employees and for participating in proceedings under that section. Accordingly their dismissals were automatically unfair in terms of sections 187(d) (i) and (ii) of the Labour Relations Act 66 of 1995.

[2] There being no evidence why they ought not to be reinstated, reinstatement appears to be the appropriate relief.

Order

[1] The applicants dismissals at the end of June 2016 were automatically unfair and the respondent must reinstate the applicants with retrospective effect to the date of their dismissal within 5 days of the applicants tendering their services to the respondent and provided that a copy of this order has been served on the respondent on or before the date they tender their services.

[2] The applicants must tender their services within 10 days of receipt of this order.

[3] No order is made as to costs.

_______

Lagrange J

Judge of the Labour Court of South Africa

APPEARANCES

APPLICANTS:

In person

RESPONDENT:

No appearance

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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, sections 198, 187(d)(i), 187(d)(ii)

Legislation

Legislation referenced in the available case record.

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