Moyo v Execujet (J 2778/05) [2011] ZALCJHB 74; (2012) 33 ILJ 429 (LC) (30 August 2011)

Moyo v Execujet (J 2778/05) [2011] ZALCJHB 74; (2012) 33 ILJ 429 (LC) (30 August 2011)

The Labour Court found that the parties had entered into a binding arbitration agreement under section 10 of the Employment Equity Act and section 141 of the Labour Relations Act, which remained in force and could only be terminated by written consent of both parties. The applicant's claim for unfair discrimination was subject to this agreement and must be determined by arbitration before the CCMA. The condonation granted by Tlaletsi AJ was made in error, as no proper referral had been made at the time, and the subsequent direction by Molahlehi J did not constitute condonation for the late referral. The applicant did not waive his right to have the unfair discrimination claim determined...

Citation
[2011] ZALCJHB 74
Parties
Applicant: T I Moyo; Respondent: Execujet
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 August 2011
Case Number
J 2778/05
Procedural Posture
Civil Trial / Special Pleas and Jurisdictional Objections Before Trial
Outcome
Proceedings in the Labour Court are stayed and the dispute is referred to the CCMA for arbitration pursuant to the arbitration agreement.
Judges
Lagrange
Legal Topics
Employment Equity Act, Unfair Discrimination, Arbitration Agreement, Condonation, Jurisdiction, Waiver of Rights
Labour Law Employment Equity Act Unfair Discrimination Arbitration Agreement Condonation Jurisdiction Waiver of Rights

Case Brief

Summary, issues, holding and outcome

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Parties

T I Moyo

Applicant

Execujet

Respondent

Procedural Posture

Civil Trial / Special Pleas and Jurisdictional Objections Before Trial

Legal Issues

  1. 1 Whether the Labour Court has jurisdiction to adjudicate the applicant's unfair discrimination claim given the arbitration agreement concluded under section 10 of the Employment Equity Act and section 141 of the Labour Relations Act.
  2. 2 Whether condonation for the late referral of the dispute to the Labour Court was validly granted.
  3. 3 Whether the applicant waived his right to have the unfair discrimination claim determined by arbitration.

Ratio Decidendi

The Labour Court found that the parties had entered into a binding arbitration agreement under section 10 of the Employment Equity Act and section 141 of the Labour Relations Act, which remained in force and could only be terminated by written consent of both parties. The applicant's claim for unfair discrimination was subject to this agreement and must be determined by arbitration before the CCMA. The condonation granted by Tlaletsi AJ was made in error, as no proper referral had been made at the time, and the subsequent direction by Molahlehi J did not constitute condonation for the late referral. The applicant did not waive his right to have the unfair discrimination claim determined...

Court Disposition

Proceedings in the Labour Court are stayed and the dispute is referred to the CCMA for arbitration pursuant to the arbitration agreement.

Orders

  • The proceedings of the Labour Court in this matter are stayed and the dispute is referred to the CCMA for arbitration pursuant to the agreement concluded on 3 February 2005.
  • The pre-trial minute concluded by the parties shall serve as a pre-arbitration minute for the purposes of the arbitration.