Mwelase and Others v Enforce Security Group and Others (D358/12) [2015] ZALCD 46 (31 July 2015)

Mwelase and Others v Enforce Security Group and Others (D358/12) [2015] ZALCD 46 (31 July 2015)

The court found that the automatic termination clause in the applicants' contracts of employment was invalid as it unlawfully excluded the statutory protections against unfair dismissal provided by the Labour Relations Act and the Constitution. The public interest in protecting vulnerable employees, such as security officers, precludes the waiver of such rights. The third respondent committed a material error of law by failing to apply the relevant provisions of the LRA and by finding that the termination was not a dismissal. The termination constituted a dismissal for purposes of the LRA, and the dismissal was substantively and procedurally unfair. Compensation and severance pay are...

Citation
[2015] ZALCD 46
Parties
Applicant: Mwelase Fikile and 46 Others; Respondent: Enforce Security Group; Respondent: Commission for Conciliation, Mediation and Arbitration (CCMA); Respondent: Commissioner G Gertenbach
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
31 July 2015
Case Number
D358/12
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
Application to review and set aside the arbitration award is granted. The termination constituted a dismissal, which was substantively and procedurally unfair. Compensation and severance pay awarded.
Judges
Cele
Legal Topics
Automatic Termination Clauses, Unfair Dismissal, Severance Pay, Section 189 Consultation, Waiver of Statutory Rights
Labour Law Automatic Termination Clauses Unfair Dismissal Severance Pay Section 189 Consultation Waiver of Statutory Rights

Case Brief

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Parties

Mwelase Fikile and 46 Others

Applicant

Enforce Security Group

Respondent

Commission for Conciliation, Mediation and Arbitration (CCMA)

Respondent

Commissioner G Gertenbach

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the automatic termination clause in the applicants' contracts of employment is valid under the Labour Relations Act.
  2. 2 Whether the termination of employment constituted a dismissal for purposes of the LRA.
  3. 3 Whether the dismissal was substantively and procedurally unfair.

Ratio Decidendi

The court found that the automatic termination clause in the applicants' contracts of employment was invalid as it unlawfully excluded the statutory protections against unfair dismissal provided by the Labour Relations Act and the Constitution. The public interest in protecting vulnerable employees, such as security officers, precludes the waiver of such rights. The third respondent committed a material error of law by failing to apply the relevant provisions of the LRA and by finding that the termination was not a dismissal. The termination constituted a dismissal for purposes of the LRA, and the dismissal was substantively and procedurally unfair. Compensation and severance pay are...

Court Disposition

Application to review and set aside the arbitration award is granted. The termination constituted a dismissal, which was substantively and procedurally unfair. Compensation and severance pay awarded.

Orders

  • The arbitration award of the third respondent is reviewed and set aside. The termination of the applicants' employment constituted a dismissal for the purposes of the LRA.
  • The dismissal of each applicant by the first respondent was substantively and procedurally unfair.