Nabbie v Ferrari and Others (J 601/2021) [2022] ZALCJHB 322 (21 November 2022)

Nabbie v Ferrari and Others (J 601/2021) [2022] ZALCJHB 322 (21 November 2022)

The Labour Court lacks jurisdiction to entertain the applicant’s claim for unfair dismissal because the dispute was not referred to conciliation at the CCMA, nor was a certificate of non-resolution issued. Section 157(5) of the LRA precludes the court from adjudicating disputes that must be resolved by arbitration. The CCMA ruling referenced by the applicant pertained to a claim under section 73A of the BCEA, which does not cover unfair dismissal. The applicant’s attempt to recast the claim as a contractual breach was unsupported by the affidavits. The application was procedurally defective and demonstrated a lack of understanding of the statutory dispute resolution process. The court...

Citation
[2022] ZALCJHB 322
Parties
Applicant: Floyd Nabbie; Respondent: Artemo Claudio Ferrari; Respondent: Gap Compact Kitchens (Pty) Ltd; Respondent: Gap Kitchens (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
21 November 2022
Case Number
J 601/2021
Procedural Posture
Urgent Application / Application to Labour Court for Reinstatement or Compensation Following Alleged Unfair Dismissal
Outcome
Application struck from the roll for want of jurisdiction; costs reserved pending submissions by applicant’s attorney.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Jurisdiction of Labour Court, Conciliation Requirement, Costs in Labour Court
Labour Law Unfair Dismissal Jurisdiction of Labour Court Conciliation Requirement Costs in Labour Court

Case Brief

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Parties

Floyd Nabbie

Applicant

Artemo Claudio Ferrari

Respondent

Gap Compact Kitchens (Pty) Ltd

Respondent

Gap Kitchens (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application to Labour Court for Reinstatement or Compensation Following Alleged Unfair Dismissal

Legal Issues

  1. 1 Does the Labour Court have jurisdiction to adjudicate an unfair dismissal dispute that has not been referred to conciliation at the CCMA?
  2. 2 Can the applicant bypass the statutory dispute resolution process and seek relief directly from the Labour Court?
  3. 3 Is the applicant entitled to costs, and if so, against whom should such costs be awarded?

Ratio Decidendi

The Labour Court lacks jurisdiction to entertain the applicant’s claim for unfair dismissal because the dispute was not referred to conciliation at the CCMA, nor was a certificate of non-resolution issued. Section 157(5) of the LRA precludes the court from adjudicating disputes that must be resolved by arbitration. The CCMA ruling referenced by the applicant pertained to a claim under section 73A of the BCEA, which does not cover unfair dismissal. The applicant’s attempt to recast the claim as a contractual breach was unsupported by the affidavits. The application was procedurally defective and demonstrated a lack of understanding of the statutory dispute resolution process. The court...

Court Disposition

Application struck from the roll for want of jurisdiction; costs reserved pending submissions by applicant’s attorney.

Orders

  • The application is struck from the roll for want of jurisdiction.
  • The applicant’s attorney is afforded seven calendar days from the date of this order to file submissions on why an order for costs should not be made de bonis propriis, on the scale as between attorney and client.