Nicholl v Du Plessis N.O and Others (PA6/12) [2014] ZALAC 110 (5 August 2014)

Nicholl v Du Plessis N.O and Others (PA6/12) [2014] ZALAC 110 (5 August 2014)

The court held that the appellant failed to discharge the onus of proving that a contract of employment was concluded with the third respondent. The evidence established that the appellant was only offered an opportunity to apply for a position, not actual employment. The recruitment process required formal application, interview, and approval by the Managing Director, none of which occurred. The adverse inference drawn from the appellant's failure to call her husband as a witness was justified. Without proof of an employment relationship, there could be no dismissal, and the commissioner and Labour Court correctly found that the CCMA lacked jurisdiction. The appeal was dismissed.

Citation
[2014] ZALAC 110
Parties
Appellant: Shanon Nicholl; Respondent: Botha du Plessis N.O; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: MTN Service Provider
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
5 August 2014
Case Number
PA6/12
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal dismissed with no order as to costs.
Judges
Tlaletsi, Musi, Mokgoatlheng
Legal Topics
Unfair Dismissal, Contract of Employment, Onus of Proof, Jurisdiction of Ccma
Labour Law Unfair Dismissal Contract of Employment Onus of Proof Jurisdiction of Ccma

Case Brief

Summary, issues, holding and outcome

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Parties

Shanon Nicholl

Appellant

Botha du Plessis N.O

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

MTN Service Provider

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the appellant was offered and accepted a contract of employment with the third respondent.
  2. 2 Whether the withdrawal of the alleged offer constituted a dismissal under the Labour Relations Act.
  3. 3 Whether the commissioner and Labour Court correctly found that no employment relationship existed and thus no dismissal occurred.

Ratio Decidendi

The court held that the appellant failed to discharge the onus of proving that a contract of employment was concluded with the third respondent. The evidence established that the appellant was only offered an opportunity to apply for a position, not actual employment. The recruitment process required formal application, interview, and approval by the Managing Director, none of which occurred. The adverse inference drawn from the appellant's failure to call her husband as a witness was justified. Without proof of an employment relationship, there could be no dismissal, and the commissioner and Labour Court correctly found that the CCMA lacked jurisdiction. The appeal was dismissed.

Court Disposition

Appeal dismissed with no order as to costs.

Orders

  • The appeal is dismissed.
  • There is no order as to costs.