NUMSA v Assign Services and Others (JA96/15) [2017] ZALAC 44; (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC) (10 July 2017)

NUMSA v Assign Services and Others (JA96/15) [2017] ZALAC 44; (2017) 38 ILJ 1978 (LAC); [2017] 10 BLLR 1008 (LAC) (10 July 2017)

The Labour Appeal Court held that section 198A(3)(b) of the Labour Relations Act, as amended, unambiguously supports the sole employer interpretation. Once the three-month threshold is exceeded, the client becomes the sole employer of the placed worker for purposes of the LRA. The purpose of the deeming provision is to protect vulnerable workers and ensure their full integration into the client’s enterprise, not to create dual employment. The TES remains the employer only until the deeming provision is triggered; thereafter, the statutory employment relationship is exclusively between the client and the worker. The Labour Court misdirected itself by adopting the dual employment...

Citation
[2017] ZALAC 44
Parties
Appellant: NUMSA; Respondent: Assign Services (Pty) Ltd; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Commissioner A.C. Osman, NO; Respondent: Krost Shelving & Racking (Pty) Ltd; Amicus Curiae: Casual Workers Advice Office (CWAO); Amicus Curiae: Confederation of Associations in the Private Employment Sector (CAPES)
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
10 July 2017
Case Number
JA96/15
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Reviewing CCMA Award
Outcome
Appeal upheld; Labour Court’s judgment set aside; CCMA award reinstated.
Judges
Waglay, Tlaletsi, Phatshoane
Legal Topics
Temporary Employment Services, Deeming Provision, Sole Vs Dual Employment, Section 198a Interpretation, Vulnerable Worker Protection, Statutory Employment Relationship
Labour Law Temporary Employment Services Deeming Provision Sole Vs Dual Employment Section 198a Interpretation Vulnerable Worker Protection Statutory Employment Relationship

Case Brief

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Parties

NUMSA

Appellant

Assign Services (Pty) Ltd

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Commissioner A.C. Osman, NO

Respondent

Krost Shelving & Racking (Pty) Ltd

Respondent

Casual Workers Advice Office (CWAO)

Amicus Curiae

Confederation of Associations in the Private Employment Sector (CAPES)

Amicus Curiae

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Reviewing CCMA Award

Legal Issues

  1. 1 What is the correct interpretation of section 198A(3)(b)(i) of the Labour Relations Act regarding the employment status of workers placed by a Temporary Employment Service (TES) with a client after three months?
  2. 2 Does the triggering of section 198A(3)(b)(i) create a sole or dual employment relationship between the TES, the client, and the placed workers?
  3. 3 Is the Labour Court's setting aside of the CCMA award on the basis of material error of law justified?

Ratio Decidendi

The Labour Appeal Court held that section 198A(3)(b) of the Labour Relations Act, as amended, unambiguously supports the sole employer interpretation. Once the three-month threshold is exceeded, the client becomes the sole employer of the placed worker for purposes of the LRA. The purpose of the deeming provision is to protect vulnerable workers and ensure their full integration into the client’s enterprise, not to create dual employment. The TES remains the employer only until the deeming provision is triggered; thereafter, the statutory employment relationship is exclusively between the client and the worker. The Labour Court misdirected itself by adopting the dual employment...

Court Disposition

Appeal upheld; Labour Court’s judgment set aside; CCMA award reinstated.

Orders

  • The appeal succeeds and the order of the Labour Court is set aside and replaced with: 'The Review application is dismissed.'