Radebe v MEC: Health Eastern Cape and Others (D1066/2012) [2014] ZALCD 27; (2015) 36 ILJ 478 (LC) (5 June 2014)

Radebe v MEC: Health Eastern Cape and Others (D1066/2012) [2014] ZALCD 27; (2015) 36 ILJ 478 (LC) (5 June 2014)

The court found that the applicant was transferred by operation of law from the first respondent to the second respondent on 1 March 2006. No valid implementation protocol was concluded between the respondents, nor was the matter referred to the National Council of Provinces as required by the relevant legislation. At the time of the disciplinary proceedings and dismissal, the applicant was no longer employed by the first respondent. Therefore, the first respondent lacked authority to discipline and dismiss the applicant, rendering the dismissal a nullity. The arbitration award upholding the dismissal was reviewable and had to be set aside.

Citation
[2014] ZALCD 27
Parties
Applicant: T J Radebe; Respondent: MEC: Health Eastern Cape; Respondent: MEC: Health KwaZulu-Natal; Respondent: Public Health & Social Development Sectoral Bargaining Council; Respondent: Silas Ramushowana
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
5 June 2014
Case Number
D1066/2012
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed, set aside, and substituted with an order that the first respondent lacked authority to dismiss the applicant. Costs are awarded against the first respondent.
Judges
D H Gush
Legal Topics
Transfer of Employees, Jurisdiction of Employer, Unfair Dismissal, Implementation Protocol, Arbitration Review
Labour Law Civil Procedure Transfer of Employees Jurisdiction of Employer Unfair Dismissal Implementation Protocol Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

T J Radebe

Applicant

MEC: Health Eastern Cape

Respondent

MEC: Health KwaZulu-Natal

Respondent

Public Health & Social Development Sectoral Bargaining Council

Respondent

Silas Ramushowana

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the first respondent had authority to discipline and dismiss the applicant after her transfer to the second respondent.
  2. 2 Whether the applicant was an employee of the first respondent at the time of her dismissal.
  3. 3 Whether the arbitration award upholding the dismissal was reviewable and should be set aside.

Ratio Decidendi

The court found that the applicant was transferred by operation of law from the first respondent to the second respondent on 1 March 2006. No valid implementation protocol was concluded between the respondents, nor was the matter referred to the National Council of Provinces as required by the relevant legislation. At the time of the disciplinary proceedings and dismissal, the applicant was no longer employed by the first respondent. Therefore, the first respondent lacked authority to discipline and dismiss the applicant, rendering the dismissal a nullity. The arbitration award upholding the dismissal was reviewable and had to be set aside.

Court Disposition

The arbitration award is reviewed, set aside, and substituted with an order that the first respondent lacked authority to dismiss the applicant. Costs are awarded against the first respondent.

Orders

  • The arbitration award of the fourth respondent, issued under the auspices of the third respondent, dated 1 September 2012 is reviewed, set aside, corrected and substituted with an order that the first respondent lacked authority to dismiss the applicant as she was not an employee of the first respondent at the time...
  • The first respondent is ordered to pay the applicant's costs.