Richmond Local Municipality v Mkhize and Others (D 128/19) [2021] ZALCD 9 (16 July 2021)

Richmond Local Municipality v Mkhize and Others (D 128/19) [2021] ZALCD 9 (16 July 2021)

The court found that the bargaining council lacked jurisdiction to adjudicate the dismissal and section 198B disputes because the respondent's employment had not ended at the time of referral and the council cannot adjudicate automatically unfair dismissal claims. The respondent was employed on a fixed-term contract funded by the EPWP Programme, which falls within the statutory exceptions to permanent employment after three months. The arbitrator committed material errors of law and fact by failing to address jurisdiction and by awarding benefits without a separate unfair labour practice claim. The award was reviewed and set aside, and the referral was dismissed.

Citation
[2021] ZALCD 9
Parties
Applicant: Richmond Local Municipality; Respondent: Nomathamsanqa Mkhize; Respondent: SALGBC; Respondent: A Sewpersad N.O.
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
16 July 2021
Case Number
D 128/19
Procedural Posture
Review Application / Judgment
Outcome
The review application was granted, the arbitration award was reviewed and set aside, and the referral of the first respondent was dismissed.
Judges
Whitcher
Legal Topics
Fixed Term Contracts, Section 198b Lra, Jurisdiction of Bargaining Council, Automatic Unfair Dismissal, Epwp Funding, Condonation for Late Filing
Labour Law Fixed Term Contracts Section 198b Lra Jurisdiction of Bargaining Council Automatic Unfair Dismissal Epwp Funding Condonation for Late Filing

Case Brief

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Parties

Richmond Local Municipality

Applicant

Nomathamsanqa Mkhize

Respondent

SALGBC

Respondent

A Sewpersad N.O.

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the bargaining council had jurisdiction to adjudicate the dismissal and section 198B dispute.
  2. 2 Whether the respondent was deemed a permanent employee under section 198B of the LRA.
  3. 3 Whether the respondent's dismissal was automatically unfair due to pregnancy.

Ratio Decidendi

The court found that the bargaining council lacked jurisdiction to adjudicate the dismissal and section 198B disputes because the respondent's employment had not ended at the time of referral and the council cannot adjudicate automatically unfair dismissal claims. The respondent was employed on a fixed-term contract funded by the EPWP Programme, which falls within the statutory exceptions to permanent employment after three months. The arbitrator committed material errors of law and fact by failing to address jurisdiction and by awarding benefits without a separate unfair labour practice claim. The award was reviewed and set aside, and the referral was dismissed.

Court Disposition

The review application was granted, the arbitration award was reviewed and set aside, and the referral of the first respondent was dismissed.

Orders

  • The late filing of the review application is condoned.
  • The arbitration award dated 30 August 2018 and varied on 30 November 2018 under case number KPD051801 is reviewed and set aside and substituted with an order that the referral of the first respondent is dismissed.