Small Enterprise Development Agency v Commission for Concilliation, Mediation and Arbitration and Others (JR52/2021) [2024] ZALCJHB 11; (2024) 45 ILJ 920 (LC) (9 January 2024)

Small Enterprise Development Agency v Commission for Concilliation, Mediation and Arbitration and Others (JR52/2021) [2024] ZALCJHB 11; (2024) 45 ILJ 920 (LC) (9 January 2024)

The court found that the backdated performance agreement between Koka and Soga was invalid, as it did not memorialize a prior consensus but instead fabricated the timing of agreement. The Commissioner’s finding that the agreement was valid was unreasonable and susceptible to review. The CCMA had jurisdiction to arbitrate the unfair labour practice dispute, as the referral was timely and the real issue was the employer’s refusal to evaluate performance, not the validity of the agreement. The employer’s failure to ensure a valid agreement should not automatically prejudice the employee, and the matter must be remitted for determination of whether Koka is entitled to evaluation under the...

Citation
[2024] ZALCJHB 11
Parties
Applicant: Small Enterprise Development Agency; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner P Mbatsana, N.O.; Respondent: Kwathi Sophia Hazel Koka
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 January 2024
Case Number
JR52/2021
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is successful; the arbitration award is set aside and the matter is remitted for fresh arbitration before a different commissioner.
Judges
N P Voyi
Legal Topics
Unfair Labour Practice, Performance Evaluation, Backdating of Contracts, Jurisdiction of Ccma, Performance Management Policy
Labour Law Civil Procedure Unfair Labour Practice Performance Evaluation Backdating of Contracts Jurisdiction of Ccma Performance Management Policy

Case Brief

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Parties

Small Enterprise Development Agency

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner P Mbatsana, N.O.

Respondent

Kwathi Sophia Hazel Koka

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the backdated performance agreement for the 2018/19 financial year is valid.
  2. 2 Whether the applicant committed an unfair labour practice by refusing to evaluate the employee's performance for the 2018/19 financial year.
  3. 3 Whether the CCMA had jurisdiction to arbitrate the dispute given the timing and nature of the referral.

Ratio Decidendi

The court found that the backdated performance agreement between Koka and Soga was invalid, as it did not memorialize a prior consensus but instead fabricated the timing of agreement. The Commissioner’s finding that the agreement was valid was unreasonable and susceptible to review. The CCMA had jurisdiction to arbitrate the unfair labour practice dispute, as the referral was timely and the real issue was the employer’s refusal to evaluate performance, not the validity of the agreement. The employer’s failure to ensure a valid agreement should not automatically prejudice the employee, and the matter must be remitted for determination of whether Koka is entitled to evaluation under the...

Court Disposition

The review application is successful; the arbitration award is set aside and the matter is remitted for fresh arbitration before a different commissioner.

Orders

  • The arbitration award issued by the Second Respondent on 30 November 2020 under case number GATW905/2020 is reviewed and set aside.
  • The matter is remitted back to the First Respondent for arbitration de novo before a commissioner other than the Second Respondent on whether Koka is entitled to have her performance evaluated for the 2018/19 financial year in terms of SEDA’s performance management and development policy.