Solomons v Phokela NO and Others (JR99/2021) [2021] ZALCJHB 192 (2 August 2021)

Solomons v Phokela NO and Others (JR99/2021) [2021] ZALCJHB 192 (2 August 2021)

The Labour Court held that a rescission application is not competent following a dismissal ruling under section 138(5)(a) of the LRA, as such a ruling is not an arbitration award or ruling but an exercise of statutory function. The CCMA commissioner lacked jurisdiction to entertain and refuse the rescission...

Source-derived case information.

Citation
[2021] ZALCJHB 192
Parties
Applicant: Denroy Leonard Solomons; Respondent: Dineo Phokela N.O; Respondent: The CCMA; Respondent: Food Lovers Market Kempton Park
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
2 August 2021
Case Number
JR99/2021
Procedural Posture
Review Application / Judgment on Review of Rescission Ruling
Outcome
The application to review and set aside the rescission ruling is dismissed. The dismissal ruling is declared invalid and ineffectual in law. The CCMA is directed to enroll the dispute for arbitration. No order as to costs.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Rescission Application, Arbitration Proceedings, Jurisdiction of Ccma, Procedural Rationality
Labour Law Civil Procedure Unfair Dismissal Rescission Application Arbitration Proceedings Jurisdiction of Ccma Procedural Rationality

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Parties

Denroy Leonard Solomons

Applicant

Dineo Phokela N.O

Respondent

The CCMA

Respondent

Food Lovers Market Kempton Park

Respondent

Procedural Posture

Review Application / Judgment on Review of Rescission Ruling

Legal Issues

  1. 1 Whether a rescission application is competent following a dismissal ruling under section 138(5)(a) of the LRA.
  2. 2 Whether the CCMA commissioner had jurisdiction to entertain and refuse the rescission application.
  3. 3 What is the legal effect of a dismissal ruling issued under section 138(5)(a) of the LRA.

Ratio Decidendi

The Labour Court held that a rescission application is not competent following a dismissal ruling under section 138(5)(a) of the LRA, as such a ruling is not an arbitration award or ruling but an exercise of statutory function. The CCMA commissioner lacked jurisdiction to entertain and refuse the rescission application, rendering the rescission ruling a nullity. The review application was dismissed as moot, but the Court declared the original dismissal ruling irrational, invalid, and ineffective in law due to procedural irrationality—specifically, the failure to consider the parties' agreement to postpone the arbitration for valid health reasons. The CCMA was directed to enroll the...

Court Disposition

The application to review and set aside the rescission ruling is dismissed. The dismissal ruling is declared invalid and ineffectual in law. The CCMA is directed to enroll the dispute for arbitration. No order as to costs.

Orders

  • The application to review the rescission ruling dated 3 December 2020 issued by Dineo Phokela is refused.
  • It is declared that dismissal of the matter effected by Commissioner Tiyani Maluleke recorded in a written ruling dated 24 August 2020 under case number GAJB6868-20 is irrational, invalid and ineffective in law.