Temo v Van Niekerk and Others (JR1772/13) [2015] ZALCJHB 160 (21 May 2015)

Temo v Van Niekerk and Others (JR1772/13) [2015] ZALCJHB 160 (21 May 2015)

The court found that the Commissioner misconceived the law by concluding that the applicant's refusal to sign a written employment contract justified dismissal. Section 29 of the BCEA does not require a signed written contract, and the employment relationship had existed for three years based on an oral agreement. The absence of a signed contract does not deprive an employee of rights under the Labour Relations Act, nor does it constitute a valid ground for dismissal under section 188 of the LRA. The Commissioner’s decision failed the standard of reasonableness and was therefore reviewable. Due to insufficient material to determine the matter, the award was set aside and the dispute...

Citation
[2015] ZALCJHB 160
Parties
Applicant: Temo K.A; Respondent: Van Niekerk M; Respondent: Commissioner for Conciliation Mediation and Arbitration; Respondent: Phalane T N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
21 May 2015
Case Number
JR1772/13
Procedural Posture
Review Application / Judgment on Review and Condonation
Outcome
Arbitration award reviewed and set aside; matter remitted to CCMA before a different Commissioner.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Oral Employment Contract, Basic Conditions of Employment Act, Arbitration Review, Procedural Fairness
Labour Law Unfair Dismissal Oral Employment Contract Basic Conditions of Employment Act Arbitration Review Procedural Fairness

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 3 Party arguments 2
Sign in to unlock

Parties

Temo K.A

Applicant

Van Niekerk M

Respondent

Commissioner for Conciliation Mediation and Arbitration

Respondent

Phalane T N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review and Condonation

Legal Issues

  1. 1 Whether the dismissal of the applicant for refusing to sign a written employment contract was substantively and procedurally fair.
  2. 2 Whether section 29 of the BCEA requires a written and signed employment contract.
  3. 3 Whether the Commissioner committed a gross irregularity in finding the dismissal fair.

Ratio Decidendi

The court found that the Commissioner misconceived the law by concluding that the applicant's refusal to sign a written employment contract justified dismissal. Section 29 of the BCEA does not require a signed written contract, and the employment relationship had existed for three years based on an oral agreement. The absence of a signed contract does not deprive an employee of rights under the Labour Relations Act, nor does it constitute a valid ground for dismissal under section 188 of the LRA. The Commissioner’s decision failed the standard of reasonableness and was therefore reviewable. Due to insufficient material to determine the matter, the award was set aside and the dispute...

Court Disposition

Arbitration award reviewed and set aside; matter remitted to CCMA before a different Commissioner.

Orders

  • The arbitration award made under case number GATW 3900-13 is reviewed and set aside.
  • The matter is remitted to the second respondent before a Commissioner other than the third respondent.