Van Zyl NO and Others v Commission for Conciliation, Mediation and Arbitration and Others (C212/2011) [2012] ZALCCT 53 (14 March 2012)

Van Zyl NO and Others v Commission for Conciliation, Mediation and Arbitration and Others (C212/2011) [2012] ZALCCT 53 (14 March 2012)

The court found that the applicants failed to establish any reviewable irregularity in the arbitrator's award. The arbitrator correctly accepted the uncontested evidence that the employee was dismissed by the CEO of CPI during provisional liquidation, without compliance with the consultation requirements of section 38(5) of the Insolvency Act. The employment contract was not terminated by operation of law but only suspended, and the employer acted outside the statutory framework by dismissing the employee. The arbitrator's conclusion that the dismissal was procedurally and substantively unfair was reasonable and supported by the evidence. The CCMA had jurisdiction to arbitrate the...

Citation
[2012] ZALCCT 53
Parties
Applicant: Christopher Peter Van Zyl N.O.; Applicant: Daniel Terblanche N.O.; Applicant: Kevin Titus N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Mr Derek America N.O.; Respondent: Andre van der Westhuizen
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
14 March 2012
Case Number
C212/2011
Procedural Posture
Review Application / Judgment on Opposed Review of Arbitration Award
Outcome
The application for review is dismissed.
Judges
Steenkamp
Legal Topics
Insolvency and Employment, Unfair Dismissal, Arbitration Review, Consultation Requirements, Liquidation Effect on Contracts
Labour Law Civil Procedure Insolvency and Employment Unfair Dismissal Arbitration Review Consultation Requirements Liquidation Effect on Contracts

Case Brief

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Parties

Christopher Peter Van Zyl N.O.

Applicant

Daniel Terblanche N.O.

Applicant

Kevin Titus N.O.

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Mr Derek America N.O.

Respondent

Andre van der Westhuizen

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misconstrued the legal effect of provisional liquidation on employment contracts.
  2. 2 Whether the dismissal of the employee was procedurally and substantively unfair.
  3. 3 Whether the consultation requirements under section 38 of the Insolvency Act were complied with.

Ratio Decidendi

The court found that the applicants failed to establish any reviewable irregularity in the arbitrator's award. The arbitrator correctly accepted the uncontested evidence that the employee was dismissed by the CEO of CPI during provisional liquidation, without compliance with the consultation requirements of section 38(5) of the Insolvency Act. The employment contract was not terminated by operation of law but only suspended, and the employer acted outside the statutory framework by dismissing the employee. The arbitrator's conclusion that the dismissal was procedurally and substantively unfair was reasonable and supported by the evidence. The CCMA had jurisdiction to arbitrate the...

Court Disposition

The application for review is dismissed.

Orders

  • The application for review is dismissed.
  • No order as to costs.