Wienand v Pharma Natura (Pty) Ltd (JR561/2011) [2012] ZALCJHB 72; (2013) 34 ILJ 1012 (LC) (12 July 2012)

Wienand v Pharma Natura (Pty) Ltd (JR561/2011) [2012] ZALCJHB 72; (2013) 34 ILJ 1012 (LC) (12 July 2012)

The court found that the commissioner erred in concluding that no employer and employee relationship existed. Objectively viewed, the applicant was appointed as financial manager, received a fixed monthly remuneration, was subject to supervision and control by the CEO, participated in executive committee meetings, and was economically dependent on the respondent. The fact that remuneration was paid through a close corporation did not negate the existence of an employment relationship, as the essential agreement on remuneration was present. Applying the three criteria from State Information Technology Agency v CCMA, the applicant was supervised, formed an integral part of the organisation,...

Citation
[2012] ZALCJHB 72
Parties
Applicant: Kenneth Wienand; Respondent: Pharma Natura (Pty) Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
12 July 2012
Case Number
JR561/2011
Procedural Posture
Review Application / Judgment on Review of Jurisdictional Ruling
Outcome
The jurisdictional ruling by the commissioner is reviewed and set aside. It is declared that an employer and employee relationship existed between the applicant and the respondent, and the third respondent has jurisdiction to arbitrate the alleged unfair dismissal dispute. Costs are awarded against the respondent.
Judges
G N Moshoana
Legal Topics
Jurisdictional Ruling, Employer Employee Relationship, Review Under Section 158 1 G, Remuneration Agreement, Section 200a Presumption, Unfair Dismissal
Labour Law Civil Procedure Jurisdictional Ruling Employer Employee Relationship Review Under Section 158 1 G Remuneration Agreement Section 200a Presumption Unfair Dismissal

Case Brief

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Parties

Kenneth Wienand

Applicant

Pharma Natura (Pty) Limited

Respondent

Procedural Posture

Review Application / Judgment on Review of Jurisdictional Ruling

Legal Issues

  1. 1 Whether an employer and employee relationship existed between the applicant and the respondent.
  2. 2 Whether the jurisdictional ruling by the commissioner was reviewable under section 158(1)(g) of the Labour Relations Act.
  3. 3 Whether payment through a close corporation negates the existence of an employment relationship.

Ratio Decidendi

The court found that the commissioner erred in concluding that no employer and employee relationship existed. Objectively viewed, the applicant was appointed as financial manager, received a fixed monthly remuneration, was subject to supervision and control by the CEO, participated in executive committee meetings, and was economically dependent on the respondent. The fact that remuneration was paid through a close corporation did not negate the existence of an employment relationship, as the essential agreement on remuneration was present. Applying the three criteria from State Information Technology Agency v CCMA, the applicant was supervised, formed an integral part of the organisation,...

Court Disposition

The jurisdictional ruling by the commissioner is reviewed and set aside. It is declared that an employer and employee relationship existed between the applicant and the respondent, and the third respondent has jurisdiction to arbitrate the alleged unfair dismissal dispute. Costs are awarded against the respondent.

Orders

  • The ruling issued by the second respondent is reviewed and set aside.
  • It is declared that there was an employer and employee relationship between the applicant and the first respondent.