Workforce Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J2699/09) [2011] ZALCJHB 148; (2012) 33 ILJ 738 (LC) (22 September 2011)

Workforce Group (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J2699/09) [2011] ZALCJHB 148; (2012) 33 ILJ 738 (LC) (22 September 2011)

The court held that the CCMA's jurisdictional ruling is subject to objective review by the Labour Court, not merely a test of reasonableness. On the facts, Malkin was fully integrated into the applicant's organisation, worked regular office hours, was under supervision, and was economically dependent on the applicant. The evidence established that he was an employee as defined by section 213 of the LRA, regardless of the absence of a formal employment contract or the issuance of invoices. The substance of the relationship, not its contractual form, was decisive. The matter was remitted to the CCMA for continuation of the arbitration proceedings.

Citation
[2011] ZALCJHB 148
Parties
Applicant: Workforce Group (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner F van der Merwe N.O; Respondent: Johnathan Malkin
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 September 2011
Case Number
J2699/09
Procedural Posture
Review Application / Judgment on Review of CCMA Jurisdictional Ruling
Outcome
The third respondent was found to be an employee of the applicant. The matter was remitted to the CCMA for continuation of arbitration. No order as to costs.
Judges
A Van Niekerk
Legal Topics
Employee Definition, Jurisdiction of Ccma, Unfair Dismissal, Economic Dependence
Labour Law Employee Definition Jurisdiction of Ccma Unfair Dismissal Economic Dependence

Case Brief

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Parties

Workforce Group (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner F van der Merwe N.O

Respondent

Johnathan Malkin

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Jurisdictional Ruling

Legal Issues

  1. 1 Whether the third respondent was an 'employee' as defined by section 213 of the Labour Relations Act.
  2. 2 Whether the CCMA had jurisdiction to entertain the unfair dismissal dispute.
  3. 3 Whether the court should intervene in incomplete arbitration proceedings.

Ratio Decidendi

The court held that the CCMA's jurisdictional ruling is subject to objective review by the Labour Court, not merely a test of reasonableness. On the facts, Malkin was fully integrated into the applicant's organisation, worked regular office hours, was under supervision, and was economically dependent on the applicant. The evidence established that he was an employee as defined by section 213 of the LRA, regardless of the absence of a formal employment contract or the issuance of invoices. The substance of the relationship, not its contractual form, was decisive. The matter was remitted to the CCMA for continuation of the arbitration proceedings.

Court Disposition

The third respondent was found to be an employee of the applicant. The matter was remitted to the CCMA for continuation of arbitration. No order as to costs.

Orders

  • The third respondent was an employee of the applicant.
  • The matter is remitted to the first respondent for continuation of the arbitration proceedings before the second respondent.