South Africa Case Law

Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others (CCT194/17)

Assign Services (Pty) Limited v National Union of Metalworkers of South Africa and Others (CCT194/17) [2018] ZACC 22; [2018] 9 BLLR 837 (CC); (2018) 39 ILJ 1911 (CC); 2018 (5) SA 323 (CC); 2018 (11) BCLR 1309 (CC) (26 July 2018)

Court

Constitutional Court

Case number

CCT194/17

Judges

Zondo DCJ, Cachalia AJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J, Madlanga J, Petse AJ, Theron J

The majority held that section 198A(3)(b) of the Labour Relations Act, when triggered, creates a sole employment relationship between the placed worker and the client for the purposes of the LRA. The deeming provision in section 198A(3)(b) operates to replace the TES as employer with the client, and the two deeming provisions in sections 198(2) and 198A(3)(b) cannot operate simultaneously. This interpretation is supported by the statutory language, context, and the constitutional purpose of protecting vulnerable workers. The majority found that the sole employer model promotes certainty, secu…

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• Labour Broking
• Section 198a Lra
• Sole Vs Dual Employer
• Employment Status
• Collective Bargaining
• Fair Labour Practices

Labour Group and Others v SA Dopper (Pty) Ltd (J 1251/13)

Labour Group and Others v SA Dopper (Pty) Ltd (J 1251/13) [2013] ZALCJHB 263; (2014) 35 ILJ 1011 (LC) (14 October 2013)

Court

Labour Court Johannesburg

Case number

J 1251/13

Judge

Molahlehi

The Labour Court does not have jurisdiction to entertain a dispute arising solely from the cancellation of a labour broking contract between the applicant and respondent, as the contract is a commercial agreement and not an employment contract. The applicant failed to plead jurisdiction in its founding affidavit, and the employees were not properly before the Court. Section 198 of the LRA governs the employment relationship between the labour broker and its employees, but does not extend Labour Court jurisdiction to commercial disputes between brokers and clients. The authorities cited confir…

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• Labour Broking
• Jurisdiction Of Labour Court
• Section 198 Lra
• Breach Of Commercial Contract

MDS NDT Consultants (Pty) Ltd v National Minister of Home Affairs and Another (47389/12)

MDS NDT Consultants (Pty) Ltd v National Minister of Home Affairs and Another (47389/12) [2013] ZAGPPHC 94 (10 April 2013)

Court

North Gauteng High Court, Pretoria

Case number

47389/12

Judge

Tlhapi V V

High Court dismissed an urgent bid for interim relief to keep a corporate permit effective pending review, finding no prima facie right and no basis to override separation of powers.

• Promotion Of Administrative Justice Act
• Corporate Permit
• Labour Broking
• Separation Of Powers
• Interim Interdict
• Administrative-law

Dyokhwe v De Kock NO and Others (C 418/11)

Dyokhwe v De Kock NO and Others (C 418/11) [2012] ZALCCT 25; [2012] 10 BLLR 1012 (LC); (2012) 33 ILJ 2401 (LC) (21 June 2012)

Court

Labour Court Cape Town

Case number

C 418/11

Judge

Steenkamp

The court found that Mondi never terminated the applicant's employment and that Adecco neither procured nor provided the applicant to Mondi as required by section 198 of the LRA. The arrangement was a sham, not a genuine TES relationship, and the applicant remained Mondi's employee. The Adecco contract was void due to misrepresentation, as the applicant was illiterate and the terms were not explained to him. The commissioner's reliance on advice from a CCMA official was irrelevant and unreasonable. Enforcing the Adecco contract would be contrary to public policy, given the applicant's vulnera…

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• Temporary Employment Service
• Unfair Dismissal
• Misrepresentation
• Public Policy
• Employment Relationship
• Labour Broking

Hlanzeka Cleaning Company (Pty) Ltd v Ngwane NO and Others (D615/08)

Hlanzeka Cleaning Company (Pty) Ltd v Ngwane NO and Others (D615/08) [2011] ZALCD 26 (29 June 2011)

Court

Labour Court Durban

Case number

D615/08

Judge

Pather A.J

The court found that the applicant's conduct in referring the employees to Adecco, without proper consultation or ensuring their continued employment, amounted to a dismissal. The applicant unilaterally changed the terms of engagement for casual employees who had a long-standing relationship with the company. The evidence showed that the employees were informed there was no more work for them, and the attempt to shift responsibility to Adecco failed, leaving them without prospects of employment. The dismissal was procedurally unfair as no proper process was followed. The commissioner’s findin…

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• Unfair Dismissal
• Employment Relationship
• Labour Broking
• Procedural Fairness
• Casual Employment
• Dominant Impression Test

Nape v Intcs Incorporate Solutions (Pty) Ltd (JR617/07)

Nape v Intcs Incorporate Solutions (Pty) Ltd (JR617/07) [2010] ZALCJHB 53 (10 March 2010)

Court

Labour Court Johannesburg

Case number

JR617/07

Judge

Boda

The Labour Court held that a labour broker’s retrenchment of an employee at a client’s insistence was substantively unfair, but procedurally fair, and awarded one month’s compensation.

• Unfair Dismissal
• Labour Broking
• Section 198 Lra
• Public Policy In Contracts
• Compensation For Unfair Dismissal
• Unfair-dismissal

Nape v INTCS Corporate Solutions (Pty) Ltd (JR 617/07)

Nape v INTCS Corporate Solutions (Pty) Ltd (JR 617/07) [2010] ZALC 33; (2010) 31 ILJ 2120 (LC) ; [2010] 8 BLLR 852 (LC) (10 March 2010)

Court

Labour Court

Case number

JR617/07

Judge

Boda

The court found that the applicant's dismissal was substantively unfair but procedurally fair. The labour broker, as employer, failed to resist the client's unlawful demand for removal, which was not justified by the applicant's conduct. The contractual clause allowing arbitrary removal was against public policy and unenforceable as it undermined the applicant's right not to be unfairly dismissed. The respondent should have protected the applicant's rights and sought recourse against the client. Although the applicant suffered no financial loss, nominal compensation was warranted to vindicate…

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• Unfair Dismissal
• Labour Broking
• Section 189 Retrenchment
• Public Policy In Contracts
• Compensation For Unfair Dismissal