Kukard v GKD Delkor (Pty) Ltd (JA52/2013) [2014] ZALAC 52; [2015] 1 BLLR 63; (2015) 36 ILJ 640 (LAC) (7 October 2014) per Kathree-Setiloane AJA [Musi JA and Murphy AJA concurring]

LAC summary:

Appeal allowed and Labour Court’s judgment set aside and review application refused.  Proof of dismissal- parties entering into a settlement agreement to re-employ employee on same terms and conditions prior to employee’s resignation- employer re-employing employee on different terms- employee refusing new terms of employment.  Employee referring unfair dismissal- employer contending the existence of an employment relationship and that no dismissal took place.  Commissioner finding dismissal procedurally unfair.

Labour Court finding that no dismissal took place and CCMA not having jurisdiction.  Arbitration award set aside.  Appeal- evidence showing existence of employment relationship and that employer re-employing employee on different terms contrary to the settlement agreement.  Commissioner’s decision reasonable – Compensation: Kemp judgment distinguished- reviewing an order for compensation- evaluation of the facts before the commissioner based on fairness to both parties- evidence showing that reinstatement impractical- commissioner’s compensation order correct.

[1] This is an appeal, with leave of this Court, against the judgment of the Labour Court (Vatalides AJ) in which it reviewed and set aside an arbitration award of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) and substituted it with an award that the appellant had failed to prove a dismissal, and consequently the CCMA lacked jurisdiction to determine the appellant’s unfair dismissal dispute.  The Labour Court ordered the appellant to pay the costs.