Senekal v Ancro Building Projects CC (JS 1090/13) [2015] ZALCJHB 132 (15 April 2015) per Tlhotlhalemaje AJ.

The services of the applicant were terminated some 19 days after starting work and after informing her employer that she was pregnant.  The employer provided evidence of various issues relating to poor performance during a trial period of three months and problems with her past work record.

The applicant discharged the onus of proving that she was an employee and that she had been dismissed.  But the Labour Court was not persuaded that she had proved that her dismissal was automatically unfair. 

So the Labour Court did not have jurisdiction to decide whether the employer could prove that her dismissal was valid and fair because the reason for dismissal was related to poor performance or her incapability.

If the employer had based the reason on its ‘operational requirements’ it seems that the Labour Court would have had the necessary jurisdiction and power to finally resolve the dispute.