Mnguti v CCMA (QK Meats SA (Pty) Ltd t/a Dawn Farm) (JR 349/12) [2015] ZALCJHB 277 (28 August 2015) per Snyman AJ.
On review the Labour Court upheld the award after applying the ‘correct test’. The employee failed to prove that he was ‘dismissed’ and hence the CCMA did not have jurisdiction to determine the alleged unfair dismissal dispute.
LC summary:
#1CCMA arbitration proceedings – Review of proceedings, decisions and awards of commissioners – Test for review – Section 145 of LRA 1995 – Review concerning issue of jurisdiction – Test of rationally and reasonableness does not apply – award considered de novo on the basis of being right or wrong. #2Resignation – conduct constituting resignation – principles considered. #3Dismissal – determination of existence of dismissal – finding that no dismissal exists upheld. #4Review of award – conclusion of arbitrator correct – Arbitration award upheld – review dismissed.
Extracts [without footnotes]
[14] The issue whether or not a dismissal exists concerns the jurisdiction of the CCMA. If there is no dismissal, then the CCMA has no jurisdiction to entertain an unfair dismissal claim. Where a commissioner thus finds that no dismissal exists, that commissioner in essence determines that the CCMA does not have jurisdiction and the matter is then dismissed on that basis. Where such a determination by a commissioner is then challenged on review to the Labour Court, on what basis is such review then decided?
[15] In Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others the Court considered the review test postulated by Sidumo and Another v Rustenburg Platinum Mines Ltd and Others and said:
‘…. Nothing said in Sidumo means that the CCMA’s arbitration award can no longer be reviewed on the grounds, for example, that the CCMA had no jurisdiction in a matter or any of the other grounds specified in section 145 of the Act. If the CCMA had no jurisdiction in a matter, the question of the reasonableness of its decision would not arise …. ’ (emphasis added)
[16] In simple terms, where the issue to be considered on review is about the jurisdiction of the CCMA, the Labour Court is entitled to, if not obliged, to determine the issue of jurisdiction of its own accord. In doing so, the Labour Court determines the issue de novo in order to decide whether the determination by the commissioner on jurisdiction is right or wrong. In Zeuna-Starker Bop (Pty) Ltd v National Union of Metalworkers of SA, the Court held:
‘The commissioner could not finally decide whether he had jurisdiction because if he made a wrong decision, his decision could be reviewed by the Labour Court on objectively justiciable grounds….’ (emphasis added)
Our domestic worker was asked to vacate the room he was staying in on our premises and find a new place to stay. He was working for us just under a year. After this he did not report to work and filed an unfair dismissal claim at the CCMA. He has been awarded the case, however we never received the notice of arbitration In the first place. We are applying for rescission on the basis that we were not present because we were not notified of the hearing. More importantly, how do we go about proving no dismissal took place given that nothing was in writing.
All employees have a right not to be unfairly dismissed but they must prove that a dismissal did actually take place. The instruction to vacate the room may have been unreasonable but it is has to be proved to have been a ‘dismissal’ and it could be argued that there was a ‘resignation’. The issue of ‘constructive dismissal’ could also arise but once again the employee has to prove intolerable conduct on your part and an involuntary resignation. You need to apply to rescind the award and probably need to seek legal advice as it involves a complicated legal process.
Reported (2015) ILJ 3111; [2015] JOL 33770 (LC).