Beya v GPSSBC (Dept of Justice & Constitutional Development) (JR1334/2012) [2014] ZALCJHB 467; (2015) 36 ILJ 1553 (27 November 2014) per S Snyman AJ.

On review the Labour Court applied the ‘correct test’ and upheld the award to the effect that the court interpreters had failed to prove they were employees.

LC summary:

  • #1Bargaining council arbitration proceedings – Review of proceedings, decisions and awards of arbitrators – Test for review – Review concerning issue of jurisdiction – Test of rationally and reasonableness does not apply – issue considered de novo.
  • #2Employment – consideration of nature of relationship – principles considered – assessment and determination of evidence – relationship not one of employment but independent service providers.
  • #3Employment – section 200A – principles considered and applied.
  • #4Dismissal – no dismissal as no employment relationship exists – finding of arbitrator that no employment relationship and thus no dismissal exists correct – award upheld.

Extract from judgment

The relevant test for review

[16]      The issue as to whether employment exists is a jurisdictional fact.  If there is no employment relationship between the two parties to the dispute, then the bargaining council would have no jurisdiction to determine the matter, and consequently there can be no dismissal in terms of the LRA.  This being the situation, the review test as enunciated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] does not apply.  In specifically considering the judgment in Sidumo, the Labour Appeal Court in Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others[2] said:

‘Nothing said in Sidumo, supra, means that the grounds of review in section 145 of the Act are obliterated.  The Constitutional Court said that they are suffused by reasonableness.  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.  Also, if the CCMA made a decision that exceeds its powers in the sense that it is ultra vires its powers, the reasonableness or otherwise of its decision cannot arise.’ (emphasis added)

The same reasoning would clearly also apply to the review of bargaining council arbitration awards.