On July 9 Worker duped into thinking employer was a labour broker was posted on this website with a link to Dyokwe v De Kock NO (Mondi Packaging SA (Pty) Ltd) unreported Labour Court case C 418/11.
Click on the link to read Natasha Marrian’s report Labour Court recognises vulnerable workers’ plight first published by Business Day in BDlive today. Thanks to Business Day for allowing these random extracts to be posted.
WHILE amendments to the laws on regulating labour brokers are far from finalisation, the Department of Labour said on Monday it was happy the courts were extending protection to vulnerable workers in labour broking arrangements.
A recent labour court ruling [Dyokwe v De Kock NO (Mondi Packaging SA (Pty) Ltd)] recognised the vulnerability of workers in temporary employment as the “weakest and most vulnerable” in the triangular relationship encompassing the worker, the labour broker and its client.
Regulating the labour broking environment has seen an emotional response from all quarters, with business and opposition parties warning that the changes would result in job losses, and the Congress of South African Trade Unions (Cosatu) calling for an outright ban of the practice.
But at the end of last month, the Labour Court in Cape Town handed down a judgment that showed an increasing willingness by the court to go beyond the “contractual relationship” between an employee and a labour broker.
The case involved an employee of the paper giant Mondi, who was hired by the company, but was told to sign a contract with a labour broker after two years, which he did. The employee, Khululekile Dyokwe, continued to work for Mondi for five and a half years and was then dismissed.
The Labour Court found that Mondi was the employer, and set aside the CCMA’s earlier decision. The CCMA was also ordered to arbitrate the dismissal of Mr Dyokwe between him and Mondi.
A CCMA spokeswoman said on Monday the matter was set down for arbitration next month.
Cosatu’s parliamentary officer, Prakashnee Govender, says the case goes to the “heart” of how labour brokers work. She says they create “legal fictitious employment” which places a “wedge” between the workers and their “true employer”, which in turn affects the workers’ ability to assert their rights and reduces the “quality” of their employment.
Department of Labour director for collective bargaining Thembinkosi Mkalipi, responding to the judgment on Monday, said it “confirmed” the department’s intentions in terms of the proposed labour amendments before Parliament and once the amendments took effect, workers would be able to rely on existing legislation for protection without taking the matter to court. He said the department would like the amendments to be finalised as soon as possible.