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Procedural Fairness in Dismissal Dismissal or resignation

Case Law & Legislation Review:

By Gary Watkins

# Wyeth SA (Pty) Ltd v Manqele & others

SUBJECT: Procedural Fairness in Dismissal Dismissal or resignation

Issues: Question whether Commission committed a gross irregularity by one Commissioner entertaining oral submissions on the matter prior to another Commissioner hearing the matter – Held that what followed the agreement rather than what preceded it was determinative – review must therefore fail – Second question is what constitutes an "employee" – person who has concluded contract of employment but has not yet commenced working an employee for purposes of the LRA

SUMMARY OF FACTS: The applicant raised two grounds for review. The first was that the Commissioner committed a gross irregularity in handing down a ruling in circumstances where another Commissioner had heard oral submissions from the parties’ respective representatives concerning the merits of the matter. Secondly, it was contended that the Commissioner committed a material error of law, alternatively, that he arrived at an unjustifiable conclusion in ruling that the first respondent was an "employee" of the applicant as defined by section 213 of the LRA.

The facts giving rise to this application were largely common cause. The candidate was offered a position by the company and they concluded a written contract of employment. Prior to the candidate commencing employment, the candidate was advised that the company was no longer prepared to employ him. This decision was directly related to the candidate’s purchase of a vehicle which did not conform to the contract. The candidate thereafter referred a dispute concerning an alleged unfair dismissal to the CCMA.

The company took the point that the candidate was not an employee as defined in section 213 of the LRA. An agreement was reached between the parties in terms of which the point in limine would be addressed by the filing of affidavits by both sides and to furnish the CCMA with "written submissions /arguments". The parties agreed that the Commissioner would thereafter make a ruling, and that they were in agreement that it would not be necessary to schedule a hearing for arguments and that the "ruling will be made on the affidavits and submissions."

Before the Commission’s hearing took place, the employee advised Senior Convening Commissioner that it intended to request the presiding commissioner’s recusal on the basis that he was alleged to have suggested at the conciliation proceedings that the CCMA would not have jurisdiction and that the dispute ought to be dealt with by the civil courts. Without any recourse to the company, the matter was thereafter allocated to another Commissioner. The second commissioner ruled that the candidate became an employee the moment an offer of employment was accepted.

SUMMARY OF JUDGEMENT: It was clear that the parties contemplated that the ruling would be made on the basis of the affidavits and submissions filed in terms of the agreement. There was nothing in the agreement between them to indicate that anything that may have been submitted to the first commissioner was to be of any consequence in the determination of the point in limine. Given the nature of the agreement between the parties, and their clear instruction that the point in limine was to be determined by what followed the agreement rather than what preceded it, there was no prejudice in this instance to the company by having an alternative Commissioner determine the matter in accordance with the terms of their agreement. The first ground for review therefore failed.

The interpretation of the definition of "employee" adopted in Whitehead v Woolworths (Pty) Ltd necessarily consigns a person, who is an employee party to a valid contract of employment to become effective on a later date, to a jurisprudential limbo unless and until that party physically renders services in terms of that contract. Persons in these circumstances may well have resigned from their existing employment and put themselves at considerable financial risk in the expectation of commencing work in terms of an agreement that is binding on both.

The court said that to deny the statutory protection of the security of employment conferred by the LRA in the interim between the conclusion of a valid contract of employment and the physical commencement of work seemed to be contrary to a purposive interpretation of the definition of "employee". A less literal approach to the statutory definition of employee is further justified by the extent of the constitutional protection of employment rights. Section 23(1) of the Constitution provides that "[e]veryone has the right to fair labour practices". The choice of the word "everyone" was deliberate; other constitutional labour rights extend to a "worker". In the court’s view, the term "employee" as defined in section 213 of the LRA and the requirement that a person "work" for another to be an employee extends to a person who is contracted to work.

It followed therefore that the second ground for review also failed. The court found that whether the first respondent was dismissed and the fairness of any dismissal was a matter to be determined by the CCMA, and this court was only to find whether, as a party to a valid and binding contract of employment, the candidate is an "employee" for the purposes of a claim under Chapter VIII of the LRA.

The application was dismissed with costs.


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Gary Watkins

Gary Watkins

Managing Director


C: +27 (0)82 416 7712

T: +27 (0)10 035 4185 (Office)

F: +27 (0)86 689 7862

Website: www.workinfo.com
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