CCMA Found to Lack Jurisdiction, Award Reviewed

February 2025

A security company employee whose fixed–term contract was not renewed referred a dispute to the CCMA and received an unfair dismissal award, which prompted the company to request that the Labour Court review the award. The Court found that no dismissal had occurred and that the arbitrator had ambushed the employer with inappropriate and unfair requirements, resulting in the award being reviewed and set aside.

Blue Hawk Tactical (Pty) Ltd v Commissioner Byrne NO and Others (JR 1262/2022) [2023] ZALCJHB 83 (22 March 2023)

Summary

An employee, who had been subjected to a disciplinary hearing after allegations of misconduct, was informed in writing that his fixed–term contract would be expiring soon, and that the company would not be renewing his contract.

He referred a claim of unfair dismissal to the CCMA, where the arbitrator found that he had been unfairly dismissed and ordered that he receive compensation.

The first point of review for the Labour Court was that the employee was never dismissed and, as such, the CCMA had no jurisdiction in the matter. The second point of review was that the arbitrator ambushed the employer by tasking them, without any prior warning, with justifying a completely separate issue. He required the employer to provide a reason for the employee being offered repeated fixed–term contracts, rather than permanent employment. Employers are not forbidden from keeping employees on fixed–term contracts for longer than three months, but they must be able to provide a good reason for doing so. However, this is not what the employer was called to the CCMA for, they were there because they had been accused of unfairly dismissing an employee, which they knew they had not done. They had no time or forewarning to prepare to address this claim, which was unfair and inappropriate on the part of the commissioner.

There is indeed a form of dismissal whereby an employee can reasonably expect their fixed–term contract to be renewed, but then it is unexpectedly not renewed, for no clear reason. However, in this case, the employee had not alleged that at all. If that had been his allegation, he would also have had to provide proof that he could reasonably expect to remain employed indefinitely.

In the absence of a dismissal, the CCMA can do nothing to resolve the matter and the arbitrator was amiss to attempt it.

The award issued by the commissioner was set aside and replaced with an order that the employee had not been dismissed, and the CCMA lacked jurisdiction to arbitrate his case. No order was made as to costs.

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