Masoga & Another v Pick n Pay Retailers (Pty) Ltd & Others (2019)

1. Case Title & Citation

Full Case Name: Masoga & Another v Pick n Pay Retailers (Pty) Ltd & Others (2019)

Official Citation: (2019) 40 ILJ 2707 (LAC)

2. Court Name & Bench

Court: Labour Appeal Court of South Africa

Bench Type: Appeal Bench (Three Judges)

Judges: Waglay JP, Jappie JA, Coppin JA

3. Date of Judgment

Date Delivered: 12 September 2019

4. Parties Involved

Appellants: Lethabo Masoga and Lebohang Maeleso — two employees who were dismissed from Pick n Pay.

Respondents: Pick n Pay Retailers (Pty) Ltd — employer and respondent in the appeal.

5. Facts of the Case

The appellants, Lethabo Masoga and Lebohang Maeleso, were initially employed by a labour broker and later absorbed into Pick n Pay’s workforce. They were dismissed following disciplinary action. The dispute was referred to the CCMA, where the commissioner found the dismissal substantively fair but procedurally unfair, awarding four months’ compensation.Pick n Pay took the arbitration award on review to the Labour Court, challenging both the finding of procedural unfairness and the commissioner’s assumption that Pick n Pay was the employer without proper legal inquiry.The Labour Court set aside the arbitration award entirely. Masoga and Maeleso then appealed to the Labour Appeal Court, challenging the Labour Court’s decision to overturn the CCMA ruling.

6. Issues Raised

• Whether the Labour Court erred in reviewing and setting aside the CCMA’s arbitration award.
• Whether the commissioner applied s22B of the LRA correctly in identifying Pick n Pay as the employer.
• Whether the dismissal was procedurally unfair despite being substantively fair.

7. Arguments of the Parties

Appellants (Masoga & Maeleso):

Claimed the commissioner correctly found Pick n Pay to be the employer under section 22B of the LRA, which allows joint and several liability in certain employment relationships. Argued that the dismissal process was procedurally unfair, justifying compensation.

Respondents (Pick n Pay):

Argued that section 22B was not applicable to determine the true employer, especially when the employment relationship had not been properly analysed. Emphasised that the appellants were given adequate opportunity to be heard during the disciplinary process.Argued that the commissioner’s decision was unreasonable, and the Labour Court correctly overturned it.

8. Judgment / Final Decision

• The Labour Appeal Court dismissed the appeal.
• It upheld the Labour Court’s decision to review and set aside the arbitration award.
• The court clarified that section 22B of the LRA is not a general tool to determine the identity of an employer; it only relates to specific circumstances involving joint and several liability.
• Found that procedural fairness was satisfied, and the appellants had no claim to compensation.
• No order as to costs was issued.

9. Legal Reasoning

• The LAC held that the CCMA commissioner acted unreasonably in relying on s22B of the LRA to determine that Pick n Pay was the employer without a detailed factual and legal inquiry.
• It reinforced that s22B creates limited liability mechanisms, primarily when a TES (labour broker) is involved, and cannot substitute for proper employer identification analysis.
• On procedural fairness, the court concluded that the appellants had ample opportunity to state their case and that fair procedure was followed.
• The court applied the Sidumo v Rustenburg Platinum Mines Ltd test, finding that the award was not one a reasonable commissioner could make.