Masoga and Another v Pick ‘n Pay Retailers (Pty) Ltd and Others

The appellants were employed by Assist Bakery 115 CC (AB) on fixed-term contracts as bakery assistants/pickers under an empowerment scheme operated by Pick ‘n Pay Retailers (Pty) Ltd (PnP). AB was a separate legal entity contracted to supply baking products to PnP and operated from PnP premises with support and oversight from PnP. The appellants referred a dispute to the CCMA claiming they should be deemed permanent employees of PnP, initially characterising the dispute as one under s 198A of the Labour Relations Act (LRA). During arbitration, AB conceded that the appellants were permanent employees of AB under s 198B(5). The commissioner nonetheless applied s 200B of the LRA and found PnP and AB to be co-employers, ordering parity of treatment with PnP employees. The Labour Court reviewed and set aside the award, holding that the commissioner determined the wrong dispute and misapplied s 200B. The appellants appealed to the Labour Appeal Court.

The appeal was dismissed. The Labour Court’s order reviewing and setting aside the arbitration award was upheld, including the substituted order that Pick ‘n Pay Retailers (Pty) Ltd was not an employer of the appellants. Each party was ordered to bear its own costs.

The case clarifies that s 200B of the LRA should not be used generally or opportunistically to determine the identity of an employer. It underscores the duty of CCMA commissioners to properly identify the true dispute referred for arbitration and to confine themselves to that dispute. The judgment reinforces procedural fairness in arbitration and limits the scope of co-employer findings absent clear invocation and evidence.