Long waited victory for Mrs Mxalaba

Velisiwe Mxalaba, a Community Healthcare Worker, was dismissed by Smart Purse (PTY ) LTD on 29 January 2018. She was told not to report back from work. She approached the Gauteng Community Healthcare Workers Forum for assistance. Her case was referred to the Mass Advice Day (MAD) at Khanya College. MAD advised her to lodge a complaint with the Commission For Conciliation Mediation and Arbitration ( CCMA) that she was unfairly dismissed substantively and procedurally, which means that there is no sound reason for her dismissal. Mxalaba did not enjoy her right to a hearing as none was held.

The matter was schedule for Conciliation and Arbitration on 15 March 2018, Conciliation remained unresolved and a certificate was issued to that effect and the matter was to proceed to Arbitration. In Arbitration proceedings Smart Purse was absent and the commissioner subsequently gave a Default award in favour of Mrs Mxalaba.

Immediately after the Default Award, Smart Purse made an Application to rescind the default Judgement saying that that they did not served with the Arbitration notice because the address used is not theirs.. They also said that Mrs Veliswa is not employment by Smart Purse. Nevertheless On 29 June 2018 the original judgement was repealed in favour of Smart Purse. . The matter had to start afresh.

The case was set down again for Arbitration hearing on 01 August 2018. During the proceeding Smart Purse argued that they did not know Mrs Mxalaba as a former employee as she did not appear on their records. Mxalalaba alluded that she has been working for smart purse even though she has not been receiving any wages for seven months. She has been submitting statistics and signing registers. The commissioner gave a ruling that the Department of Health ( Ekurhuleni) should be joined in the proceedings as it was not clear who is the employer of Mrs Mxalaba, the matter was postponed.

14 September 2018 another Arbitration hearing took place where a representative of the Health Department, one from Smart Purse and another from MAD were all present. In the proceedings Department of Health and Smart Purse denied all contractual links to Mxalaba. But Mrs Mxalalaba produced evidence showing she was indeed contracted to Smart Purse. She produced a set of correspondence of emails between Department and Smart Purse stating that she should be removed from the system together with other Cmmunity Healthcare Workers, as well asproduced work attendance registers. After hearing the new evidence the arbitrator postponed the matter to give Smart Purse and Department to consult further regarding the new evidence. The Arbitrator conceded that there is a link or employment relationship between the parties

Tables turned on 12 February 2019 for Mrs Mxalala, when Settlement Agreement was reached between Smart Purse and herself during Arbitration hearing, Smart Purse agreed to re-employ Mxalaba. This agreement was reached on basis that Smart Purse admitted it was at fault and that indeed Mrs Mxalaba is their employee. However, the Arbitrator did not give Mrs Mxalalaba the compensation she deserved because both Smart Purse and department had financial constrains.

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