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[2024] ZALCJHB 61
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Mathope and Others v Fidelity Security Services (Pty) Ltd (JS 753-21) [2024] ZALCJHB 61 (16 February 2024)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JS 753-21
GAJB
6460-21
In
the matter between:
MOTHAPO, JOHANNES AND
19 OTHERS Applicant
and
FIDELITY SECURITY
SERVICES (PTY) LTD Respondent
Heard
: 5 February
2024
Delivered
: 16 February 2024
JUDGMENT
NORTON
AJ
Introduction
1.
The Applicants worked as security guards for Fidelity Security
Services (“Fidelity) and were posted at different
locations to
protect the premises of various Department of Justice and
Constitutional Development (“DOJ”) buildings,
including
the Labour Court in Braamfontein.
2.
The
Applicants commencement dates ranged from 1995, 2008 and 2013 until
the termination of their employment on 1 March 2021. Fidelity
had
contracts with the DOJ which were renewed a number of times –
from December 2016 to December 2019; from 16 December 2019
to 31
March 2020; from 1 April 2020 to 30 September 2020; and finally to 28
February 2021.
[1]
3.
Around 10 December 2020 Fidelity wrote to the Applicants as follows,
“
We
hereby advise that the Department of Justice Contract, upon which you
tender your services, has been extended until the 28 February
2021.
In this regard, please take note that we have not been advised of the
outcome of the Tender process, and therefore will advise
you when the
Company has been notified of the outcome…Please take note that
should the Company be unsuccessful in the Award
of the Contract, or
should the Contract be reduced, management will endeavour to consult
with the affected employees, and seek
possible alternatives to avoid
the termination of your employment in terms of the provisions of your
contract of employment
.:
[2]
4.
The
Applicants wages were low, with an average monthly salary being in
the region of R4 586.00 at the time of termination.
The
Respondents admit that the Applicants were paid below the minimum
threshold.
[3]
5.
Fidelity wrote to the guards in late February and early March 2021
informing them of their impending termination as follows,
“…
As
you are aware, the company has not been awarded the tender for the
Department of Justice sites and the client has cancelled its
agreement with Fidelity. We hereby advise that your contract of
employment that you entered into with Fidelity Security will be
terminated as of 1 March 2021. You will be assisted with the
following – UIF and Provident Fund claims…you will need
to return your uniform…”
6.
The Applicants referred an unfair dismissal dispute to the CCMA on 30
March 2021 describing the reason for dismissal as
“unknown”.
7.
Conciliation ensued but the dispute persisted, and the matter
proceeded to arbitration. On the 3 September 2021 the arbitrator
issued a ruling that she lacked jurisdiction to hear the matter and
advised the Applicants to approach the Labour Court for relief.
The
arbitrator characterised the dispute as one concerning a dismissal
for operational requirements.
8.
In their Statement of Case before this Court the Applicants submit
that Fidelity did not follow section 189 of the Labour
Relations Act
1995 (the “LRA”), and that their retrenchments were
procedurally and substantively unfair. They sought
compensation and
severance pay. Presumably the guards did not seek reinstatement as
they all found employment elsewhere.
9.
Fidelity in
its Statement of Response averred that there was no dismissal, simply
a termination of a site-specific fixed term contract.
[4]
10.
Fidelity made reference to clause 3.8 of the contracts which read.
“
Termination
of Contract of Employment: The employee specifically accepts that
employment with the employer is dependent upon retention
by the
employer of the service contract of the client at whose premises the
employee has been appointed to perform duty…and
agrees that
should the said client service contract be cancelled or terminated
for whatsoever reason … this agreement may
be terminated
effective of the date of such termination, cancellation
…”
[5]
11.
On the 9 February 2023 the parties legal representatives concluded a
pre trial meeting. The parties identified the following
issue for the
court’s determination, “
Whether or not the Applicants
were entitled to severance pay and whether there was a retrenchment
?”
12.
On 10 February 2023 the matter proceeded before Honourable Justice
Van Niekerk. After reading the papers and hearing the
parties he
ordered:
12.1. that the
Applicants withdraw their claim as it relates to a claim for unfair
dismissal in terms of section 189 and
191 of the LRA
12.2.
that the Applicants be granted leave to amend their
Statement of Claim to reflect a claim for unpaid severance in terms
of section
41 of the BCEA, as well as any claim for subsequent
statutory monies
13.
The Applicants subsequently did amend their Statement of Claim
seeking an order for payment of severance pay, leave pay
and monies
for uniforms deducted from their salaries.
14.
The matter was set down for a 2 day trial on 5 and 6 February 2024.
The parties legal representatives approached me, proposing
that the
matter be argued on the papers, and that the hearing of oral evidence
would not be necessary. I agreed with the proposal
and furthermore
ordered the parties to address on affidavit the following issues:
14.1.
Whether or
not the Applicants were entitled to payment as per section 198D10(a)
of the LRA effective from 1 January 2015.
[6]
If so entitled, the quantum of the payment;
14.2. Whether or
not the Applicants are entitled to Notice pay, and if so entitled,
the quantum of this amount
15.
The dispute about Leave Pay was referred by order of the court to the
CCMA for determination.
The
Applicant’s submissions
16.
The amended pleaded case states:
16.1.
At all
material times the Applicants were employees as defined by the
Labour
Relations Act and
were permanently employed by the Respondent.
[7]
16.2. The
Applicants seek an order from the court “
directing the
Respondents to pay their severance pay for completed years of
service, leave pay and monies for uniforms that were
deducted from
their salaries
.”
17.
The deponent to the applicant’s affidavit stated as follows,
17.1. “
At
all material times, myself and the other Applicants were employees as
defined in the LRA and employed on a succession of fixed
term
agreements, the Applicants herein are entitled to payment as per
section 198B(10)(a)
of the LRA effective from 2015.”
17.2. “
My
income was R4586.04 therefore my 7 years service from 2015 amounts to
7 weeks remuneration at R7 766.35…The other
Applicants
(save for the 9
th
applicant) are all
calculated on the same basis
…:
17.3.
The Applicants are entitled to notice pay in the amount of
R4 686.04.”
The
Respondent’s submissions
18.
The Applicants abandoned their claim for unfair dismissal. That was
the only dispute however referred to conciliation.
19.
No dispute pertaining to claims for severance pay (in terms of
section 41
of the BCEA); statutory monies (in terms of
section 73A
or
77
(1) of the BCEA) or remuneration in terms of
section 198B(10)(a)
of
the LRA has been referred to conciliation before the CCMA. Even if so
conciliated all such disputes are subject to arbitration
as the
dispute resolution mechanism, and not adjudication by the Labour
Court.
20.
With respect to the claim for severance pay the Respondent submits
that:
20.1. The Labour
Court has no jurisdiction to hear the dispute as such a dispute must
be entertained in the CCMA or Bargaining
Council and proceed through
the processes of conciliation and arbitration.
20.2. Whilst the
Labour Court has jurisdiction to hear a dispute about severance pay,
it must be in conjunction with a determination
about the fairness of
a dismissal for operational requirements. That is however no longer a
dispute before this Court.
20.3. There was no
dismissal, simply a termination of a fixed term contract,
21.
With respect to a payment in terms of
section 198B
of the LRA the
Respondent submits:
21.1. The
Applicants have never invoked
section 198B
of the LRA in their
pleaded case.
21.2.
Section
198B
does not in any event apply to employees employed in terms of a
fixed term contract which is permitted by a collective agreement.
[8]
The Applicants were subject to the Main Collective Agreement
concluded in the National Bargaining Council for the Private Security
Sector (“NBCPSS”).
With respect to a claim
for Notice Pay the Respondent submits:
22.1. that the
Applicants are not entitled to notice pay, as they were informed
approximately 3 months prior to the termination
of their contracts
that their employment was coming to an end on 1 March 2021.
22.2.
The
Respondent argues further that even assuming that the Applicants were
entitled to notice pay, they earned below the minimum
threshold, and
would be required to refer a dispute to the CCMA, which would
ultimately be the subject of arbitration as contemplated
in
section
73A(1)
, (4) and (5) of the BCEA.
[9]
Discussion
and analysis
23.
The Applicants withdrew their unfair dismissal claim in February
2023, (pertaining to an unfair retrenchment), presumably
on the
strength of the evidence that the employees were contracted on fixed
term contracts linked specifically to the DOJ contract
with the
Respondent. A termination of a fixed term contract in these
circumstances would not amount to a dismissal.
24.
The Applicants persisted with 3 disputes: relating to Severance Pay;
Notice Pay and another species of potential payment
which was that
contemplated in
section 198B(10)(a)
of the LRA. (As mentioned earlier
the dispute about outstanding Leave Pay has been referred to the
CCMA)
25.
Regrettably for the Applicants the Labour Court cannot come to their
assistance – principally because this court
lacks jurisdiction
to adjudicate upon such matters.
26.
In this case the Labour Court is not determining the fairness of
a dismissal for operational requirements of the Applicants, and
may
not therefore determine a dispute about severance pay. The Labour
Court may only determine a dispute about severance pay whilst
determining a dispute about the fairness of an operational
requirement dismissal.
Section 41(10)
of the BCEA reads,
“
If
the Labour Court is adjudicating a dispute about a dismissal based on
the employer’s operational requirements, the Court
may inquire
into and determine the amount of any severance pay to which the
dismissed employees may be entitled and the Court may
make an order
directing the employer to pay that amount.”
27.
Absent
the Labour Court’s determination about the fairness of a
retrenchment, employees disputing their entitlement to, or
quantum of
severance pay must proceed to the CCMA for conciliation, and if that
is unsuccessful then arbitration.
[10]
28.
The Respondents argue that the Applicants were notified almost 3
months prior to the termination, that their contracts were coming
to
an end on 1 March 2021. Although I am not satisfied that this notice
was clear (it was expressed as a possibility, and a possible
warning
of termination), a dispute about such payment or entitlement must be
made to the CCMA, and not to the Labour Court.
29.
Section
73A(1)
,(4) and (5) of the BCEA entitles poorly paid employees such as
the Applicants to refer disputes about a failure to pay any amount
owing in terms of the National Minimum Wage Act, a contract of
employment or collective agreement to the CCMA. Higher paid employees
may refer their disputes to the Labour Court, High Court, or subject
to their jurisdiction, the Magistrates Court or Small Claims
Court.
[11]
30.
With respect to the 198B(10)(a) possible payment, that is
defeated by section 198B(2)(c) as the employees are subject to
the
collective agreement of the Bargaining Council for the Private
Security Sector, which makes no such provision. Compounding the
Applicant’s difficulties is the jurisdictional issue which
arises once again – and that is that a dispute about Section
198(B) must be channelled to the CCMA or a bargaining council as
contemplated in section 198(D)(1) of the LRA.
31.
Regrettably all of this is cold comfort for poorly paid security
guards who worked for many years protecting DOJ sites. Should they
wish to continue to pursue any monetary dispute, then the CCMA of
bargaining council should be their next port of call.
32.
In the circumstances I make the following order
Order
33.
The Applicant’s action is dismissed.
34.
There is no order as to costs.
D
Norton
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant
: Mr Cameron Meyer
For
the Respondent
: Mr Ross Atcheson
[1]
Respondent’s Heads of Argument, dated 6 February 2024,
paragraph 12.3.2
[2]
Pg 48 of the trial bundle.
[3]
Respondent’s Heads of Argument, paragraph 12.3.6
[4]
Para 6.1 of the Respondents amended statement of claim.
[5]
Pg 59 of the Court file.
[6]
An
employer who employs an employee in terms of a fixed term contract
for a reason contemplated in subsection (4)(d) (
working
on a specific project of limited duration
)
for a period exceeding 24 months, subject to the terms of any
applicable collective agreement, pay the employee on the expiry
of
the contract one weeks remuneration for each completed year of the
contract
…
[7]
Paragraph 6.1
[8]
Section 198B(2)(c) of the LRA
[9]
73A(1)
Despite section 77, any employee or worker as defined in section 1
of the National Minimum Wage Act, 2018, may refer a
dispute to the
CCMA concerning the failure to pay any amount owing to that employee
or worker in terms of this Act, the National
Minimum Wage Ac, 2018,
a contract of employment, a sectoral determination or collective
agreement.
(4)
The CCMA must appoint a Commissioner in terms of
section 135
of the
Labour Relations Act, to
attempt to resolve by conciliation any
dispute that is referred to the CCMA in terms of subsection (1).
(5)
The CCMA must commence the arbitration of a dispute contemplated in
subsection (1) immediately after certifying that the dispute
remains
unresolved in terms of
section 135(5).
[10]
Section 41(6)
, (8) and (9) of the BCEA.
[11]
Section 73(A)(2)
of the BCEA.