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[2003] ZALCJHB 8
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Wyeth SA (Pty) Ltd v Manqele and Others (JR850/01) [2003] ZALCJHB 8 (26 May 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 850/01
In
the matter between:
WYETH
SA (PTY)
LIMITED
Applicant
and
MANQELE,
T
First
Respondent
MOLETSANE,
R N.O.
Second
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Third
Respondent
SECURITY,
RETAIL, TRANSPORT AND ALLIED
WORKERS
UNION OF SOUTH AFRICA
Fourth
Respondent
JUDGMENT
CORAM
: A VAN NIEKERK AJ
[1]
This is an application brought in terms of section 158(1)(g) of the
Labour Relations Act, 66 of 1995 (“the LRA”)
in which the
Applicant seeks to review and set aside the ruling made by the Second
Respondent, a Commissioner of the Commission
for Conciliation,
Mediation and Arbitration (“the CCMA”), on 2 March 2001.
[2]
The Applicant has raised two grounds for review. The first is that
the Commissioner committed a gross irregularity in handing
down a
ruling in circumstances where another Commissioner had heard oral
submissions from the parties’ respective representatives
concerning the merits of the matter. Secondly, it is contended
that the Commissioner committed a material error of law,
alternatively, that he arrived at an unjustifiable conclusion in
ruling that the First Respondent was an “employee”
of the
Applicant as defined by section 213 of the LRA.
[3]
The facts giving rise to this application are largely common cause.
The First Respondent was offered a position by the
Applicant as a
sales representative. They concluded a written contract of
employment on 15 March 2000 in terms of which
the First
Respondent was to commence employment on 1 April 2000.
[4]
Prior to the First Respondent commencing employment, the First
Respondent was advised that the Applicant was no longer prepared
to
employ him.
[5]
The Applicant’s decision not to employ the First Respondent was
directly related to the allocation of a motor vehicle
to the First
Respondent. In terms of the contract of employment, the
First Respondent was entitled, as part of his remuneration
package, to be provided with a company vehicle for company business
and reasonable use for private purposes. The Applicant
avers
that the First Respondent was advised that he could purchase a new
motor vehicle in pursuance of this term of his contract,
subject to a
maximum purchase price of R124 000. The Applicant avers further
that the First Respondent was advised that he
was to acquire a new
motor vehicle, since the leasing company that financed vehicles for
and on behalf of the Applicant would not
finance a second hand
vehicle. The Applicant selected a BMW 316 motor vehicle, which
after inspection by the leasing company,
transpired to be a used
vehicle. The First Respondent thereafter identified an Opal
Astra motor vehicle as the vehicle to
be purchased on his behalf.
After signature of the contract of employment, the Applicant was
contacted by the leasing company
and advised that the vehicle
selected by the First Respondent was no longer in production and
could not be a new vehicle.
The Applicant viewed what it
considered to be a misrepresentation by the First Respondent of the
status of the vehicle in a serious
light, and advised him that there
was no contract of employment between them since the parties had been
unable to reach consensus
as to the condition of the motor vehicle
stipulated in the letter of employment.
[6]
The Fourth Respondent, on behalf of the First Respondent, thereafter
referred a dispute concerning an alleged unfair dismissal
to the
CCMA. The Applicant took the point that the First Respondent
was not an employee as defined in section 213 of the
LRA. The
Presiding Commissioner, Commissioner Nagdee, is alleged to have heard
oral submissions from the parties’ representatives.
On
25 August 2000, an agreement was reached between the parties in
terms of which the point in limine would be addressed by
the filing
of affidavits by both sides and once these had been exchanged, the
parties further agreed to furnish the CCMA with “written
submissions/arguments”. The parties agreed that the
Commissioner would thereafter make a ruling, and that they were
in
agreement that it would not be necessary to schedule a hearing for
arguments and that the “ruling will be made on the
affidavits
and submissions.”
[7]
On 6 October 2000, the Fourth Respondent addressed a letter to the
Senior Convening Commissioner recording that it intended
to request
Commissioner Nagdee’s recusal on the basis that he was alleged
to have suggested at the conciliation proceedings
that the CCMA would
not have jurisdiction and that the dispute ought to be dealt with by
the civil courts. Without any recourse
to the Applicant, the
matter was thereafter allocated to another Commissioner, the Second
Respondent in these proceedings, Commissioner
Moletsane. The Second
Respondent ruled that the First Respondent became an employee “the
moment he accepted an offer of employment”
and dismissed the
point in limine.
[8]
In so far as the first ground of review is concerned, the Applicant’s
primary complaint is that Commissioner Nagdee had
been seized of the
matter and that it was irregular for Commissioner Moletsane to make a
ruling, I am not persuaded that it can
be said that Commissioner
Nagdee had been seized of the matter in the sense that any
submissions addressed to him were of such
a nature or extent so as to
preclude another Commissioner from making a ruling on the point in
limine.
[9]
The tentative nature of any proceedings before Commissioner Nagdee is
apparent from the terms of the agreement the parties themselves
concluded as to how the point in limine would be determined.
The agreement contemplated the filing of a founding affidavit,
an
answering affidavit and a replying affidavit, as well as arguments to
be submitted in writing by both parties. It
is also clear
that the parties contemplated that the ruling would be made on the
basis of the affidavits and submissions filed
in terms of the
agreement. There is nothing in the agreement between them to indicate
that anything that may have been submitted
to Commissioner Nagdee was
to be of any consequence in the determination of the point in limine.
[10]
The letter addressed to the CCMA by the Fourth Respondent on
6 October 2000 was not an application for Commissioner Nagdee’s
recusal. The letter clearly states that the Fourth Respondent
intended to request his recusal, not that it was doing so.
What
actions the Senior Convening Commissioner took consequent on the
delivery of the Fourth Respondent’s letter are not
disclosed on
the papers but it is clear that at some point, Commissioner Nagdee
withdrew from the proceedings. There is nothing
to preclude a
commissioner from withdrawing from proceedings without a formal
application for recusal being brought. The
Fourth Respondent
had raised a concern based on a view that Commissioner Nagdee had
allegedly expressed and it may well have been
for this reason that
Commissioner Nagdee and/or the Senior Convening Commissioner agreed
that the point in limine would be determined
by Commissioner
Moletsane without a formal application for Commissioner Nagdee’s
recusal.
[11]
I do not agree with the Applicant’s submission that the Fourth
Respondent’s actions amounted to “Commissioner
shopping”
and that to condone its actions would encourage abuse of the
statutory dispute resolution process. It remained
open for the
Senior Convening Commissioner and/or Commissioner Nagdee to disagree
with the view expressed by the Fourth Respondent
in its letter, and
to insist that Commissioner Nagdee determine the point in limine or
that a formal application for recusal be
brought. Given the
nature of the agreement between the parties, and their clear
instruction that the point in limine was
to be determined by what
followed the agreement rather than what preceded it, there was no
prejudice in this instance to the Applicant
by having Commissioner
Moletsane determine the matter in accordance with the terms of their
agreement.
[12]
The first ground for review must therefore fail.
[13]
In so far as it is alleged that Commissioner Moletsane misconducted
himself by finding that the First Respondent was an employee
of the
Applicant by virtue of their having concluded a contract of
employment, this Court has previously held that a person who
is a
party to a contract of employment but who has not yet commenced
employment is not an employee for the purposes of the LRA.
In
Whitehead v Woolworths (Pty) Ltd
(1999)
20 ILJ 2133 (LC), Wagley AJ, as he then was, held that even if on the
facts of that case he were to find that a contract
of employment had
been concluded, Ms Whitehead was not an employee because she did not
work for nor was she entitled to receive
remuneration from the
respondent in that matter.
[14]
Section 213 of the LRA defines “employee” to mean:
“
(a)
any person, excluding an
independent contractor, who works for
another person or for the state and who receives, or is entitled to
receive, any remuneration;
and
(b)
any other person who in any manner
assists in carrying on or conducting the business of an employer, and
“employed”
and “employment” have meanings
corresponding to that of “employee”.
[15]
In this regard, Wagley AJ stated the following:
“
[7]
In terms of the definition a person is only an employee when such
person actually works
for another person. The employee must therefore
have rendered a service to another which services are not that of an
independent
contractor. In addition to working for another the
employee must also ‘receive’ or be ‘entitled to
receive’
remuneration. The remuneration referred to must
correspondingly mean remuneration for work done or tendered to be
done.
In the circumstances where an offer of
employment is made to another and the offer is
accepted a contract of employment may come into existence but the
parties to that
contract do not enjoy the protection of the Act until
such time as the offeree actually commences her performance or at
least tenders
performance in terms of the contract.”
(See
Whitehead v Woolworths (Pty) Ltd
at
p 2137 A-C)
[16]
Reference was made in a submission on behalf of the First Respondent
in these proceedings to an obiter by Zondo JP in the Labour
Appeal
Court proceedings in the same matter, reported as
Woolworths
(Pty) Ltd v Whitehead
[2000] 6 BLLR 640
(LAC). In that case, Zondo JP stated that:
“
In
that event the question that arises is whether, between the date of
the interview and the date of the taking of the final decision
by the
employer on which of the candidates he gives the job to, an employer
is not entitled to change his mind about which candidate
he thinks is
the best for the job. Clearly, an employer is entitled to
change his mind between those two events provided
he has not yet made
an offer to anyone of the candidates. In my judgment it is
irrelevant whether the change of mind is due
to his own
reconsideration of issues or whether he has spoken to a colleague or
an adviser. The fact of the matter is that
the period between
the interview and the taking of the final decision is for the
employer to consider all the candidates –
their strengths and
weaknesses as well as what his/her business requirements are before
he makes the final decision to give the
job to one of the candidates
or, indeed, not to give the job to anyone of the candidates.”
[17]
The proviso in this passage relating to the making of an offer to a
prospective employee is principally the basis on which
Commissioner
Moletsane came to the conclusion he did. It also
forms the rationale of a judgment in this Court
by Pillay J in
Jack
v Director General : Department of Environmental Affairs
(Labour
Court) case number P734/02, 11 November 2002.
[18]
It should be recalled that while Wagley AJ found that Ms Whitehead
was not an employee for the purpose of her claim of
unfair dismissal,
there was no dispute that she was an applicant for employment for the
purposes of her claim of unfair discrimination.
The LRA at that time
conferred locus standi for the purposes of an equality claim on
persons who were applicants for employment.
The
Whitehead
case was decided on that basis, and the
judgment of the Labour Appeal Court in which the obiter by Zondo JP
appears was a judgment
given in the context of a claim for unfair
discrimination rather than unfair dismissal. It is not clear
whether the obiter
extends to a statutory claim for unfair dismissal
by an aggrieved party to an unfulfilled employment contract or
whether the observation
by Zondo JP concerned a possible remedy for
breach of contract.
[19]
Be that as it may, I am not persuaded that the view expressed by
Wagley AJ on the meaning of “work” is necessarily
correct. To require that the statutory reference to “work”
is necessarily confined to work actually performed
for another person
is a limitation that is not justified either by the wording of the
definition or the protection extended by
the LRA to rights of work
security. Section 186 defines “dismissal” to mean
inter alia
that “an employer has terminated a contract of employment with
or without notice” (see section 186(1)(a)). That
provision makes no reference to an employee, and simply requires the
existence of a valid contract of employment and a termination
of that
contract, summarily or on notice, by an employer. The section
is not qualified, as one might expect were the
Whitehead
v Woolworths (Pty) Ltd
approach to be
correct, by any reference to a contract of employment entered into by
an employee.
[20]
The interpretation of the definition of “employee”
adopted in
Whitehead v Woolworths (Pty)
Ltd
necessarily consigns a person such
as the First Respondent, who is an employee party to a valid contract
of employment to become
effective on a later date, to a
jurisprudential limbo unless and until that party physically renders
services in terms of that
contract. Persons in these
circumstances may well have resigned from their existing employment
and put themselves at considerable
financial risk in the expectation
of commencing work in terms of an agreement that is binding on both
parties at common law.
To deny the statutory protection of the
security of employment conferred by the LRA in the interregnum
between the conclusion of
a valid contract of employment and the
physical commencement of work seems to me to be contrary to a
purposive interpretation of
the definition of ”employee”.
[21]
A less literal approach to the statutory definition of employee is
further justified by the extent of the constitutional protection
of
employment rights. Section 23 (1) of the Constitution provides
that “
Everyone
has the right to fair labour practices”. The choice of
the word “everyone” was deliberate; other
constitutional labour rights extend to a “worker”.
[22]
A person who is an employee party to a binding contract of employment
is obliged to commence work, and entitled to receive
remuneration on
the date that the parties agree that these respective rights and
obligations will commence. In my view, the
term “employee”
as defined in section 213 of the LRA and the requirement that a
person ‘work’ for another
to be an employee extends to a
person who is contracted to work.
[23]
It follows that the Applicant’s second ground for review must
also fail. Whether the First Respondent was dismissed and
the
fairness of any dismissal is a matter to be determined by the CCMA.
I find only that as a party to a valid and binding
contract of
employment, she is an “employee” for the purposes of a
claim under Chapter VIII of the LRA.
[24]
I accordingly make the following order:
The
application is dismissed with costs.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour
Date
of hearing:
23 May 2003
Date
of judgment:
26 May 2003
Counsel
for Applicant:
Advocate M van As
Attorneys
for Applicant:
Webber Wentzel Bowens
For the First and Fourth
Respondents:
Mr Sebola
Union
official