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[2008] ZALCJHB 86
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Ziphakamise Capitol Caterers (Pty) Ltd v Wolmarans and Others (J537/04) [2008] ZALCJHB 86 (20 June 2008)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: J537/04
In the matter between:
ZIPHAKAMISE
CAPITOL
First Applicant
CATERERS
(PTY) LTD
And
G
WOLMARANS
1
ST
Respondent
N MILES NO
2
ND
Respondent
COMMISION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
3
RD
Respondent
JUDGMENT
MOLAHLEHI J
Introduction
[1]
This is an application in terms which the
applicant sought an order to review and set aside the arbitration
award issued by the
second respondent (the commissioner) under case
number MP 3841/03. In terms of the arbitration award the commissioner
found firstly
that the third respondent, the third respondent, the
Commissioner for Conciliation Mediation and Arbitration (CCMA) had
jurisdiction
to entertain the dispute and secondly that the dismissal
was unfair.
[2]
The applicant also brought an application
for the condonation of the late filing of its review application.
[3]
The first respondent (the employee) applied
for condonation for the late filing of the opposing affidavit.
[4]
The main course of the delay was the
negotiation process that the parties were engaged in. In my
view this is a reasonable
and acceptable explanation.
Accordingly, the late filing of the opposing affidavit is condoned.
[5]
The 2 (two) issues for consideration
arising from the jurisdictional point raised by the applicant relates
to: (a) was there an
employment relationship between the applicant
and the employee. (b) if there was an employment relationship between
the parties
which law between South Africa and Swaziland is
applicable. If found that there was employment relationship between
the parties,
and that the applicable law is this of South Africa,
then the issue in relation to the merits is whether the decision of
the commissioner
was reasonable.
Background
facts
[6]
The employee who was arrested on two
occasions in Swaziland for working without a work permit resigned and
thereafter referred an
unfair dismissal dispute to the CCMA.The
employee claimed constructive dismissal in that according to him the
applicant failed
to address the issue of him not being able to
perform his duties because of being posted to Swaziland where he did
not have a work
permit.
[7]
The applicant did not attend the
arbitration hearing and thus the commissioner having heard the
version of the employee issued a
default award in favour of the
employee.
[8]
Before considering the merits of the
constructive dismissal claim, the commissioner conducted an inquiry
into whether or not the
CCMA had jurisdiction to entertain the
dispute. After concluding that the CCMA had jurisdiction the
commissioner proceeded to determine
whether a constructive dismissal
as alleged by the employee did take place. As concerning the issue of
jurisdiction the employee
testified that the applicant promoted and
posted him to manage the Mpumalanga and Swaziland region.
[9]
As indicated earlier the applicant had
difficulties in renewing his work permit. After his second
arrest for working in Swaziland
without a work permit he contacted Mr
King (King) the managing and director of the applicant and told him
that he had to leave
Swaziland because of the problem with the work
permit.
[10]
The employee was then contacted by King who
informed him that the applicant was in the process of tendering for a
government catering
contract in the far north, Polokwane (formerly
Pietersburg) and Messina areas. He was then required to go and
do an assessment
of those tenders. On return to South Africa
the employee stayed with his sister in Mpumalanga.
[11]
After completing the assessment the
employee was contacted again by King who enquired from him if he
could go to Swaziland over
a weekend to do a catering function
there. The employee told him that he was unable because of the
problem of the work permit.
[12]
It would appear that the employee then
drove to Pietermaritzburg, the Friday preceding the weekend he was
required to return to
Swaziland. On his way he contacted King
who told him it was too late and that he should come on Monday.
[13]
On arrival on Monday, the employee met Mr
Robertson who demanded that he should hand in the car keys to another
employee who needed
to use the vehicle. King arrived at 10h00 and on
arrival required the employee to hand over the cell phone. King
then informed
the employee that he was placed on unpaid leave.
[14]
The employee went back to Mpumalanga where
he contacted the Swaziland consulate in Johannesburg to inquire as to
what is the best
way to resolve his work permit problem. He was
advised to contact the Swazi authority directly in Swaziland.
The employee
further testified that he ran into financial
difficulties at the end of July because the applicant did not pay his
salary. The
other cause of his difficulties arose from the
cancellation of both the medical aid and the provident fund
contribution.
[15]
On the 8 August 2003 the employee sent his
resignation letter to the applicant. The letter reads as
follows:
“
As
a result or me not having received any notice or termination of my
employ with Capitol Caterers, and nor receiving any salary
payment
for the month of July 2003. As a result of economical
pressures, I am forced to resign my services from Capitol Caterers
to
seek other employment in an attempt to ensure my economical
survival. It is thus with duress that I submit my resignation.
Should you wish to discuss the issue then please contact my solicitor
Mr Nel with whom you are already in dialog?”
Ground for review
[16]
The applicant contended that the CCMA did
not have jurisdiction to entertain the dispute because the employee
was employed in Swaziland
by Capitol Caterers Swaziland (Pty) Ltd
(Swaziland Caterers). The applicant further contended that the
employee’s claim
that he was employed in Mpumalanga was untrue
because neither the applicant nor Swaziland Caterers never carried on
any business
activities in that area. Even in his return from
Swaziland, the employee did not do any work for the applicant in
Mpumalanga.
[17]
The applicant contended that after the
employee was evicted from Swaziland and was placed on paid leave
because he could no longer
continue the functions of which he was
employed i.e as area manager for Swaziland, Mr Tshabalala who is also
a director of the
applicant and King contacted the employee and asked
him to attend pre-tender briefings in respect of certain defence
force contracts
in Nelspruit, Pietersburg. The rule of the
employee according to the applicant, in this tender process was
required to be
present and not to do anything.
[18]
In as far as the problem of the work permit
encountered by the employee in Swaziland the applicant contended in
its supplementary
affidavit that; the employee had a valid work
permit before joining the applicant, when he worked for another
company known as
Compus Group during January 2000. The
applicant further contended in this connection that the employee
evaded the Swaziland
authorities by claiming that the Compus Group
and the applicant was one entity.
[19]
It has to be noted that this evidence was
never presented before the commissioner because the applicant had
abstained from attending
the hearing.
[20]
In further support of its contention that
the employee was employed by Capitol Caterers Swaziland, the
applicant relied on the application
letter for a work permit written
by the employee on the Capitol Caterers which reads as follows:
“
Re
application for work permit
Capitol Caterers is a
Swazi registered industrial catering company established in 2002.
With our sister company in South Africa
that is a well established
company on the basis of developing from previously disadvantaged
communities in South Africa.
Our goal is to have Capitol
Caterers Swaziland fully established as an individual company with
only Swazi citizens employed by
Capitol Caterers Swaziland and by
utilising only Swazi suppliers…. We hereby wish to make
application for a work permit
or an extension of its current work
permit for two years for Mr Wolmarans. He is currently employed
by Capitol Caterers”.
[21]
The arbitration award was also challenged
on the basis that the commissioner misdirected himself in that he
failed to establish
the following:
(a)
“
The First Respondent’s
employment history with the Applicant or Capitol Caterers Swaziland
(Pty) Ltd.
(b)
Whether or not the First Respondent
was in possession of a valid work permit to work in Swaziland whether
for Capitol Caterers Swaziland
(Pty) Ltd or the Applicant, and if
not, why was he not in possession of such permit;
(c)
Why the First Respondent was evicted
from Swaziland;
(d)
Why the First Respondent was not
able to obtain a work permit after he was evicted form Swaziland so
that he could continue working
as area manager for Swaziland;
(e)
How was it that the First Respondent
was able to work in Swaziland initially for twelve months until his
so called relocation to
Ndogwana when he was appointed as area
manager Mpumalanga and why he was unable to return to Swaziland to
continue his duties as
area manager for Capitol Caterers Swaziland
(Pty) Ltd;
(f)
That the Applicant’s
letterheads which disclosed the branch offices of the Applicant
failed to disclose Mpumalanga a as a
branch area”.
[22]
As far as the impossibility of performance
of his duties in Swaziland the applicant attributed this to the
employee himself.
Evaluation
[23]
The case of the applicant is that the
employee was employed in Swaziland and was under the direct control
and instruction of Capitol
Caterers Swaziland (capitol Swaziland). It
is also the applicant’s case that although the applicant is the
parent company,
Swaziland Caterers, operates as an independent and
autonomous registered legal entity.
[24]
The letter that appointed, the employee
“projects Manager” at Waterford Swaziland, dated 13
February 2002, was signed
on the letter head of the applicant and
signed amongst others by King.
[25]
The employee’s letter of promotion
also signed by King on the letterhead of the applicant and dated 18
December 2002.
The letter reads as follows:
“
It
gives me pleasure to inform you of your promotion to Area
Manager-Swaziland and Mpumalanga regions. This is effective
from 1 January 2003. Your monthly salary package has been
increased to R7400.00 with effect form the same date. However I
must
inform you that unless there is a status change your next review date
is 1 March 2004 in line with the rest of the company.
Other
than the conditions already discussed with you for an Area Manager,
all conditions for your original letter of appointment
will remain
the same. Well done on your performance over the last year and
we look forward to further personal and company
growth in the year
ahead. Should you have any queries
please
contact me
.
[26]
Contrary to the contents of the letter of
promotion referred to above, King suddenly when an unfair labour
practice is declared
signs a letter dated 7 August 2003 on the letter
had of Swaziland Caterers wherein he stated the following:
“
I
refer to the abovementioned case number where the referring party is
Mr G Wolmarans. Please note, said referring party is
not
an employee of Capitol Caterers South Africa, he is an employee of
Capitol Caterers Swaziland (Pty) Ltd, fully registered and totally
operative Swaziland Company. Other than some South African
Company stationery being used on occasions, there is not other
connection whatsoever. The South African CCMA therefore has no
jurisdiction in this matter whatsoever and we recommend that
you
advise Mr Wolmarans to refer any dispute to the relevant labour
authorities in Swaziland.
[27]
The record reveals that the salary of the
employee was paid for by the applicant and not Swaziland
Caterers. The company profile of
Swaziland
Caterers
also
gives a different picture to the one which the applicant sought to
present, that the employee was employed by Swaziland
Caterers.
There is no argument that the employee is a South African and not a
Swazi citizen. In this connection the Capitol
Caterers company
profile states:
1.1 While Capitol
Caterers does have a South African parent company, the Swaziland
Company operates completely autonomously.
1.2 All staff employed
are Swazi citizen.
1.3 Directors are
British/ South African and Lesotho/ South African.
1.4 The South African
connection is used exclusively for training and dietetic services at
present. As soon as possible, these
will become Swaziland
employees and functions.
1.5 All supplies,
where possible, are purchased in Swaziland.
[28]
Paragraph 1.4 of the Company profile in
fact is consistent with what the employee said in his application for
a permit when she
said:
“
The
South African connection is used exclusively for training and
dietetic services at present. As soon as possible, these
will
become Swaziland employees and functions. Thus, reliance on the
letter as indication of the employment status of the
employee doe not
advance the case of the applicant.
[29]
In seeking to build up a case that the
employee was employed by Swaziland Caterers, King addressed a letter
to the employee wherein
at clauses 6 &7 he states:
6.
“
While in Swaziland you had
limited private use of a company delivery truck and cell phone.
Both were company possessions and
are for company use in Swaziland.
Your misrepresentation to the CCMA I find frivolous and immature.
Besides should
you wish to continue to claim that you had a company
car according to South African benefits I am sure the South African
Receiver
of Revenue would be interested to know where all the tax is
for a company car benefit!!.
7.
Having eventually sorted out the
mess you left in Swaziland (including not paying your own personal
maid) we realise that there
is an amount of R7 308. 00 that you have
not accounted for. You are fully aware that any company money
taken for any purpose
whatsoever has to be fully accounted for.
Besides the obvious fact of this adding to concern over your honesty,
integrity
and intentions we will give you until 25 August to return
all this money and / or original valid documentation on what you have
spent for company purposes. Failing which we will report this as
theft to the police and seek a warrant of your arrest”.
[30]
In this letter King does not say that the
employee did not declare the car allowance benefit to the South
African Receiver of Revenue,
but he doubts if he has. However
the pay slip of the employee issued by the applicant reflects a
travel allowance in the
amount of R6000, 00. In this connection
the pay slip also reflects that the employee contributed to the South
African Unemployment
Insurance Fund and not Swaziland.
[31]
On 27 August 2003, the applicant addressed
a letter to the employee’s attorney' and after referring to
clause 7 quoted earlier
King states:
"We have this day
26 August 2003 laid a charge of theft with the SAPS. The
physical address used is c/o Mrs A Arnold
of Ngodwana. Mpumalanga
Province. We recommend you advise Mr Wolmarans of this charge
and should he make an arrangement that
is to our satisfaction as
requested in the previous letter these charges will be withdrawn.
Should he make no attempt to
rectify this mater we have no option but
to seek redress including all costs involved.
[32]
It would appear that in laying the charge
King handed to the South African police an unsigned affidavit where
amongst others he
stated the following:
“
I
am the Managing Director of a company known as Capitol Caterers based
at 121 Loof Street Pietermaritzburg. One of our employees
absconded from the company during August 2003. His name is
Gerrie Wolmarans.
[33]
From the above analysis there can be no
doubt that the, probabilities supports the version that the then
employer was employed by
the applicant and not Swaziland Caterers.
[34]
It has now been accepted in our law
that the preferred test when dealing with the question of whether or
not there exist an employment
relationship between the parties is the
dominant impression test. The enquiry in applying this test
goes beyond what the
parties themselves claim to be the rue nature of
their relationship. The courts and other dispute resolution
bodies have
gone beyond even the written description of the nature of
the relationship in the contract, to uncover the underlying and the
nature
of the relationship. The dominant test has since
Ongevallekommissaris v Onderlinge
Verskeringsgenoodskap AVBOB
1976 (4) SA 446
(A) and Medical
Association of SA & others v Minister of Health & others
(1997) 18 ILJ 528,
gained more support
from the courts and the various dispute resolution bodies. It
has been found that when a court or other
dispute resolution bodies
are called upon to decide whether a person is an employee or not,
they are enjoined to determine the
true and real position between the
parties. In this regard, the issue is not exclusively decided
on what the parties have
decided to call their relationship. In
Denel (Pty) Ltd v Gerber (2005) 26 ILJ
1256 (LAC),
the court held that the
realities of the relationship between the parties should be taken
into account in assessing the true nature
of the relationship.
The expression by the parties as contained in the agreement is an
impartial factor, can be ignored.
[35]
I now proceed to deal with the issue of the
employee being posted to perform work in a foreign country. The
issue here are
the rules which legal system should govern the dispute
arising from the employment relationship which is concluded later in
this
judgement, existed between the parties.
[36]
In
Kleinhans v
Parmalat SA (Pty) Ltd (2002) ILJ 1418 (LC),
the court per Pillay J held that consistent with the common law
principle of party autonomy, parties to international contract
are
free to agree, expressly or tacitly, on the specific legal system to
govern their contract, and as to which country law would
govern the
relationship, is for the court to assign the proper law of contract
and jurisdiction.
[37]
In terms of the test to apply in
determining the proper law of contract and jurisdiction the court in
Kleinhans
(supra) noted that the subjective test which was applied in
Standard
Bank of SA v Efroiken & Newman
1924 AD 171
at 185
had not been rejected. However, the court prefered the
objective test which was enunciated in
Ex
parte Spinazze & Another NNO
1985 (3) SA 650
(A).
[38]
The enquiry in terms of the objective test
entails an investigation into which law and jurisdiction “does
the contract have
the most real connection?” see
Kleinhans
(supra) [19].
The factors to
consider in determining the proper law of contract includes
locus
contractus, locus solutionis, nationality and domicilium
of
the parties. These factors are also applicable in the
determination of jurisdiction, including as was held in
Kleinhans
(supra) weighing of those features of the employment relationship
which fall outside the jurisdiction of the court of the CCMA
against
those that link the relationship to the South Africa. This
approach was also followed in
Sertfontein
v Balmoral Control Contracts SA (Pty) Ltd (2002) 21 ILJ 1091 (CCMA
).
[39]
In the present instance and in as far as
the issue of who the true employer was, the dominant features
indicate strongly and in
fact undoubtedly to the fact that the
applicant was the employer. The dominant features are:
(a)
A contract of employment was concluded
between the parties.
(b)
Although no work seem to have been done in
Mpumalanga, she was posted to work in both Mpumalanga and Swaziland.
(c)
The applicant paid her salary and
effected deductions for the purpose of South African Unemployment
Insurance Fund (SA UIF), Pay
As You Earn (PAYE), Medical Aid and
Trading Allowance.
(d)
After his appointment on the 1
st
of March 2002, the employee received his increase from R6600.00 to
R7400.00 from the applicant.
[40]
In as far as the choice of law is concerned
the main features that connect the contract to South Africa are:
(a)
The contract was concluded and terminated
in South Africa.
(b)
The parties were both South Africans.
(c)
The salary was paid in rands and in South
Africa.
(d)
On his return from Swaziland after his
second arrest the employee was given an assignment to assess tenders
in the various parts
of South Africa.
(e)
The calculation and administration of
salary and benefits of the employee were done in South Africa.
(f)
The arrangement for the return of the
applicant’s property which was in the employee’s
possession was done in South
Africa.
[41]
In the light of the above the review
application stand to be dismissed with costs.
_______________
Molahlehi
J
Date
of Hearing :
30 May 2008
Date
of Judgment :
20
june 2008
Appearances
For
the Applicant : Adv K Lapham
Instructed
by : COLYN TOWNSEND
ATTORNEYS
For
the Respondent: Attorney
C
Jessop
Instructed
by : WIKUS VAN RENSBURG
ATTORNEYS