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[2008] ZALCJHB 4
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ESG Recruitment CC v Commissioner Tsatsimpe NO and Others (JR1601/06) [2008] ZALCJHB 4 (11 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
NOT
REPORTABLE
CASE
NO. JR 1601/06
In
the matter between:
ESG
RECRUITMENT
CC
Applicant
and
COMMISSIONER
MAPALO TSATSIMPE N.O.
First
Respondent
DISPUTE
RESOLUTION CENTRE
A
DIVISION OF THE MOTOR INDUSTRY
BARGAINING
COUNCIL
Second
Respondent
NUMSA
obo CORNELIUS ENGELBRECHT
Third
Respondent
JUDGMENT
A VAN
NIEKERK, AJ
Introduction
1.
This is an application to review and set
aside an arbitration award made by the Second Respondent (”the
commissioner”).
In her award, the commissioner found that the
dismissal of Mr Cornelius Engelbrecht, who was represented by the
Third Respondent
in these proceedings, was substantively and
procedurally unfair. The commissioner ordered that the
Applicant reinstate Mr
Engelbrecht, with 6 months’ backpay.
2.
Engelbrecht was employed by the Applicant
with effect from 1 January 2005. The Applicant is a temporary
employment service, and
placed Engelbrecht’s services at the
disposal of its client, Tyco Trucks Apex. The terms of the
contract between the
Applicant and its client were such that the
client was entitled to object to any assignee for virtually any
reason, in which case
the client would be entitled to “
cease
to utilise such assignee in the execution of the assignment
”
and in which case the Applicant would be obliged to provide a
satisfactory replacement.
3.
On 19 October 2005, without giving any
reason, Tyco Trucks advised the Applicant that it no longer required
Engelbrecht’s
services.
4.
On 20 October 2005, the Applicant wrote to
Engelbrecht advising him that his contract of employment had come to
an end.
5.
The Applicant contends that in terms of a
limited duration contract of employment signed by the parties,
Engelbrecht was to be employed
“
for
the period that his services would be required on the following site:
Tyco Apex
”.
6.
The arbitration proceedings commenced with
the commissioner enquiring
inter alia
,
as to matters that were common cause between the parties. She
specifically raised the issue whether dismissal (I assume she meant
the existence of a dismissal) was common cause. The Applicant’s
representative replied “
Jah his
contract was ended but he was not dismissed
”.
7.
The commissioner then stated the following:
“
Okay
I think in terms of Section 1 it states where an employee’s
contract has been terminated it is also regarded as dismissal
but
there are various reasons for dismissal. So one party could be
saying yes it was dismissal in terms of the Act and these
are the
reasons why it happened the way it happened.
Where
you say it is not dismissal is where you say he is still employed by
us or we are surprised why he is not there; we never
said to him go,
there is no service or your services are not needed.
So
it is common cause that the employee was dismissed but the reasons
therefor is something different and you will give me those
reasons.
(sic)
8.
In her award, the commissioner records that section 186 of the Labour
Relations Act defines a dismissal and immediately notes
that it is
“
common cause from the evidence
led
” that Engelbrecht’s
contract was terminated. This, she concludes, makes the termination
of his contract a dismissal
in terms of section 186. The commissioner
then records “
I have, based on the
meaning of dismissal as per the LRA, 1995, concluded that the
employee was dismissed and the employer’s
request that I should
dismiss the employee’s case is turned down.
”
9.
In these proceedings, the Applicant contends that the commissioner
failed to place proper weight on the limited duration contract
that
Engelbrecht had signed, and in particular, the alignment of his
contract of employment with the contract concluded between
the
Applicant and its client. Further, the Applicant contended that
the commissioner’s ruling failed to have regard
to the cases of
Dick v Cozens Recruitment Services
(2001) 22
ILJ
276 (CCMA) and
April
and Workforce Group Holdings (Pty) Limited t/a The Workforce Group
(2005) 26
ILJ
2224 (CCMA). These cases clearly
establish that where an employee’s contract contains a
resolutive condition, freely
agreed to, triggered by the client of a
temporary employment service, there is no termination of the contract
by the employer temporary
employment service, and therefore no
dismissal. These decisions have not been the subject of any
consideration by this Court, as
far as I am aware, but they are not
uncontentious. It might be argued, as Craig Bosch has done in
his recent Article
Contract as a Barrier
to “Dismissal
” 2008 29
ILJ
813 that clauses such as that contained in Engelbrecht’s
contract are invalid because they are contrary to public policy,
or
because they do not reflect the realities of the triangular
relationship that is established when an employee is placed on
assignment with the client of a temporary employment service.
Nowhere in her award does the commissioner canvas these or any
other
arguments that might justify the conclusion to which she came. Her
reasoning, based only as it is on a letter advising Engelbrecht
that
his contract had terminated begs the question of the existence of a
dismissal as defined by the LRA. The commissioner
ought
to have determined whether or not the fulfilment of the resolutive
condition in Engelbrecht’s contract (i.e. the request
to his
employer that he be removed from the workplace) brought the contract
to an end by operation of law or whether, based on
arguments as those
raised by Bosch, the validity of such a clause ought to be further
interrogated.
10.
In these circumstances, in my view, the commissioner’s
conclusion is one to which no reasonable commissioner could come.
This is patently a matter that ought to be the subject of more
careful consideration and for that reason, I intend remitting the
dispute to the Dispute Resolution Centre of the Bargaining Council
for hearing before a different commissioner.
11.
I accordingly make the following order:
1.
The commissioner’s arbitration award
dated 22 March 2006 is reviewed and set aside;
2.
The matter is remitted to the Dispute
Resolution Centre of the Motor Industry Bargaining Council for
determination before a different
commissioner; and
3.
There is no order as to costs.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of Hearing:
13 March 2008
Date
of Judgment: 11 July 2008
APPEARANCES
Advocate
for the Applicant:
Advocate B M Jackson
Attorneys
for the Applicant: Jurgens
Bekker Attorney
For
the Respondent:
E Mutileni