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[2009] ZALCJHB 77
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Ephraim v Bull Brand Foods (Pty) Ltd (J104/09) [2009] ZALCJHB 77; (2010) 31 ILJ 951 (LC) (27 November 2009)
THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. J 104/09
In
the matter between:
MAYO
MTOKAFONA
EPHRAIM
Applicant
And
BULL
BRAND FOODS (PTY)
LTD
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
The applicant brings this claim under the
Basic Conditions of
Employment Act, 1997
, seeking payment of a month’s notice pay
consequent on the termination of his employment by the respondent.
The claim is
for R3 133.80. The respondent denies liability to the
applicant, on the basis that it was entitled to terminate the
applicant’s
employment without notice.
[2]
The merits of the claim are not relevant at this juncture. When this
matter was called yesterday, I sought clarity from Mr.
Scholtz, who
appeared for the applicant, as to the nature of the applicant’s
cause of action since the precise basis on which
the applicant sought
the Court’s intervention to secure the relief he claimed was
not immediately apparent from the pleadings.
The applicant had
recorded in his statement of claim that in terms of
s 77(1)
of the
BCEA this Court generally has exclusive jurisdiction in respect of
all matters under the Act, and that in terms of
s 77(3)
this Court
has concurrent jurisdiction with the civil Courts to hear matters
concerning contracts of employment. When pressed on
the issue, Mr.
Scholtz conceded that the applicant had not pleaded a claim based in
contract, i.e. that the applicant was not seeking
to invoke the
Court’s jurisdiction under
s 77(3).
Rather, Mr. Scholtz
contended, the applicant relied on
s 77(1)
of the Act, effectively to
enforce the right to notice or payment in lieu of notice established
by
s 37.
[3]
The applicant’s position raises the question whether this Court
has the power effectively to enforce the provisions of
the BCEA as an
agent of first instance. Mr. Scholtz submitted that in terms of
s 37
,
an employee was entitled, on termination of employment, to the
prescribed notice. The respondent had failed to pay the applicant
notice pay, being the equivalent of four weeks’ remuneration.
The relief sought in terms of the applicant’s statement
of
claim is an order directing the respondent to pay the applicant his
leave pay.
Section 77
(1), by conferring exclusive jurisdiction on
this Court in respect of all matters in terms of the Act, entitles
the Court to direct
that the applicant should be paid his notice pay.
[4]
Section 77
(1) of the BCEA reads as follows:
“
Subject to the
Constitution and the jurisdiction of the Labour Appeal Court, and
except where this Act provides otherwise, the Labour
Court has
exclusive jurisdiction in respect of all matters in terms of this
Act, except in respect of an offence specified in sections
43, 44,
46, 48, 90 and 92”
In
my view, the provisions of this section do no more than confer a
residual exclusive jurisdiction on this Court to deal with those
matters that that the Act require be dealt with by the Court. The
wording of the section does not confer a jurisdiction on the
Court to
deal with matters that must be dealt with, in the first instance, by
duly appointed functionaries. Mr. Scholtz then relied
on s 77A (g)
(which empowers the Court to make orders dealing with any matter
necessary or incidental to performing its functions
in terms of the
Act) as the basis on which the Court was entitled to order payment of
the notice pay claimed by the applicant.
This submission confuses the
issue of jurisdiction with the powers conferred on this Court to deal
with matters under its jurisdiction
– the fact that the Court
is accorded the power to deal with matters necessary or incidental to
performing its statutorily
defined functions does not serve to expand
the ambit of those functions.
[5]
In the absence of any provision in the BCEA that confers jurisdiction
to this Court to enforce the provisions of the Act directly
and as an
agent of first instance, the applicant’s claim is misconceived.
To hold otherwise would entirely undermine the
system of enforcement
established by Chapter 10 of the Act. Chapter 10 establishes the
mechanisms to monitor and enforce the protections
guaranteed by the
Act. In summary, the entry point into the system is the office of the
labour inspector, to whom complaints may
be made. The labour
inspector is required to endeavor to seek an undertaking from the
employer against whom the complaint is made
(s 68), failing which the
inspector may, if the inspector has reasonable grounds to believe
that an employer has not complied with
the Act, issue a compliance
order (s 69). An employer may object to a compliance order by making
representations to the director-general
(s 71) and appeal to this
Court in terms of s 72 against any order made by the
director-general. In terms of s 73, the director-general
may apply to
this Court to have a compliance order made an order of Court in terms
of s 158 (1) (a) of the Labour Relations Act.
What relevance and
purpose would this carefully crafted system continue to have if an
employee were entitled to bypass it and approach
this Court for
orders directly enforcing the provisions of the Act?
[6]
The BCEA clearly contemplates that this Court has a general
supervisory function in the statutory scheme of enforcement (given
its appellate functions in terms of s 72), that it should facilitate
the enforcement of orders made by the appropriate functionaries
(given its powers to make compliance orders of Court) and that it
should ultimately act to impose punishment for continued breaches
of
the Act (given the Court’s powers to impose fines in terms of
schedule 2 to the Act). In short, the Act does not extend
to this
Court those functions that are reserved for the labour inspectorate,
and in particular, it does not contemplate that this
Court may grant
orders that would effectively amount to the compliance orders
contemplated by s 69.
[7]
What may amount to a limited exception to this rule is to be found in
s 77 (3), in so far as that section confers on this Court
the
jurisdiction to determine disputes concerning contracts of
employment. Section 77 (3) may indirectly require the Court to
enforce certain provisions of the BCEA in the sense that a claimant
may rely on a provision of the Act to contend that a basic condition
of employment (a provision of the Act that stipulates a minimum term
or condition of employment) constitutes a term of a contract
of
employment. This is a consequence of the construction adopted by s 4
of the Act, which broadly speaking, provides that a basic
condition
of employment constitutes a term of any contract of employment.
However, under s 77 (3), a claimant does not seek to
enforce a
statutory right rather than a contractual term that must be read down
from the Act. In these proceedings, the applicant
has expressly
disavowed reliance on a cause of action framed in contractual terms,
and I need therefore take the matter no further.
[8]
Finally, in relation to costs, I have already noted that the
applicant’s claim is entirely misconceived. The strategy
undertaken by the applicant (or, more likely, his attorney) appears
to be one where a number of claims for relatively small amounts
are
instituted in terms of the BCEA following a termination of
employment, each of them accompanied by a prayer for costs on a
punitive scale. This claim is no exception. In correspondence
addressed to the respondent, the applicant demanded payment of the
applicant’s outstanding leave pay, remuneration and notice pay
under threat of proceedings in this Court where costs would
be
claimed on the scale as between attorney and own client. As matters
transpired, it was only the claim for notice pay that was
pursued, a
claim which was defended by the respondent. The irresistible
conclusion is that litigation initiated in these circumstances
(in
preference to lodging a complaint with a labour inspector) is
intended solely to run up legal costs that might later be recovered
from the employer party. A strategy of this nature clearly amounts to
unprofessional conduct.
[1]
This
is especially so where the amount of the claims does not warrant the
scale of litigation initiated in what is the equivalent
of a division
of the High Court. In the present matter for example, a claim for
some R3000, the papers extend to some 50 pages,
a pre-trial
conference has been held and the matter has been the subject of at
least one interlocutory intervention by this Court.
The parties
attended Court ready to lead the evidence of their witnesses in trial
scheduled to last a day. The legal costs incurred
will inevitably far
exceed the amount that the applicant claims. All of this has served
to frustrate the statutory purpose of establishing
an inexpensive and
expeditious system for the enforcement of basic conditions of
employment, and has served only to advance the
interests of the
applicant’s attorney. I am reluctant in the present
circumstances to make a punitive costs order against
the applicant,
who no doubt is an unwitting spectator to events. I am also reluctant
to make an order for costs against the applicant’s
attorney
without expressing the caution that similar matters will in future be
dealt with on the basis of referrals to the appropriate
Law Society
or Bar Council, and the risk of costs orders
de
boniis propiis
.
This judgment serves as that caution.
I
accordingly make the following order:
1.
The applicant’s referral is dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Date
of hearing: 26 November 2009
Date
of judgment: 27 November 2009
Appearances:
For
the applicant: Mr. W P Scholtz from Jansens Incorporated
For
the respondent: Ms S Lancaster from Macrobert Inc.
[1]
See
the judgment by Todd AJ in
Bartmann
AAC & Baartman MME t/a Khaya Ibhubesi v De Lange CLG &
another
(J441/09,
dated 17 April 2009).