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[2011] ZALCD 26
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Hlanzeka Cleaning Company (Pty) Ltd v Ngwane NO and Others (D615/08) [2011] ZALCD 26 (29 June 2011)
PATHER
A.J
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
Case
no: D615.08
In the matter between:
HLANZEKA
CLEANING COMPANY (PTY) LTD
.........................................
Applicant
and
JABULANI
NGWANE N.O.
......................................................................
1
st
Respondent
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
........................................................
2
nd
Respondent
NGONIWE
ZANDILE MAPHUMULO
....................................................
3
rd
Respondent
MANDY
N MADLALA 4
th
Respondent
NOMBUSO
MGENGE 5
th
Respondent
BONGEKILE
NDLOVU 6
th
Respondent
MAVIS
THEMBEKA DLOMO 7
th
Respondent
NOBUHLE
F MGENGE 8
th
Respondent
REVIVAL
N NDLOVU 9
th
Respondent
GUGU
P MCHUNU Tenth Respondent
BONGIWE
G NGEMA eleventh Respondent
JABULILE
V MAGCABA
.................................................................
Twelfth
Respondent
QONDENI
MCHUNU
....................................................................
Thirteenth
Respondent
Date
of Hearing: 14 June 2011
Date
of Judgment: 29 June 2011
____________________________________________________________________
JUDGMENT
_____________________________________________________________________
PATHER
A.J
Introduction
[1]
This is an application to review and set aside the first respondent’s
award dated 15 July 2008, made in his capacity as
a commissioner of
the second respondent, and to substitute it with an award to the
effect that the 3
rd
to 13
th
respondents (the
employees) were not dismissed by the applicant, alternatively to
refer the matter back to the second respondent
to be heard before a
commissioner other than the first respondent (the commissioner).
Background
facts
[2]
The employees commenced employment with the applicant at different
times, some as early as 2004. They would usually be allocated
duties
for the day at the applicant’s gate where they waited to be
given work. Sometimes they worked one day per week, other
times, more
than one day, even a full week and sometimes, even overtime in
addition to working a full week. On 24 February 2008,
the employees
were informed that they would no longer be employed from the
applicant’s gate; that they were required to forward
their
names to a labour broking company named Adecco, and that the
applicant would procure their services from this Adecco. The
employees duly went to Adecco but were unable to secure registration
as employees of Adecco. They then returned to the applicant’s
Mr Molwena, who, as supervisor in the applicant’s employ, was
responsible for allocating duties to them at the gate. The
employees
informed Molwena that as the Adecco programme failed to materialise,
he should terminate their services legally. From
the evidence, it
would seem that nothing came out of the meeting between the employees
and Molwena, and as a result, they, the
employees, referred a dispute
relating to their unfair dismissal to the second respondent.
The
arbitration
[3]
At the arbitration hearing before the commissioner, and after
testifying on behalf of the applicant, Molwena was cross-examined
by
Ms Nombuso Madladla, one of the employees who was nominated by the
rest of them to be their representative. It was put to Molwena
that
he had subsequently informed the employees that Adecco had refused to
accept them, as it already had its own pool of employees.
It was
further put to Molwena that he had then informed them that the
applicant had no more work for them. The following exchange
appears
from the record:
“
Answer:
…I called Adecco to come to a meeting with Respondent. We had
an agreement that they would take you and register
you. I gave them
your ID’s and asked them to register you and I told you to go
to Adecco as I would no longer be able to
employ you. You didn’t
come back to me to say Adecco didn’t materialise. Only two or
three people came back to me.
Question: What are (you) going to
say if I say Adecco refused to take us?
Answer: You should have come back
to me to say you experienced problems.
Question: We told you and you
said there was no more job for us and we approached CCMA.”
[4]
Later, testifying for the employees, Madladla stated that they had
gone to Adecco for the whole week at the end of which one
of its
officials informed them that they were not needed as Adecco had its
own employees. She stated further that Molwena had informed
them, the
employees, that the applicant had no more work for them and that they
could “just go and wait at Adecco”.
She had not been
aware that the applicant sourced labour from Adecco.
[5]
It was the applicant’s case at the arbitration hearing that the
employees were not dismissed; that they were only utilised
when their
services were required. The applicant further denied that it had
informed the employees that there was no work for them;
it was only
required that they should register with Adecco.
The
grounds of review
[6]
These are:
“
6.1 By
finding that the issue to be decided between the Applicant and the
Third and further Respondents was whether or not there
was an
employment relationship.
6.2 By finding that the Third and
further Respondents had been dismissed by the Applicant”,
the
commissioner committed reviewable irregularities.
[7]
In its Heads of Argument, the applicant contends that “the
essence of the dispute seems to revolve around a misunderstanding”
between the parties. It was contended that the employees seem to have
regarded the information that they would no longer be recruited
from
the gate but through Adecco, as a dismissal. Mr Pillay on behalf of
the applicants submitted that a senior representative
of the
applicant, (presumably Molwena), had requested that the employees
present themselves at Adecco, to formalise the relationship
so that
the applicant was able to recruit them from Adecco and not from the
gate of the applicant’s premises as in the past.
Referring to
Grogan’s
Workplace Law,
10th ed (Juta,Cape Town 2009),
Part D, Chapter 10 – Dismissal, Mr Pillay argued that a
dismissal occurs when an employer
makes it clear that the employees’
services are no longer required; in this case, no such evidence was
presented to the commissioner.
Referring to various aspects of the
record, Mr Pillay argued that:
There
was no unequivocal termination of the employees’ services by
the applicant;
The
employees had no issue with this fact that contrary to their belief,
they were not dismissed (line 10, page 11 of the Index
to Bundle);
And,
finally at lines 10-14 of page 10, the applicant indicates to the
employees that although it will not be able to employ them
from the
gate in future, Adecco would register them.
[8]
Mr Pillay further referred the Court to the case of
NUCCAWU
v Transnet LTD t/a Portnet.
1
In
this case, casual employees who had contracted under a written
contract of employment were asked to conclude a new contract which
limited their terms of employment. After analysing their status, the
court found:
“
In
effect what we have is that the applicant’s members constituted
a special class of employees; a class of employees who
were not
guaranteed that they would be employed but had the right to be
considered for employment on a day-to-day basis, if respondent
had a
need for them… I come to the conclusion because I believe that
the definition of ‘employee’ in the Act
is wide enough to
include persons who are retained on the books of an employer to
render services albeit on an
ad
hoc
basis.”
2
It
was submitted that the evidence before the commissioner was that the
employees were simply required to register with Adecco,
the labour
broker, after which the applicant would consider them for employment
on an
ad hoc
basis. As such, the employees, so the argument
proceeded, had no right to employment, but merely the right to be
considered for
employment. All that the applicant sought was to
restructure its recruitment of casual labour.
[9]
Arguing for the employees, Mr Jafta pointed to that part of the
record at page 10, lines 16 to 20 of the Index to Bundle, where
the
employees’ version was put to the applicant, namely that the
applicant had informed them in unequivocal terms that there
was “no
more job” for them. He submitted that the case of
NUCCAWU v
Transnet
differed in that in that case, the employees concerned
were employed for 3 days per week in terms of a contract. However, in
the
present case, it was not disputed that the employees were
employees in terms of the Basic Conditions of Employment Act and the
LRA.
Evaluation
[10]
In my view, given the evidence that the employees would, some for up
to seven years, wait at the gate to be called and be allocated
duties
on some days of the week but not always, they therefore, while not
guaranteed employment, had the right to be considered
for employment
as and when the need arose. Accordingly, in terms of their continuing
relationship with the applicant, the employees
had such right to be
considered for employment by the applicant, and no one else. In other
words, the applicant had no right to
unilaterally change the terms of
the relationship so as to avoid its obligation towards the employees,
some of whom had been in
its employ for long periods. If the
applicant had wanted to restructure its operation in relation to the
recruitment of casual
labour, it was entitled to do so, provided it
acted within the parameters of the LRA and consulted with its
employees – be
they permanent or casual. The employees were not
guaranteed employment from the applicant, except on an
ad hoc
basis, which until then suited their needs. However, by insisting
that they register on the Adecco data base before the applicant
could
utilise their services again, the applicant attempted to free itself
of its responsibility towards a class of employee whose
existence it
had encouraged for up to seven years previously. Molwena conceded
that at least some of the employees had informed
him that the Adecco
registration had not materialised. The evidence indicates that he did
nothing to remedy the situation. In the
interim, the employees had
waited for employment via the offices of Adecco to materialise, to no
avail. They ended up without work
for a week, with little or no
prospects of ever obtaining work from the applicant through Adecco,
as the applicant seems to have
assured them. Adecco had informed them
that it had no need for them as it had its own employees. Moreover,
they were unable to
obtain work even on an
ad hoc
basis in
terms of the applicant’s new recruitment policy of not
allocating work to casuals at the gate as all allocations
would in
future be done through Adecco. It was not disputed that the
employees, on returning to the applicant after a fruitless
attempt to
become registered on Adecco’s data base, had been informed that
there was “no more job” for them at
the applicant. While
not guaranteed work from the applicant except on an
ad hoc
basis in terms of the dicta in the NUCCAWU
v Transnet
case
above, the chances of the employees ever obtaining work through the
agency of Adecco, if they had succeeded in being registered
on its
data base, seems remote. After all, Adecco, as an established
operation must surely have had its own reserves of casual
labour for
placements. Therefore, the evidence that an Adecco official informed
the employees that it had no need for them is probable.
In any event,
employment through a labour broker such as Adecco presents its own
challenges for employees, not the least of which
is being placed at a
site at the whim of the labour broker’s clients. Which then
leads to the question: why was it necessary
for the applicant to have
referred the employees to Adecco in the first place if in fact it did
not intend to terminate their services
or if it will continue to
allocate work to them, as stated? If the reason was genuinely to
formalise the recruitment of casual
labour, then apart from
consulting with the affected employees, the applicant would have been
expected to invite Adecco to the
consultation process so as to ensure
that the affected employees were aware of the restructuring, and that
new employment contracts
through the agency of Adecco could be made
available to them. Furthermore, the legal implications of the
proposed new employment
relationship between the employees and
Adecco, intended to replace their relationship with the applicant
would have been explained
fully. As it is, the applicant fobbed them
off to Adecco, who in turn had nothing to offer them. In the process,
the employees
were not being allocated work because of the
applicant’s revised recruitment policy relating to casual
labour; they were
simply left without the prospects of further work
being allocated. In my view, the applicant’s conduct amounts to
a dismissal
of the employees. And, since no procedure was followed
prior to presenting the employees with such a
fait accompli
,
the dismissal was at least procedurally unfair. The applicant cannot
escape liability for unfairly dismissing the employees, simply
because, apart from the statement that there were no more jobs for
them, it chose not to inform them in unequivocal terms that
their
services were being terminated by their having to apply for new
employment with Adecco.
[11]
While it is true that the commissioner exceeded his powers by
deciding that the issue in dispute was whether the employees
were
“employees’ as defined in the LRA, this cannot be said to
have prejudiced the applicant. The commissioner’s
acting
ultra
vires
seems to have arisen as a result of his own doubts about
the relationship, hence his indirectly alluding to the dominant
impression
test in concluding that the employees were “employees”
as defined in the LRA.
[12]
However, based on the evidence presented to him, the commissioner’s
decision that the dismissal was procedurally and
substantive unfair
is without doubt, one that a reasonable decision- maker could have
reached.
[13]
In the premises, I make the following order:
1.
The application is dismissed; and
2.
The applicant is to pay the costs.
PATHER
A.J
Appearances:
For
the Applicant : Adv.P.O.Jafta
Instructed
by : Jafta Incorporated
For
the Respondent : Adv.I Pillay
Instructed
by : Deneyz Reitz Attorneys
1
(2000)
21 ILJ 2288 (LC).
2
Id
at para 6.
7