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[2012] ZALCJHB 74
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Du Preez v L.S. Pressings CC and Another (J861/11) [2012] ZALCJHB 74; (2013) 34 ILJ 634 (LC) (26 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA
JUDGMENT
Reportable
Case no: J861/11
In the matter between:
JOHANNES LODEWIKUS DU PREEZ
…........................................................
Applicant
and
L.S. PRESSINGS CC
….......................................................................
First
Respondent
DARTINGO TRADING 212 (PTY) LTD
t/a DARTINGO PRESSINGS
…......................................................
Second
Respondent
Heard: 10 July 2012
Delivered: 26 July 2012
JUDGMENT
DODSON, AJ
Introduction
This is an application to join the second respondent in terms of
rule 22 of the rules of this court.
The second respondent opposed the application. However there was no
appearance for the second respondent at the hearing of the
matter,
its attorney having withdrawn shortly before the hearing.
Factual context
The applicant was employed by the first respondent for close on 20
years from 1991 until 23 February 2011.
The applicant was dismissed by the first respondent on the alleged
basis that it was going into liquidation.
The applicant referred a dispute against the first respondent to the
CCMA and subsequently obtained a default arbitration award
from a
commissioner of the CCMA on 28 April 2011 declaring his dismissal to
have been procedurally and substantively unfair and
awarding him
eight months compensation in the sum of R305 263,60. In terms
of the award, the amount was required to be paid
by no later than 20
May 2011.
The award was not honoured by the first respondent. In the course of
trying to enforce the award, as well as a separate award
aimed at
recovering unpaid pension contributions which were required to be
paid in respect of the applicant by the first respondent,
the
applicant has established that-
the first respondent has leased all of its machinery to the second
respondent;
the second respondent has taken occupation of the same premises
that were being used by the first respondent;
the second respondent has employed the majority of the first
respondent’s employees;
although this is disputed by the directors concerned, according to
its letterhead, the second respondent has appointed as two
of its
directors, the former directors of the first respondent;
the second respondent has continued to produce exactly the same
product as that produced by the first respondent; and
The second respondent, on 15 April 2011, addressed a letter to the
first respondent’s clients essentially claiming that
the
first respondent had been liquidated but saying that the second
respondent had taken over exactly where the first respondent
left
off ‘on the same premises with most of the employees from LS
Pressings including the owners of the liquidated LS
Pressings. This
means you get the same on-time delivery, the same competitive
prices, the same fast, responsible service, the
same dedication to
excellence you have come to rely on from LS Pressings… We
expect things to be back to normal …
by July 2011.’
The second respondent attempts, disingenuously, to distance itself
from the first respondent in its answering affidavit. Moreover
there
are contradictions between affidavits provided by the directors of
the second respondent to the police, the affidavit deposed
to in
these proceedings by the managing director of the second respondent
and the letter addressed to clients by the second respondent
referred to above. In particular, there is prevarication about
whether or not the first respondent has in fact been liquidated.
Certainly, no order of provisional or final liquidation is put up by
the second respondent.
The applicant contends that the business of the first respondent has
been transferred to the second respondent as a going concern
as
contemplated in section 197(1) of the Labour Relations Act No. 66 of
1995 (“the LRA”).
This would have the consequence in terms of section 197(2)(c) of the
LRA that, absent a statutorily compliant agreement in terms
of
section 197(6) -
‘
[a]nything
done before the transfer by or in relation to the old employer,
including the dismissal of an employee or the commission
of an unfair
labour practice or act of unfair discrimination is considered to have
been done by or in relation to the new employer’
and in terms of section 197(9) that –
‘
[t]he
old and new employer are jointly and severally liable in respect of
any claim concerning a term or condition of employment
that arose
prior to the transfer.’
The applicant seeks an order ‘joining the second respondent as
a party to this proceeding’.
Analysis
Unfortunately, whilst I have great sympathy for the predicament in
which the applicant finds himself, there are two fundamental
difficulties with the joinder which he seeks.
First, the provision for joinder in rule 22 is plainly a provision
for joinder in proceedings before the Labour Court. In fact,
there
are no proceedings between the applicant and the first respondent in
the Labour Court to which the second respondent can
be joined. What
he has is a default arbitration award from a commissioner of the
CCMA. That award has, according to the applicant,
been subject to
certification in terms of section 143(3) of the LRA which provides
as follows:
‘
An
arbitration award may only be enforced in terms of subsection (1) if
the director has certified that the arbitration award is
an award
contemplated in subsection (1).’
Section 143(1) provides as follows:
‘
An
arbitration award issued by a commissioner is final and binding and
it may be enforced
as
if it were
an
order of the Labour Court, unless it is an advisory arbitration
award.’
(emphasis
added)
The words “as if it were” confirm that the award is not
in fact an order of the Labour Court. Section 143 only provides
a
mechanism for enforcing an award
as if it were
an order of
the Labour Court. Accordingly, there are no proceedings in the
Labour Court to which the second respondent may be
joined.
My view in this regard is borne out by the decision of this court in
Tony Gois t/a Shakespeare’s Pub v Van Zyl and Others.
1
In that case the CCMA refused to consider an application for
rescission of an arbitration award on the basis that the effect
of
section 143(1) along with certification in terms of section 143(3),
was to render the award an order of the Labour Court so
that only
that court could consider a rescission application. The court in
that case held as follows:
‘
[21]
If the third respondent had considered the reasons for the amendments
to the Act it would have realised that the purpose of
the amended
section 143 of the Act was to simplify the process of executing CCMA
awards. The amendments arose out of the recognition
that the process
in terms of section 158(1)(c) was cumbersome. The Labour Court can
now be omitted from the process of enforcing
CCMA awards. The effect
of the second respondent’s ruling is to artificially include
the Labour Court in a process from which
the legislature has chosen
to exclude it. A party against whom an award is handed down by the
CCMA which award is certified cannot
approach this court for a
rescission of the award or rescission of the certification because
there is no order issued by this court
for it to rescind.’
2
Similarly, there are no proceedings before this court to which the
second respondent may be joined.
The second impediment to the relief sought by the applicant in this
matter is the fact that, as matters stand, the proceedings
before
the commissioner of the CCMA are complete and he is
functus
officio
. That precludes a joinder. The purpose of a joinder is
to allow participation in live proceedings. The applicant has put up
authority
to show that joinder of a party may be effected after the
stage of conciliation by a bargaining council or the CCMA.
3
However, in each case, proceedings before the Labour Court were
still pending. There was no final judgment.
The effect of joining the second respondent to the proceedings in
which there is already a default award, without any prior rescission
of the award, and of seeking to hold the second respondent liable on
the basis of the award, would be to allow judgment to be
taken and
enforced against the second respondent without its ever having been
heard.
I am supported in my view by the decision of this court in
Ngema
and Others v
Screenex Wire Weaving Manufacturers (Pty) Ltd
and Others
.
4
There, a joinder was sought after judgment had been given both in
the Labour Court and in an appeal to the Labour Appeal Court.
Lagrange J held as follows:
‘
[22]
In
Amalgamated
Engineering Union v Minister of Labour
,
the Appellate Division recognized that joinder of an interested third
party even at the appeal stage was not inappropriate and
could be
ordered
mero
motu
by the appeal court. It must be emphasized that the court in that
case was addressing the question of joinder occurring before
judgment
was passed. It is not correct, as the applicants submit, that joinder
may take place after judgment has been handed down.
The case of
Mokoena
& Others v Motor Component Industry (Pty) Ltd & Others
(2005) 26 ILJ 277 (LC) cited by the applicants does not support their
argument, because that case concerned an application for
joinder of
parties who had not participated in conciliation proceedings.
[23] The core principles
underlying the requirement of joinder were summarized in the AEU
judgment as follows:
“
Indeed
it seems clear to me that the Court has consistently refrained from
dealing with issues in which a third party may have a
direct and
substantial interest without either having that party joined in the
suit or, if the circumstances of the case admit
of such a course,
taking other adequate steps to ensure that its judgment will not
prejudicially affect that party's interests.”(footnote
omitted)
[24] Even if the second
respondent could not have disputed the fairness of the dismissals, it
ought to have been heard on the question
of relief, which after all
is something that could directly affect it and not merely in a
financial sense.
…
[28] In the light of the
analysis above, I am not satisfied that I can simply substitute the
second respondent for the first respondent
in the judgment of the
Labour Appeal Court, if indeed the Labour Court has the power to do
so.
…
[31] The result is far from
satisfactory since the applicants do have a judgment in their favour,
but that does not allow this court
simply to ignore the principles of
joinder and the case authority in terms of which the new employer
needs to be cited as a respondent
in litigation where a transfer of a
business as a going concern has taken place after a dismissal.
Insofar as the applicants might
have had a remedy that remedy does
not lie in dealing with the matter by way of a substitution of
parties ordered by the Labour
Court after the LAC proceedings have
been concluded.’
5
It is so that the applicant indicated from the bar that future
unspecified proceedings to enforce the applicant’s rights
in
terms of section 197 are contemplated. I am of the view that that is
the time when the second respondent should be joined.
In the circumstances, I make the following order:
The application for the joinder of the second respondent is
dismissed.
No order is made as to costs.
________________
DODSON AJ
Acting Judge of the Labour Court
APPEARANCES
:
For the applicant: Ms M Howells of Goldberg Attorneys
1
[2003]
11 BLLR 1176
(LC).
2
Id
at para 21.
3
Mokoena
and Others v Motor Component Industry (Pty) Ltd and Others
(2005) 26 ILJ 277 (LC) at 280A-B;
NUMSA obo
its Members v Steinmuller Africa (Pty) Ltd
(JS
758/10) [2012] ZALCJHB 13 (16 February 2012)
.
4
(2012)
33 ILJ 681 (LC).
5
Id
at at paras 22-31.