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[2012] ZALCJHB 92
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Total SA (Pty) Ltd v National Bargaining Council for the Chemical Industry and Others (JR 1854/09) [2012] ZALCJHB 92; (2013) 34 ILJ 1006 (LC) (31 August 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
reportable
case no: JR 1854/09
In the matter between:
TOTAL
SA (PROPRIETARY) LIMITED
......................................................
Applicant
and
NATIONAL BARGAINING COUNCIL
FOR THE CHEMICAL INDUSTRY
.................................................
First
Respondent
LYNCH, DESMOND
N.O
..........................................................
Second
Respondent
LIMO
ILUNGA KALAVUANDA
.....................................................
Third
Respondent
Heard: 7 February 2012
Delivered: 31 August 2012
Summary: Review of ruling that the third respondent was an
employee. Issue- the true nature of the relationship between the
parties.
JUDGMENT
Molahlehi J
Introduction
This is an application to review the ruling made by the second
respondent under case number GPC HEM410 – 08/09 dated 30
June
2009. The issue, which was before the Commissioner, concerned the
point in
limine
regarding the employment status of the third
respondent. The Commissioner found contrary to the applicant's
contention that the
third respondent was an employee.
Background facts
It is common cause that the parties concluded an oral agreement
during 1999 in terms of which the third respondent was to provide
French lessons to those employees of the applicant who needed
training in that language.
It is common cause that the contract concluded in 1999 was
characterised by the third respondent in his answering affidavit as
being "more casual," and the job was rendered "as and
when required." The situation according to the third
respondent
changed as the groups of employees requiring training increased.
According to him, the employment relationship was
formalised as the
number of the trainees increased. As a result of the formalisation
of employment relationship, the status changed
to that of an
employee. The third respondent says that he received an electronic
access card, an employee number and month deduction
from his salary
as from 1 November 2002.
In terms of the agreement, the third respondent was required to
provide invoices at the end of every month for the lessons provided.
The third respondent contends that the invoices were required to
show the hours of work and the number of students taught. In
this
regard, he contends that he believed that he was an employee because
of his monthly salary payments, the breakdown of which
reflected
payslip and the tax deductions and UIF.
The third respondent, however, conceded that he had to submit
travelling claims as reimbursement for travelling expenses. He
further conceded that he had to submit invoices for the French
translations but contends that that did not change the nature
of the
relationship because that was done outside his normal duties as an
employee. As concerning time for reporting for work,
the respondent
contended that he worked flexitime, which was controlled by the
applicant.
The third respondent attributes the reason for his dismissal to the
fact that the CEO employed his wife to do the work that he
was
doing. According to him, it was only after the employment of the
CEO’s wife that complaints were raised regarding his
invoices
including timesheet.
The applicant contends that the third respondent was never employed
as an employee. According to the applicant, the reason for
the third
respondent to receive a payslip, and deductions of from his salary
was because of an error in 2006 when the applicant
implemented a new
technology system in seeking to comply with the new taxation
legislation which required that tax deductions
be effected for both
employees and independent contractors. In other words, the third
respondent was loaded to the system, resulting
in UIF contributions
also been deducted from his salary. The applicant further contends
that the third respondent could not be
regarded as an employee for
the following reasons:
“
16.1 The amount which Kaluanda invoice the
Applicant for French lessons provided fluctuated from month to month
and was never a
fixed sum and was based purely on a number of hours
worked.
16.2 Kaluanda was never restricted by the Applicant to offer lessons
to other people were not employed by the Applicant.
16.3 Kaluanda would not have invoice the Applicant for translating a
French document into English had he been an employee.
16.4 Kaluanda was not required by the Applicant to work a certain
number of hours per day.
16.5 The Applicant did not diligently the times that Kaluanda would
report to work and part.
16.6 Kaluanda was not required to report any employee at the
Applicant and there was no control supervision in the way that the
he
provided the French lessons.
16.7 Kaluanda was under no obligation to, and did not, informed the
Applicant when he was on leave and never formally applied for
leave.
When Kaluanda did not render a service he was not paid.
16.8 The new system of the applicant, which Kaluanda was erroneously
on, automatically at on leave to anyone Ward is on the system.
This
does not mean that Kaluanda was entitled to leave. In any event,
Kaluanda knew that he was not entitled leave as he was not
an
employee and never applied for leave hence the unusually high number
of leave days reflected on the immune system and payroll
document
handed to him.
16.9 If he was an employee, Kaluanda would not have billed the
Applicant for travelling to and from the Applicant’s offices.
16.10 Kaluanda did not make use of the applicants facilities in the
form of telephones, computers and e-mail which are facilities
provided to all employees of the Applicant.
16.11 All the employees of the applicant received a medical eight
benefit which is not reflected on the document issued by the
payroll
department to Kaluanda because he was not an employee.
16.12 If Kaluanda wish to obtain further assistance of other
individuals in providing the French lessons he was not precluded from
doing so."
Grounds for review.
The applicant contends that the Commissioner committed gross
misconduct in relation to his duties as an arbitrator by excluding
or disregarding the relevant evidence, including failing to apply
his mind thereto.
The applicant further contends that the decision reached by the
Commissioner is one which a reasonable decision maker could not
reach.
In the supplementary affidavit, the applicant contends that the
Commissioner misdirected himself, in finding that the third
respondent had discharged the onus of establishing that an
employment relationship existed between him and applicant.
The ruling
In arriving at the conclusion that the third respondent has
discharged his onus on showing the existence of the employment
relationship, the Commissioner states that the person is presumed to
be an employee if the following factors are established:
“
a) The manner in which the person works is
subject to the control or direction of another person.
b) The person’s hours of work are subject to control and
direction
c) The degree of integration with the present organisation.
d) The person has worked for that other person for an average of at
least 40 hours to month over the last 3 months
e) The person is economically dependent on the other person for who
he or she works or render services
f) The person is provided with the tools of trade work equipment by
the application
f) The person is provided with the tools of trade or work equipment
by the other person
g) The person only works for or render services to one person.”
The Commissioner reasoned that he was left with a dominant
impression from the submissions of the parties that the third
respondent
was an employee for the following reasons:
“
His degree of integration within the
respondent’s organisation was considerable.
He had employee number, tax and UIF been deducted, and received a
payslip.”
Evaluation
The key issue in this matter concerns the jurisdiction of the
bargaining council to entertain the dispute which had been referred
to it by the respondent.
It is now trite that bargaining councils being creatures of statutes
like the CCMA cannot determine their jurisdiction. The power
to
determine whether a bargaining council has jurisdiction lies with
the court. In jurisdictional reviews, the court is not faced
with
having to determine the reasonableness or otherwise of the ruling
but rather whether the facts as were presented point towards
the
existence of an employment relationship between the parties.
1
The court has over the years applied various tests in determining
the complex issue of whether the true relationship that exists
between the parties is that of employment. In seeking to address
this issue, the legislature defined the word “employee”
as follows:
2
‘
(a)
any person, excluding an independent contractor, who works for
another person or for the State and who receives, or is entitled
to
receive, any remuneration; and
(b) Any other person who in any
manner assists in carrying on or conducting the business of an
employer.’
The authorities are in agreement that the label that the parties
generally place on the nature of the relationship is not helpful.
It
is the realities of the relationship that has to determine the true
nature of the relationship.
3
In
State Information Technology Agency
,
4
the court per Davis JA, held that when determining the question of
an employment relationship the following criteria should be
applied:
‘
1 an
employer's right to supervision and control;
2 whether the employee forms an
integral part of the organization with the employer; and
3 the extent to which the
employee was economically dependent upon the employer.’
Turning to the facts in the present case, it has been indicated
above that in 1999 when the oral agreement was concluded between
the
parties, the relationship was that of an independent contractor. The
dispute as to the nature of the relationship seems to
have arisen
later when the applicant introduced technology-based employment
system.
The applicant says that the third respondent was in error loaded
onto the system. It was however contended on behalf of the applicant
that it was never intended that the relationship between the parties
was to change from that of an independent contractor to
that of
employment.
Whilst I agree with the third respondent that the use of payslips,
PAYE and UIF deductions are factors that may point towards
an
employment relationship, that does not constitute conclusive
evidence of the true nature of the relationship. Similarly, as
has
been stated, in a number of decisions of the court non usage of
payslip or PAYE and UIF deductions are not indicative of
the true
nature of the relationship.
The objective analysis of the facts of this case reveals that
contrary to the contention of the respondent there existed no
employment relationship between the parties for the reasons set out
here under.
The third respondent does not deny that he was paid on the basis of
invoices submitted for the French lessons provided and this
fluctuated from month to month. Whilst the third respondent may not
have offered his services to any other person, he does not
say that
he was prohibited to do so in terms of the agreement or by the
applicant. The third respondent does not dispute the
contention of
the applicant that he was free to do other work. There is no
evidence in this regard that the third respondent
was economically
dependent on the applicant.
It seems to me strange that the third respondent, who on his own
version was employed on a flexitime basis, was entitled to receive
payment from the applicant as and when he did, French translations
would say he was an employee. This is so more particularly
when
regard is had to the hours of work for third respondent which was
determined by the availability of students. Except for
saying that
his time of arrival and departure was controlled by the applicant’s
employee Ms Raditladi, there is insufficient
evidence to show the
extent of control over him by the applicant. There is also no
evidence as to whether the supervision entailed
supervising him on
the work he was performing.
It would seem that the applicant was accountable to Ms Raditladi for
the purposes of the performance of the terms of the contract
between
the parties. It would further seem that he had to make students to
sign attendance register as part of proof of delivering
such a
service.
On the basis of the above, I am of the view that the respondent has
failed to produce sufficient evidence to show that he was
an
employee and not an independent contractor. It is for this reason
that I find that the third respondent was not an employee
but an
independent contractor and therefore the first respondent did not
have jurisdiction to entertain his dispute.
I do not, however, belief that it would be fair to allow the costs
to follow the results.
Order
In the premises, the following order is made:
The second respondent’s ruling that the third respondent was
an employee is reviewed and set aside
The second respondent’s ruling is substituted with the
following ruling:
“
1. There was no employment relationship
between the parties and accordingly the first respondent does not
have jurisdiction to entertain
the applicant’s dispute.”
There is no order as to costs.
_______________________
Molahlehi J
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Edward Nathan Sonnenberg Attorneys
For the Respondent: De Haan Denton Attorneys
1
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008) 29 ILJ 2218 (LAC). As to the status of the rulings made by
bargaining council panellists and the CCMA Commissioners concerning
jurisdiction
see Workforce Group (Pty) Ltd v CCMA and Other
s
(2012) 33 ILJ 738 (LC) at para 2.
2
See
section 213
of the
Labour Relations Act of 1995
.
3
See
SA Broadcasting Corporation v Mckenzie
(1999) 20 ILJ 585
(LAC) at para 9.
4
(2008)
29 ILJ 2234 (LAC) at para 12.