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[2012] ZALCD 2
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Walljee and Other v Capacity Outsourcing and Another (D451/09) [2012] ZALCD 2; (2012) 33 ILJ 1744 (LC) (1 January 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
Reportable
Of interest to other judges
case no: D451/09
In the matter between:
RUWEYDA
CHANTEL WALLJEE
…..................................................
First
Applicant
TREVEN
RAJOO
….......................................................................
Second
Applicant
MELISSA
MOONSAMY
….................................................................
Third
Applicant
and
CAPACITY
OUTSOURCING
…......................................................
First
Respondent
CONLOG
…...............................................................................
Second
Respondent
Heard
:
22 September 2011
Delivered
:
January 2012
Summary: Application for joinder of second respondent: refused
JUDGMENT
GUSH J
The applicants in this matter referred a dispute concerning their
alleged automatically unfair dismissal by the first respondent
to
this Court for determination. In their application, the applicants
seek retrospective reinstatement alternatively compensation.
The applicants referred a dispute to the CCMA for conciliation. A
certificate of non-resolution was issued and the dispute was
enrolled for arbitration. Before the arbitration commenced a
Commissioner of the CCMA ruled that the CC may not have jurisdiction
in that the applicants alleged that the dismissal was automatically
unfair and were advised to refer the matter to the Labour
Court.
The referral to the Court was made outside the prescribed time
limits and the applicants applied for condonation for the late
filing of the application. The application for condonation was not
opposed and is granted.
Contemporaneously with their application for condonation, the
applicants apply to join the second respondent.
The relevant background relating to the application for condonation
is as follows:
It is common cause as averred by the applicants in their founding
affidavit that they were employed by the first respondent,
who is a
labour broker, and that they performed their duties at the second
respondent's premises. The second respondent is
referred to by the
applicants as the client of the first respondent.
It is further common cause that the second respondent introduced a
policy which precluded deployment by the temporary employment
service of immediate family members of permanent employees of the
second respondent.
The applicants aver that their services were terminated by the
first respondent in accordance with or as a consequence of this
policy.
In support of their application for the joinder of the second
respondent, the applicants rely on the following:
The applicants state that the reason for the dismissal was that
they ‘have family relatives at the workplace’ and
regard ‘the reason to be arbitrary’.
As a result, the applicants maintain that their ‘case is that
the first and second respondents committed an automatically
unfair
dismissal on arbitrary grounds being family relations as provided
for in section 187 (l) (f) of the Labour Relations
Act.’
1
Accordingly, the applicants state that ‘it is important that
the second respondent be joined in these proceedings as
well
because they are the people who seem to have started the issue of
dismissing us on the grounds of family relations...’
2
Mr Jafta in his heads of argument simply repeats these averments and
submits that as a result that the second respondent has
a direct and
substantial interest in the matter it should be accordingly joined.
In opposing the applicants’ joinder application, the second
respondent raised two points in
limine:
viz.
Firstly regarding the citation of the second respondent: The second
respondent records that it's correct citation is Merlin
Gerin (Pty)
Ltd trading as Conlog;
Secondly that the provisions of section 198 of the Labour Relations
Act
3
(LRA) apply.
The second so called point in
limine
goes to the merits of
the application.
It was not disputed that the first respondent is a temporary
employment service and as the applicants were employees of the first
respondent and therefore it is clear that the provisions of section
198 apply.
As a client of the first respondent and in the absence of any
allegation that the first respondent has contravened any of the
provisions of section 198 (4),
4
the second respondent is not jointly or severally liable and cannot
be jointly or severally liable with the first respondent
for the
alleged unfair dismissal. The applicants insofar aver that they were
automatically unfairly dismissed by the first respondent
they are
confined to seeking such redress as the LRA may allow from the first
respondent only. See
Nape v Intcs Corporate Solutions (Pty) Ltd
5
where the court held:
‘
But
for the provisions of this section [198(4)], the person who renders
service could have been regarded as being employed by both
the client
and the labour broker. In some cases, mentioned in subsection (4),
the Act makes the client and labour broker jointly
and severally
liable to the employee but not in cases of dismissal. Where the
employee is dismissed, the employee's cause of action
is only against
the labour broker and not against the client.’
In circumstances, as the second respondent was not their employer
and as section 198 applies and the applicants have no right
of
redress against the second respondent, it cannot be said that the
second respondent has a direct and substantial interest
in any order
this Court may make regarding the applicants’ claim that they
were unfairly dismissed by the first respondent.
There is no just or fair reason why in this matter costs should not
follow the result and I accordingly make the following order:
The applicant’s application for joinder of the second
respondent is dismissed with costs.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANT: P.O. Jafta; Jafta Incorporated Attorneys
SECOND RESPONDENT: I Lawrence; Edward Nathan Sonnenbergs
1
Founding
affidavit para 25 page 11.
2
Founding
affidavit para 26 page 12.
3
Act
66 of 1995.
4
Section
198 (4) reads ‘The temporary employment service and the client
are jointly and severally liable if the temporary
employment
service, in respect of any of its employees, contravenes-
(a) a collective agreement concluded in a bargaining
council that regulates terms and conditions of employment;
(b) a binding arbitration award that regulates terms
and conditions of employment;
(c) the Basic Conditions of Employment Act; or
(d) a determination made in terms of the Wage Act.’
5
(2010)
31 ILJ 2120 (LC) para 42.