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[2013] ZALCJHB 7
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Borotho v Royal Serve Cleaning (Pty) Ltd and Another (JS 1138/11) [2013] ZALCJHB 7 (23 January 2013)
THE
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Of interest to other
judges
Case no: JS 1138/11
In the matter between:
BOROTHO NALEDI
..............................................................................................
Applicant
and
ROYAL SERVE CLEANING
(PTY) LTD
.................................................
First
Respondent
ROYAL SERVE CATERING
(PTY) LTD
.............................................
Second Respondent
Heard: 15 October 2012
Delivered: 23 January
2013
Summary: Application
for joinder - application to lift the corporate veil.
JUDGMENT
MOLAHLEHI J
Introduction
After his unfair
dismissal claim was dismissed by the Commission for Conciliation,
Mediation and Arbitration (the CCMA), the applicant
launched the
same claim in this Court. The Commissioner found that the CCMA
lacked jurisdiction because there was no employment
relationship
between the applicant and the first respondent.
The late filing of the
heads of argument by both parties were condoned.
The parties have made
several interlocutory applications following the filing of the
applicant’s claim with the Court. Firstly,
the first
respondent filed an exception to the applicant’s claim,
contending that the statement of claim is vague and embarrassing.
The applicant then filed
application seeking the following order:
‘
a)
Directing that the exception proceedings be suspended pending
finalisation of the hearing on the application for condonation;
b) Directing that the
exception proceedings be suspended pending finalisation of the
hearing on the application for the joinder
of Royalmnandi (Pty) Ltd
c) That the costs of this
application be costs in the cause;
Part 2
d) Directing that the
applicant be granted condonation for the late filing of the amended
statement of claim;
e) That the costs of this
application be costs in the cause.
Part 3
f) That the Applicant be
granted leave to file the amended statement of claim in the form in
which is set out in …applicant’s
affidavit;
g) That Royalmnandi Food
Services Solutions (Pty) Ltd be joined as First Responded herein;
h) An order directing
timelines to be followed by the parties in this matter in respect of
service and filing of further court documents
to be exchanged between
the parties;
That the costs of this
application be costs in the cause.’
In addition to applying
to have the arbitration award made an order of the Court in terms of
section 158(1) (c) of the LRA, the
first respondent has also raised
a special plea of
res judicata.
Background facts
The applicant commenced
employment with Royal Serve Cleaning (Pty) Ltd as a General Manager
on 01 November 2008. Royal Serve (Pty)
Ltd and Royal Serve Catering
(Pty) Ltd merged and the applicant was appointed as the National
Supply Chain Manager for Royal
Serve (Pty) Ltd.
The company split in
January 2011 and Mr McGregor, the Chief Executive of Royal Serve
Catering (Pty) Ltd offered the applicant
position of Commercial
Executive within the catering company. The applicant accepted the
position on 17 January 2011 but on or
about 21 February 2011, he
wrote a letter to the company in which he requested to decline the
position as it was too stressful
and impacting on his health.
When the applicant could
not find a less stressful job in the catering company, he approached
the sister company, Royal Serve
Cleaning (Pty) Ltd for a position.
The position that was available was that of a project manager which
carried a salary of R15
000 lower than the position he held at a
catering company. As a result, the applicant was unable to accept
the position offered
to him.
When it was evident that
the applicant was not amenable to accepting the position of a
Project Manager, Royal Serve Cleaning (Pty)
Ltd instituted
retrenchment proceedings. The first respondent terminated the
contract of employment on 13 May 2011 on the basis
of operational
requirements.
On 16 May 2011, the
applicant declared a dispute at the CCMA, alleging substantive and
procedural unfair dismissal. Following
unsuccessful conciliation,
the matter was referred to arbitration. The outcome of the
arbitration hearing was that Royal Serve
Cleaning (Pty) Ltd was not
the employer of the applicant when it dismissed him. The
Commissioner concluded that Royal Serve Cleaning
(Pty) Ltd did not
have requisite
locus standi
to dismiss the applicant as there
was no employment relationship between the two. The Commissioner
ruled for this reason that
the CCMA did not have jurisdiction to
entertain the dispute.
On 20 December 2011, the
applicant filed with the Court the current claim based on the same
cause of action as that which served
before the arbitration
proceedings.
Issues for this
Court’s determination
In my view, the two
issues that require an answer above all others are: the joinder
application and the application to have the
arbitration award made
an order of the Court.
I deal firstly with the
application to make the arbitration award an order of Court. The
Commissioner who considered the unfair
dismissal claim made the
following award:
‘
[73]
Royal Serve Cleaning Ltd did not have the requisite
locus
standi
to dismiss the applicant as there was no employment relationship
between the two parties.
[74] CCMA accordingly has
no jurisdiction in the matter in the absence of an employment
relationship.’
Turning to the issue of
making the arbitration award an order, it is trite that the Court
has the power to make an arbitration
award an order in terms of
section 158(1) of the LRA. Section 158 (1) (c) of the LRA reads as
follows:
‘
(1)
The Labour Court may-
....
(c) make any arbitration
award... an order of the Court.’
In deciding to make or
refuse to make an arbitration award an order, the Court has
discretion to exercise which is to be exercised
judicially. In
general applications that come before this Court to have arbitration
awards made orders are those relating to
compensation or
reinstatement of an employee. The essence of those applications is
to enforce the arbitration award where the
other has failed to
perform what he or she has been directed to do by the arbitrator.
The general principle, however is that
any arbitration award can be
made an order of the Court.
In its founding
affidavit, the first respondent says that it is seeking to make the
arbitration award an order of the Court because
the applicant has
instituted a claim against it on essentially the same basis as those
upon which the CCMA determined that there
was no case against it.
The first respondent further contends that the applicant has ignored
the arbitration award.
In the supplementary
heads of argument, the first respondent contends that the applicant
has failed to make out a defence in his
opposition to the
application to make the arbitration award and order of the Court and
that he does not have prospects of success
in the review
application.
In the present case, the
order sought in the application is not for the purposes of enforcing
the arbitration award but to achieve
the goal of creating the basis
for a pleading of
res judicata
, because once the award is
made an order of Court, the legal status of the arbitration award
changes to become an order of the
Court and can therefore not be
challenged on review.
As a general principle,
the Court makes arbitration award orders for the purposes of
enforcement in instances where the other
party has failed to comply.
It is clear, in the present instance, that the underlying purpose of
the application is not enforcement
but something else. It is for
this reason that I believe that I should exercise my discretion
against making the arbitration
award an order of the Court.
Joinder application
The applicant in his
joinder application says that he launched the application for
joinder after he received the first respondent’s
exception.
His contention is essentially that the arbitration award should for
the purpose of considering his joinder application
be ignored
because it is a nullity. The applicant contends that the arbitration
award is a nullity because the Commissioner did
not consider that
which he was required to do, which was the fairness of the
dismissal.
An application for
joinder is governed by the provisions of rule 22 of the Rules of the
Labour Court, which gives the Court the
power to join any party to
the proceedings before it, if the right to the relief depends
substantially on the same question of
law or facts.
It is trite that the
test to apply in considering whether a party should be joined in
proceedings is whether the party sought
to be joined has
“substantial interest in the subject matter of the
proceedings. It follows that the Court can only join
a party in a
matter that is properly before it.
The applicant’s
joinder application is based on the strength of the unfair dismissal
claim which he has filed with this
Court. That claim is the same as
the one upon which the Commissioner has ruled that that CCMA did not
have jurisdiction because
the first respondent is not the employer
of the applicant. There is some indication that although late, the
applicant has filed
an application to review and set aside the
arbitration award. The applicant contends that for the purpose of
joinder, the Court
should ignore the arbitration award because it is
invalid and did not deal with the substance of the claim which was
before the
Commissioner, namely his unfair retrenchment.
In terms of section 143
of the Labour Relations Act, an arbitration award is final and
binding until set aside on review or is
rescinded. It is also a
principle of our law that decisions of public officers, such as
Commissioners of the CCMA are binding
even if they are invalid
unless and until they are set aside on review or on rescission.
In the present instance,
the arbitration award in terms of which it was found that the first
respondent is not the employer of
the applicant is still to be
reviewed as would appear from the papers before this Court. There is
no need for the purposes of
considering the joinder application to
express any view regarding the prospects of success of the review
application, including
the prospects of succeeding with the
condonation application as it would appear that the review, if at
all filed, is out of time.
In my view, the
jurisdiction of the Court is temporarily ousted pending the outcome
of the review of the arbitration award. It
follows therefore that
there is no basis upon which the second respondent can be joined
with the first respondent at this stage.
Accordingly, the
applicant’s joinder application stands to fail.
As concerning the costs,
I am of the view, in the circumstances of this case, that no order
as to costs should be made.
Order
In the premises, the
following order is made:
The application to
make the arbitration award an order of the Court is dismissed
The application to
join the second respondent is dismissed.
There is no order as
to costs.
____________
Molahlehi J
Judge of the Labour Court
of South Africa
APPEARANCES:
For the Applicant: In
Person
For the Respondent: Adv.
Jason Brickhill
Instructed by Ramantsi
Attorneys