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[2013] ZALCJHB 115
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Daniels v Standard Bank of South Africa Ltd and Another (JS246/2011) [2013] ZALCJHB 115 (6 June 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG)
JUDGMENT
Not reportable
Case no.:JS246/2011
NEVILLE WISEMAN DANIELS
........................................................................
APPLICANT
and
THE STANDARD BANK SOUTH AFRICA LIMITED
.......................
FIRST RESPONDENT
EOH ABANTU (PTY) LTD t/a HIGHVELD PFS
..........................
SECOND
RESPONDENT
Heard: 26 June 2012
Delivered: 06 June 2013
JUDGMENT
ROCHER, AJ
The Applicant seeks condonation for the late filing of
his Statement of Case in which he initiated alleged unfair dismissal
proceedings
in this Court against First and Second Respondents,
which Statement of Case was filed outside the time frames set out in
Section 191(11)(a)
of the
Labour Relations Act, 1995
, as amended
(“the LRA”). Both the First and Second Respondents
oppose the granting of condonation.
Applicant’s expertise is in the information
technology or IT sector. After certain “pre-contractual”
contact
involving certain telephone calls and an interview between
the First Respondent (hereafter “Standard Bank”) and the
Applicant, the Applicant signed a “Letter of Understanding and
Undertaking” and a “Declaration of Secrecy”
on 5
August 2011 in favour of Standard Bank. Both documents constituted
solemn undertakings by the Applicant to ensure the integrity
of
Standard Bank’s confidential information which Applicant may
come into contact with by virtue of his access to its computer
systems or otherwise.
Intermingled with his dealings with representatives of
Standard Bank, the Applicant also had contact with the Second
Respondent
(hereafter “EOH”) on 3 September 2010 when a
representative of EOH promised to send Applicant a contract of
employment.
On 6 September 2010, the Applicant received two
documents from EOH, namely, a “Confirmation of Contract
Position”
form on EOH’s letterhead and a “Personal
Credential Verification” form on Standard Bank’s
letterhead.
In the Confirmation of Contract Position, the document
indicates that the ‘contract period will be for 01 October
2010
[indecipherable] till 30 September 2011.’ On 7 September
2010, the Applicant received a document from EOH, entitled
“Memorandum
of Agreement – Contingency Employment”.
In the Memorandum of Agreement, EOH indicates that it
is desirous of engaging the services of ‘The Consultant on a
flexible,
atypical basis,’ and refers to the Applicant
throughout as “The Consultant”. In terms of the
Memorandum of
Agreement, the consultant/Applicant is to render
services to EOH’s Client, whom is defined as ‘[EOH]’s
client
to whom The Consultant is rendering services from time to
time’. Nowhere is the identity of the client disclosed. These
documents were all signed by Applicant and duly returned to EOH.
On 23 September 2010, yet further documents were
furnished to the Applicant by EOH on its letterhead, namely a
“Personal
Detail Form”; a “Contractor information
V[F]orm”; and a “Leave Provision Form”. In these
documents,
respectively, Standard Bank and Applicant’s ‘job
description’ were referred to as follows:
Personal Detail Form:
“
Invoicing
Company – Standard Bank”
“
Job
Description – Project Manager”;
Contractor Information Form:
“
Division
– Standard Bank – Africa”
“
Job
Title – Project Manager;
Leave Provision Form:
“
Client
Company – Standard Bank”.
The Applicant started working at Standard Bank’s
premises on 1 October 2010. He rendered service at Standard Bank
from 1
October 2010 until 19 November 2010. On 22 October 2010,
Applicant received a letter from EOH on its letterhead advising him
that:
‘
It is
with regret that we advise you that our client Standard Bank notified
us that your current contract with them will be terminated
on 31
December 2010.
Your relationship with [EOH] is
not terminated and as part of our comprehensive service to our
clients we would like to offer our
assistance in finding a new
position.
If you would like to make use of
our services in this regard, you are welcome to forward your
Curriculum vitae to Jacoline Coetzer
by email at ... Contact number.
..
Please be assured of our
continued service and assistance.’
No reason was given by EOH why ‘[Applicant’s]
current contract with [Standard Bank] will be terminated on 31
December
2010.’
In response, Applicant sought alternative employment
and on or about 12 November 2010, Applicant addressed a letter to
representatives
of both Standard Bank and EOH, giving notice of his
resignation on one week’s notice as follows:
‘
Good
day Derik Espag, Christopher Ross, Nicola de Wet,
Please accept this as my formal
notice of my resignation from the position of Project Manager at
Standard Bank, South Africa, effective
1 week from today. My last
working day will be November 19
th
2010.
It is with sadness that this has
had to happen so soon. Due to circumstances with reference to the
Letter received from [EOH] on
the 22 October (Re: Contract Terminated
at Standard Bank), I have been forced to seek alternate employment.
An opportunity has presented
itself, and due to the limited window of opportunity I have been
requested to commence my new employment
on the 22 November 2010.
I trust that this is in order as
my position has been terminated.
’
The Applicant referred an unfair dismissal dispute to
the Commission for Conciliation, Mediation and Arbitration (“CCMA”)
on 19 November 2010, citing both Standard Bank and EOH in his
referral form. The CCMA enrolled the dispute for conciliation on
17
December 2010, on which date the presiding CCMA commissioner
certified the dispute as unresolved and issued a Certificate
of
Outcome in terms of
Section 135(5)
of the LRA, but solely against
EOH. Only the Applicant attended conciliation.
The Applicant ‘delivered’ his statement of
case, initially, by way of filing by telefax with the Labour Court
on 30
March 2011, although he subsequently filed the original
documents by hand on 4 April 2011. Applicant ought to have delivered
his statement of case by no later than 17 March 2011. The First
Respondent delivered a response to the statement of case on 20
April
2011; and the Second Respondent delivered a Response to the
statement of case on 21 April 2011.
The Applicant launched these proceedings on 16 August
2011 (although Applicant initially sought to apply for condonation
within
the body of the statement of case itself.) The First
Respondent delivered an opposing affidavit on 24 August 2011. The
Second
Respondent delivered an opposing affidavit on 26 August 2011.
The Applicant raised the issue that the Respondents’
responses were late and he is correct in this regard. The issue
in
casu
is whether Applicant’s late
filing of his statement of case ought to be condoned.
In respective of the affidavits opposing condonation,
Standard Bank delivered its opposing affidavit on 24 August 2010;
and EOH
delivered its opposing affidavit on 26 August 2011. Both
opposing affidavits in response to the condonation application were
within the time limits provided for by Rules for the Conduct of
Proceedings before the Labour Court.
As stated, this matter concerns the question of whether
the Applicant ought to be granted condonation for the late filing of
his
statement of case.
1
Legal arguments concentrated on the explanation for the
delay and the prospects of success, or otherwise. It was submitted
on
behalf of Standard Bank and EOH that insofar as the Applicant’s
delay is concerned, his explanation is unacceptable, while
the
Applicant’s attorney conceded that his explanation was
somewhat porous, but sought to rely on what was submitted to
be
Applicant’s good prospects of success against Respondents. As
will be apparent, Standard Bank and EOH also contended
that
Applicant did not enjoy any prospects of success against either
entity, respectively, for different reasons.
While a Certificate of Outcome was issued at
conciliation on 17 December 2010, Applicant referred his dispute to
the Labour Court
on 30 March 2011 and he was, accordingly, thirteen
days’ late. The reasons given by the Applicant for his delay
are that:
15.1 He was advised by the CCMA Commissioner that he
would require legal representation to refer the matter to the Labour
Court,
and that owing to the conciliation having fallen on the eve of
the Christmas and New Year period, most legal firms were closed
during the period;
15.2 During January 2011, he enquired as to the cost of
legal services in such a labour matter from attorneys and rendered
service
to his new employer during February to March of 2011 in order
to have sufficient funds to consult with an attorney, which he duly
did on 11 March 2011;
15.3 He thereafter, on the advice of the attorney he
consulted, attempted to have the Certificate of Outcome amended to
reflect
Standard Bank in addition to EOH without any success
(notwithstanding that 30 days had elapsed from the date of referral
to the
CCMA);
15.4 He had to retrieve previous correspondence and
electronic mails in order to traverse the documentation required,
presumably
for the purpose of drafting the Statement of Case.
The ninety day time period set out in
Section
191(11)(a)
of the LRA is measured in ordinary days and a failure to
comply with that period is equally measured in ordinary days, unlike
those periods set out in the Rules for the conduct of proceedings
before the Labour Court which are measured in Court days.
Standard Bank, in particular, also correctly argued
that one cannot merely examine the ‘post 90-day period’
in assessing
the explanation for a delay, but one must also examine
the ninety day period as a whole, in order to determine whether, in
the
context of the overall period between the date that a
Certificate of Outcome was issued and the ultimate delivery of the
Statement
of Case in the Labour Court, the explanation for the delay
is reasonable and acceptable.
In this regard, given the lack of particularity and
detail for the overall period, I am constrained to find that the
explanation
for the ultimate late filing, by thirteen days, of
Applicant’s Statement of Case is porous, but not so
unacceptable as
to warrant the refusal of condonation on that basis
alone, especially since the delay was short.
Accordingly, it must be determined whether, in this
application, Applicant has
prima facie
prospects of success
against Standard Bank and/or EOH.
Standard Bank denied that it was the employer of the
Applicant and that Applicant was its employee, contending instead
that Applicant
was the employee of EOH and that EOH conducts
business as a ‘temporary employment service’ as provided
for by
Section 198
of the LRA (hereafter referred to as a “TES”).
Standard Bank was therefore the ‘client’ of the TES,
EOH.
Furthermore, Standard Bank contended that the Applicant
resigned from employment with EOH on 12 November 2010 and that such
resignation
ends the matter insofar as it is concerned.
EOH, on the other hand, readily sought to admit that it
was the Applicant’s employer in a TES arrangement with
Standard
Bank, but that Applicant refused their offer of assistance
and placement elsewhere at an alternative ‘client’ of
their TES business, following Standard Bank terminating the contract
position in which Applicant was ‘deployed’.
Subsequently, the Applicant resigned and left the employment of EOH
voluntarily for greener pastures and his conduct does not,
in the
circumstances, meet the definition of a dismissal in
Section 186(1)
of the LRA.
Practically speaking, and as a matter of law, Standard
Bank and EOH effectively argued that between their two defences,
that Applicant
had no prospects of success in a claim against either
Standard bank or EOH.
The Applicant needs to show, given the factual matrix
giving rise to this matter and the defences raised by Standard Bank
and
EOH, a
prima facie
case with prospects of success.
It is trite that the respective defences of refuting an
employer-employee relationship and refuting the existence of a
dismissal
are both good in law if they can be proven. Recently, the
Labour Courts have had occasion to deal with a number of challenging
scenarios relating to atypical employment.
For present purposes,
Section 213
of the LRA, defines
an “employee” as:
(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, and
“employed”
and “employment” have meanings
corresponding to that of “employee”,
And
Section 186
(1) defines a dismissal as:
‘
an
employer has terminated a contract of employment with or without
notice’.
Professor Paul Benjamin, in his article “
An
Accident of History
:
Who is (and Who Should Be) an Employee
under South African Labour Law
” (2004) 25 ILJ 787,
suggests an approach which courts should adopt in interpreting the
statutory definition of ‘employee’.
According to
Benjamin, the presumption of employment as contained in
Section 200A
of the LRA (which in turn arises from the “Dominant Impression
Test”), indicates that there are three primary criteria
for
indicating the presence of an ‘employment relationship’
namely:-
the employer’ right of supervision and control;
the employee forming an integrated part of the
organization of the employer; and
the employee’s economic dependence upon the
employer.
The only exclusion to employment in terms of
Section
213
is an independent contractor, which Benjamin points out is not
defined and, as a result, has maintained its common-law meaning.
Benjamin concludes his 2004 article by stating as follows:-
‘
An
expansive interpretation of the statutory definition [Section 213] of
an employee can be developed without doing any violence
to the
existing language of the definition. Such an interpretation is now
required to comply with the constitutional directive
to construe
labour legislation purposively and in accordance with the primary
objects of that legislation.’
In
Dyokwe
v De Kock NO and Others,
2
the Labour Court was concerned with
whether Dyokwe was employed by a TES, “Adecco”, or
Adecco’s client, Mondi.
In a CCMA arbitration, the
commissioner found that Dyokwe was an employee of the TES, Adecco.
In determining who Dyokwe’s
true employer was,
the
Labour Court held as follows at paragraph 37:-
‘
In the instant case it is
common cause that the employee was being paid by the TES, Adecco,
from July 2003; yet I must approach
the true nature of the
relationship, in circumstances where the workplace and the nature of
the employee’s employment remained
the same for almost nine
years, conscious of the obligation to combat disguised employment
relationships and to examine the substance
rather than the form of
the relationship.’
Steenkamp J
went on to quote Professor Paul Benjamin’s recent publication
entitled:
‘
To
regulate or to ban
?
Controversies
over temporary employment agencies in South Africa and Namibia
’
,
in
Malherbe and Sloth-Neilsen (eds), Labour Law into the Future: Essays
in Honour of D’Arcy du Toit (Juta 2012), which recognised
that
‘it is an entirely superficial construction (and one that
gives rise to immense scope for abuse) to make an agency
the
employer of an employee working on an on-going or indefinite basis
for a ‘client’ merely because the employee’s
pay
is routed through the agency.’
In
Dyokwe,
the Labour Court
held further that on interpretation of the provisions of
Section 198
of the LRA in light of the right to fair labour practices as
envisaged in Section 23 of the Constitution Republic of South Africa
of 1996 that it was against public policy to enforce the contract of
employment with Adecco as that contract of employment resulted
in
unfairness. According to the Labour Court, Adecco neither “procured”
nor “provided” Dyokwe to Mondi
as envisaged in Section
198 of the LRA. Rather, Mondi “provided” Dyokwe to
Adecco and in a swift sleight of hand,
Dyokwe returned to Mondi to
continue his work as before.
Other decisions of the Labour Courts have grappled with
determining whether, on their particular facts, a worker is an
employee
for the purposes of the LRA despite the scheme of
arrangement or contractual provisions indicating to the contrary,
such as in
Denel (Pty) Ltd v Gerber,
3
Pam Golding Properties (Pty) Ltd v Erasmus and
Others,
4
Workforce Group (Pty) Ltd v CCMA and Others,
5
and
Protect a Partner (Pty) Ltd
v Machaba-Abiodun and Others
6
and in slightly different but analogous context,
Southgate v Blue IQ Investment Holdings.
7
In all these cases, the scheme of arrangement utilised
or contractual provisions were subservient to the reality of the
situation.
Based on the respective versions of the parties set out
on affidavit, it is certainly not the case that the broad averment
of
the scheme of arrangement contended for by Standard Bank and EOH
or the contractual provisions actually signed are dispositive
of the
issue; that is to say that it would be impossible to make a finding
that an employer-employee relationship existed between
Applicant and
Standard Bank.
On the factual matrix making up the circumstances of
this case, the engagement of the Applicant, which culminated in him
tendering
service at the premises of Standard Bank for the period 1
October 2010 to 19 November 2010, was by no means straight forward
and instantly dismissible as nothing other than a TES arrangement.
In my view, the Applicant does make out a
prima
facie
case for his employment with Standard
Bank, notwithstanding the written contracts signed between Applicant
and EOH to engage Applicant
as ‘Contractor’ or a fixed
term employee, which scenario, in reality may have constituted EOH
being a ‘remuneration
administrator’. On this state of
affairs, the notice of termination communicated to Applicant by EOH
on 22 October 2010
would constitute a dismissal. In this regard,
SA
Post Office Limited v Mampeule
8
is instructive in the broad category of conduct that
will constitute a dismissal.
In this scenario, Applicant’s ‘resignation’
ex post facto
amounts
to an abbreviation, at Applicant’s instance, of the period of
notice given to him, but cannot alter the fact of
a prior dismissal
while serving out that notice. Much was made of Section 190(2) of
the LRA, which qualifies the “date
of dismissal” as the
earlier of:-
35.1 the date on which the contract of employment
terminated; or
35.2 the date on which the employee left the service of
the employer.
If Standard Bank is established as the employer, the
Applicant has made out a
prima facie
case that his resignation is not the
causa
for the termination of employment. I also do not believe
that Section 190(2)(a) and the decision in
Ndlambe
Municipality v CCMA and Others
9
has application, since the matter did not involve a
non-renewal in the face of a claimed legitimate expectation.
As is plain from the joinder of EOH, the Applicant has
pleaded his case in the alternative to the effect that if the Court
should
find that he was in fact employed by EOH, that, in any event,
the Applicant’s dismissal at the hands of EOH (which must
logically, according to Applicant, be an operational requirements’
dismissal) was unfair in that it failed to consult Applicant
in
terms of Section 189 of the LRA.
If the Court on a trial of these issues were to find
that EOH was the true employer and were to release Standard Bank,
then the
Applicant’s case would still be reliant on the notice
of termination dated 22 October 2010 communicated to Applicant by
EOH as the ‘act of dismissal’. The difficulty with this
notion is that the employment contract between the Applicant
and EOH
is undoubtedly a one year fixed term contract and, moreover, the
Applicant did not aver to the contrary either as against
Standard
Bank or EOH. The Court is therefore constrained to examine how, in
relation to it as the employer, EOH dismissed the
Applicant by
virtue of its letter dated 22 October 2010 and whether a
prima
facie
case of dismissal arises in this regard?
In his affidavit in support of his condonation
application, the Applicant prayed that the contents of his statement
of case be
specifically incorporated into his condonation
application. In his statement of case, the Applicant, in the first
instance, specifically
disavows employment by EOH and avers that he
was, properly construed, the employee of Standard Bank and
specifically denies that
he was dismissed based on the operational
requirements of Standard Bank. Applicant further alleges that
‘[Standard Bank]
is attempting to negate from its duties,
obligations and responsibilities as conferred upon it by the
Labour
Relations Act in
its attempts to have the [EOH] act as employer
under the guise of
Section 198
of the
Labour Relations Act.’
(Applicant
repeats these averments in his affidavit in support of
condonation.)
Applicant further pleads that: ‘If however, the
Honourable Court holds that [EOH] was the Applicant’s employer
at
all relevant times, then and in that event the Applicant requires
confirmation from the above Honourable Court that [EOH’s]
letter, “NWD9” hereto [being, the dismissal notice of 22
October 2010], constitutes a dismissal.’ Read in the
light of
a
lacuna
of supporting allegations to place the letter dated
22 October 2010 in context to be properly construed as a dismissal
at the
hands of EOH, the prospects of that letter serving as notice
of Applicant’s dismissal at the hands of EOH are quite slim.
It appears, on the contrary, to be quite the opposite in that it
confirms their on-going relationship.
In my view, what then arises without further material
allegations being made out, is a resignation by Applicant, on or
about 12
November 2010, insofar as EOH is concerned. In my view, the
Applicant enjoys only poor prospects of success against EOH. Poor
prospects of success and a medicore explanation must be balanced
against the short delay of thirteen days. The only remaining
enquiry
with regard to EOH is whether the balance of prejudice favours EOH
or the Applicant when considering the importance of
the matter. When
all criteria are assessed in this case, the minimal thirteen day
delay is not so excessive as to warrant refusing
condonation, more
particularly as I would grant condonation in respect of the referral
against Standard Bank.
This raises a matter of convenience to the Court and
the remaining litigants. Were I not to grant condonation in respect
of the
referral against EOH, an extremely dissatisfactory and
anomalous situation has the potential to arise, in that, the full
ventilation
of the evidence may reveal better prospects against EOH
and lesser prospects against Standard Bank, without EOH having been
a
party to the trial proceedings.
The Applicant enjoys some prospects of success against
Standard Bank, but the mediocre explanation for the delay equally
applies
to that referral. However, the thirteen day delay is
insufficiently lengthy to warrant refusing condonation in respect of
the
referral against Standard Bank.
It appears to me that in due course, the Applicant can
only make out a successful case against either Standard Bank or EOH.
This
will, no doubt, entail vociferous argument between the parties
concerning the costs of the trial action. To that vociferous debate
should be added the issue of the costs of Applicant’s
condonation application, as the trial Court will be in a far
superior
position to properly apply the requirements of
section 162
of the LRA in determining costs of this application with an overall
view of the matter.
In the premises, the following Order is made:-
1. The Applicant is granted condonation for the late
delivery of his Statement of Case initiating these proceedings in the
Labour
Court as against the First and Second Respondents;
2. The costs of this application in relation to both the
First and Second Respondents are reserved for determination by the
trial
court and insofar as it need be made clear, this is to include
the costs consequent upon the employment of counsel.
_______________
Rocher, AJ
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr M. Hennig
Instructed by: Martin Hennig Attorneys
For the Respondents: Adv P.C Pio
Instructed by: Van der Merwe Attorneys
1
The
test for condonation was set out in the
authority
of
Melane v Santam Insurance Co Ltd
1962
(4) SA 531
(A) at 532 C-F. The
decision in
NUM v Council for Mineral
Technology
[1999] 3 BLLR 209
(LAC) is
also instructive, as is the summary of the applicable legal
principle set out in paragraphs 24 to 29 in
Gaoshubelwe
and Others v Pie Man’s Pantry (Pty) Limited
(2009)
30 ILJ 347 (LC).
2
[2012
10 BLLR 1012
(LC); (2012) 33 ILJ 2401 (LC) at para.37
3
(2005)
26 ILJ 1256 (LAC).
4
(2010)
31 ILJ 1460 (LC).
5
(2012)
33 ILJ 738 (LC).
6
(2013)
34 ILJ 392 (LC).
7
[2012]
8 BLLR 824
(LC).
8
(2010)
31 ILJ 2051 (LAC).
9
(2008)
29 ILJ 2263 (LC).