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[2014] ZALCJHB 43
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Muller v Masscash Holdings (Pty) Ltd and Others (J1116/2012) [2014] ZALCJHB 43; [2014] 6 BLLR 594 (LC) (25 February 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE NO: J1116/2012
In the matter between:
JOHAN ANDRE
MULLER
Applicant
and
MASSCASH HOLDINGS
(PTY)
LTD First
Respondent
CCW WHOLESALERS (PTY)
LTD Second
Respondent
KLERKSDORP CASH AND
CARRY Third
Respondent
Heard:
14 November 2013
Delivered:
25 February 2014
Summary:
Clear dispute of fact in application. Application dismissed.
JUDGMENT
GUSH J
[1]
The applicant in this matter applies for an
order:
a.
1.
declaring the third respondent to have been his employer at all
material times
;
b.
2.
declaring that the applicant’s contract of employment with the
third respondent
is still in existence; and
c.
3.
directing the first respondent to pay the applicant his remuneration
and benefits
with retrospective effect from 4 July 2011;
Alternatively ordering the first respondent to pay the applicant his
remuneration
benefits for the period 4 July 2011 up to and including 14 September
2011;
d.
4.
“that the third respondent, alternatively the first respondent
further
alternatively both third and first respondent shall forthwith
reinstate the applicant in his position as manager of the third
respondent
and comply with [his] contractual rights and permit the applicant to
comply with his contractual obligations.
[2]
After the respondents had filed their
answering affidavits, the applicant filed his replying affidavit to
which was annexed an amended
notice of motion. The amendment
comprised the addition of a further alternative prayer to payer 2
above for an order declaring
the termination of the applicant’s
contract of employment with the third respondent to be unlawful.
[3]
In the absence of any application to amend
the notice of motion, the respondents opposed the amendment and the
applicant withdrew
the amended notice of motion, only to immediately
thereafter file a Notice of Amendment seeking to amend his
application by including
the alternative prayer that the termination
of his contract of employment with the third respondent be declared
unlawful.
[4]
All three respondents are all private duly
incorporated companies and accordingly separate entities and all
oppose the applicant’s
application.
[5
]
In
his founding affidavit, the applicant avers that he was an employee
and manager of the third respondent as well as a shareholder
and
director of the third respondent. The applicant attaches to his
affidavit a copy of the shareholders agreement and a copy of
his
latest contract of employment that was signed and dated by the
applicant on 28 November 2008.
[1]
The contract of employment clearly reflects that the third respondent
is the employer and the applicant the employee. It is common
cause
that the applicant was a director and shareholder of the third
respondent.
[6]
On 18 April 2011, the applicant was handed
a letter suspending him pending a disciplinary enquiry into alleged
misconduct. The suspension
letter was handed to the applicant by a Mr
Greg Smith is the first respondent regional operations manager. The
applicant records
that he assumed that Smith had the necessary
authority to suspend him.
[7]
Whilst the applicant did not go into the
details of the disciplinary charges, it appears from the “summons
to attend a disciplinary
enquiry” that the misconduct the
applicant was accused and found guilty of related to incidents
involving irregularities
with relation to management of the third
respondents stock. T
[8]
The applicant participated in the disciplinary enquiry that was
presided over by an attorney who was an employee of a firm of
attorneys who acted for the first respondent. At the conclusion of
the enquiry the chairperson of the enquiry recommended that
the
applicant be dismissed. The applicant appealed against this
recommendation of dismissal which appeal was heard by a Mr von
Fintel
a regional manager employed by the first respondent. The applicants
appeal was unsuccessful and the applicant was dismissed.
[9]
The applicant mentions in his affidavit,
almost in passing, that he referred an unfair dismissal dispute to
the CCMA which dispute
remains unresolved. It appears that in this
referral, inexplicably, the applicant cited the first respondent as
his employer and
alleges that he had been unfairly dismissed by the
first respondent. The applicant attempts to explain this by
suggesting that
he did so prior to being advised by his "legal
counsel" of his "true legal position", presumably that
he was
employed by the third respondent.
[10]
The applicant attaches to this affidavit a
disciplinary code and procedure that he disputes had been
incorporated into his contract
of employment with the respondent and
lists aspects of the procedure set out therein that he avers had not
been complied with.
These are all issues which probably fall within
the ambit of an unfair dismissal dispute in respect of which the CCMA
has jurisdiction.
[11]
The applicant however continues to aver that if the disciplinary
procedure applies to his employment he challenges his dismissal
on
the grounds that neither Smith nor any human resource of visual of
the first respondent enjoyed the prerogative to decide whether
or not
to take disciplinary action against him as they did not form part of
the management of the third respondent.
[12]
The applicant’s averment appears to
be that he was dismissed pursuant to disciplinary proceedings
instituted against him by
the first respondent, and not the third
respondent and that the first respondent was not entitled to dismiss
him and in the circumstances
he was not properly or lawfully
dismissed by the third respondent. Accordingly the applicant avers
that he remains an employee
of the third respondent.
[13]
In support of his averment that he was not
properly or lawfully dismissed by the third respondent, the applicant
relies primarily
on his averment that by virtue of his shareholding
and directorship of the third respondent and specifically by virtue
of his contract
of employment that he was subject only to the
authority of the board of directors and only the board of directors
could terminate
his employment.
[14]
The further averments advanced by the
applicant that relate to his belief that he was under the
misapprehension that "the first
respondent enjoyed disciplinary
prerogative" over him and that the chairperson of the
disciplinary enquiry was an attorney
employed by the first
respondent's attorneys are merely statements made by the applicant in
his affidavit
[15]
As far as the issue relating to the outcome
the disciplinary enquiry was concerned and in particular the
chairperson of the enquiry’s
decision to recommend that he be
dismissed, it is clear that the applicant participated in the enquiry
and having been given the
opportunity to appeal the outcome did so.
The applicant complains that the chairperson of the disciplinary
appeal "upheld
the decision of dismissal taken at the
disciplinary enquiry” whereas in fact it was merely a
recommendation.
[16]
In support of his averment that he was not
dismissed by the third respondent, the applicant avers that the
person who suspended
him and was instrumental in the charges of
misconduct been brought against him Mr Gregory Smith (who deposed to
the respondents
opposing affidavit) did not have the "prerogative
to decide whether or not to take disciplinary action" against
the applicant
as they did not form part of the management of the
third respondent.
[17]
In support of his application, the
applicant annexed to his founding affidavit his contract of
employment. The contract is attached
supporting the averment "in
terms of my contract of employment further, I was subject only to the
authority of the board of
directors of the third respondent company".
The heading of this contract specifically provides that it is an
agreement entered
into between the third respondent and the
applicant. Despite the applicant’s so-called misapprehension as
to who had "disciplinary
prerogative", it could not be any
clearer that at all times the applicant was employed by only the
third respondent.
[18]
That
however is not the applicant’s only difficulty with regard to
his contract of employment. The definitions clause apart
from the
somewhat confusing definition: "anyone gender include the other
two genders" employees is defined as the employee
referred to
the heading of the agreement. A careful perusal of this contract
reveals that the averment by the applicant that "in
terms of my
contract of employment further, I was subject only to the authority
of the board of directors of the third respondent
company” is
without any foundation at all. In fact the only clause in the
contract that remotely deals with this issue is
clause 6.20 that
provides that the employee shall "obey the orders and directors
of the board and any duly authorised officer
or official of the
company, show carry out such functions and duties as are from time to
time assigned to him ...”
[19]
It is unclear from the applicant’s
affidavits on what basis he had joined the first and second
respondents. He seeks no damages
from the first respondent whom he
appears to regard as the entity that dismissed him but startlingly
asks the court to order the
first respondent to pay his remuneration
and benefits with effect from the date of his purported dismissal.
This is particularly
surprising as in the in the prayer immediately
before this, the applicant asks the court to declare the applicant’s
contract
of employment with the third respondent to be still in
existence. There is nothing in the application that in any way
remotely
links the second respondent to the relief sought by the
applicant.
[20]
Taking into account the respondents’
answering affidavit, it is clear that the first respondent denies
having been instrumental
in the applicant’s dismissal. The
deponent to the answering affidavit Mr Smith confirms his role in the
applicant’s
dismissal and avers that he was acting duly
authorised by the third respondent. This averment is confirmed by the
third respondent’s
managing director.
[21]
Prima facie
,
taking into account the applicant’s founding and replying
affidavits, the annexures attached to his application and the
respondents’ answering affidavit, the applicant’s
application seems devoid of all merit. The applicant annexes to his
affidavit his contract of employment. Not only does the applicant
offer the spurious unsupportable proposition that in terms of
his
contract, he was subject only to the board of directors, the
applicant fails to explain on what basis he appeared to be unclear
as
to who his employer was. This is particularly surprising as it is
clear from the contract that the applicant was a senior managerial
employee. It is inconceivable that the applicant was unaware of who
his employer was and who was “dismissing “him.
[22]
A disturbing aspect of the applicant’s
case is the relief he seeks. I have referred to the incomprehensible
decision to join
the first and the second respondent. The second
respondent is mentioned in passing as a shareholder of the third
respondent but
that does not feature at all in the relief sought. The
applicant firstly prayed for an order declaring the third respondent
was
his employer when this is obvious from the contract of employment
that the applicant himself is attached to his papers. I. Secondly
the
applicant’s prayer for an order declaring his contract with the
third respondent to still be in existence is followed
with a prayer
for an order directing the first respondent to remunerate him for the
period from the date of his dismissal to date
of payment.
[23]
The applicant’s confused logic
persists in the applicant’s notice of Amendment in which he
seeks, as an alternative
to the declaration that he is still employed
by the third respondent, an order declaring his dismissal to be
unlawful. Not The
crucial issue however is that it is abundantly
clear from the applicant’s papers is that there are clear and
unavoidable
disputes of fact that cannot be resolved on affidavit.
The most fundamental of these disputes relates to who dismissed the
applicant
and on whose authority they were acting.
[24]
It must have been apparent to the applicant
at the outset that the averments regarding the unlawfulness of his
dismissal and in
particular the roles he avers were played by the
individuals involved in the disciplinary process that they would
inevitably lead
to disputes of fact that could not be resolved on
affidavit. In the extremely unlikely event that it was not clear to
the applicant
at the outset of this matter that there was a clear and
obvious dispute of fact, once the respondents had filed their
answering
affidavit this would have become abundantly clear.
[25]
At the commencement of his argument, it was
put to the applicant’s counsel that there were disputes of fact
that could not
be resolved on affidavit. Counsel for the applicant
was however adamant that this was not the case and elected to persist
with
the application.
[26]
In matters such as this the court has a
discretion "as in the future course of the proceedings”
and that discretion includes
the dismissal of the application with
costs.
[27]
This
is dealt with in the matter of
Room
Hire Co (Pty) Ltd v Jeppe Street Mansions (Pty) Ltd
[2]
where it was held:
‘
It
is obvious that a claimant who elects to proceed by motion runs the
risk that a dispute of fact may be shown to exist. In that
event (as
is indicated
infra
)
the Court has a discretion as to the future course of the
proceedings. If it does not consider the case such that the dispute
of fact can properly be determined by calling
viva
voce
evidence under Rule 9, the parties
may be sent to trial in the ordinary way, either on the affidavits as
constituting the pleadings,
or with a direction that pleadings are to
be filed. Or the application may even be dismissed with costs,
particularly when the
applicant should have realised when launching
his application that a serious dispute of fact was bound to develop.
It is certainly
not proper that an applicant should commence
proceedings by motion with knowledge of the probability of a
protracted enquiry into
disputed facts not capable of easy
ascertainment, but in the hope of inducing the Court to apply Rule 9
to what is essentially
the subject of an ordinary trial action.’
[28]
For the reasons set out above, I determine
that the disputes of fact render the matter incapable of being
determined on affidavit.
In the particular circumstances of this
matter and in accordance with my discretion as to the future course
of action, I am satisfied
that the applicant’s application
should be dismissed.
[29]
I accordingly make the following order:
The applicant’s
application is dismissed with costs.
_______________________
Gush J
Judge of the Labour
Court of South Africa
APPEARANCES
FOR THE APPLICANT:
Adv
M G Hitge
Instructed
by Kirsten van Niekerk Attorneys
FOR THE
RESPONDENTS:
Adv S Grobler
Instructed
by Kramer Wiehmann Joubert Inc
[1]
Annexure
AM2 page 55 of the pleadings.
[2]
1949
(3) SA 1155
(T) at1162.