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[2014] ZALCJHB 55
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Galatis v Commission For Conciliation, Mediation and Arbitration and Others (JR 798/12) [2014] ZALCJHB 55 (5 March 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 798/12
In the matter
between:
GALATIS
PETER
.............................................................................................
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
........................................................
First
Respondent
BOYCE,
MICHAEL
N.O
..................................................................
Second
Respondent
VAN
GELMAN COLEEN
…
................................................................
Third
Respondent
Delivered: 05
March 2014
JUDGMENT: LEAVE
TO APPEAL
MASIPA AJ
Introduction
[1]
On 1 November 2013, the Applicant applied
for leave to appeal against my judgment delivered on 11 October 2013.
[2]
The Applicant filed its written submissions
in support of the application on 15 November 2013 and the Third
Respondent filed its
written submissions opposing the leave to appeal
on 22 November 2013.
[3]
The order in terms of the Judgment, was as
follows:
‘
1.
The Applicant’s review application is dismissed;
2. The Applicant is
to pay the Third Respondent’s costs.’
[4]
The Applicant stated in its written
submissions that it was appealing against the whole Judgment and
order, including the cost order.
The issue before the Commissioner
was whether the Third Respondent was an employee. In her evidence
before the Second, the Third
Respondent testified that she was
interviewed by the Applicant and his then partner Dr G van Niekerk.
Further that following this
meeting she was employed and was allowed
to continue providing services to another dental practitioner.
[5]
The Third Respondent saw herself as a
professional Oral Hygienist. When Third Respondent was employed,
there was no contract of
employment. And she received remuneration
based on the number of patients she saw.
[6]
Following allegations of inappropriate
conduct by a client of the Applicant, the Third Respondent was
suspended and following some
uncertainty arising from certain
meetings, the Third Respondent referred a dispute to the First
Respondent.
[7]
Having considered several factors appearing
in both the award and the Judgment, the Second Respondent found that
the Third Respondent
was an employee. These factors included the fact
that she was subject to the supervision and control of the Applicant.
In paying
her salary, the Applicant deducted PAYE, SITE, and UIF. She
was issued a payslip and IRP5, Made no contribution to rent utility
bills and consumables, did not contribute towards staff salary and
was obliged to submit to the Applicant’s wishes in respect
of
time, date and venue of meetings among others. In the judgment, it
was found that the Third Respondent was subject to the control
and
supervision of the Applicant in the performance of her work. Further
that she had refused to sign the contract setting out
that she was a
contractor when she was already an employee with PAYE, SITE and UIF
being deducted from him. It was also found that
she formed an
integral part of the Applicant’s organisation. Evidence before
the Second Respondent proved that she was economically
dependent on
the Applicant.
[8]
The
Applicant contends that the Third Respondent performed dental hygiene
services elsewhere on the days she did not do this for
the Applicant.
The Applicant’s argument was that the fact that she offered her
skills or services elsewhere was an indicator
that she was not
financially dependent and that providing service to a single client
was an indicator of economic dependence. The
Applicant relied on the
article by Paul Benjamin ‘An Accident of History: Who is
(and who should Be) an Employee under
South African Labour
Law.’
[1]
After the
relationship was terminated she continued to perform services for
other dentists The Applicant argued that she had more
than one
client.
[9]
The Applicant argued that the Third
Respondent’s evidence was that in terms of the South African
Dental Association, Oral
Hygienists required the control and
supervision of a Dentist for the performance of their duties. The
Applicant argued that this
supervision requirement did not detract
from the true nature of the relationship being that the Third
Respondent was conducting
her own trade at the Applicant’s
premises.
[10]
The
Applicant submitted that whether the Third Respondent was an employee
of contractor was not determinable from the deduction
of tax. In this
regard, the Applicant relied on the judgment of
Total
SA (Pty) Ltd v National Bargaining Council for the Chemical Industry&
others
[2]
where it was found that notwithstanding the employee being given an
access card, employee number and the deduction of tax and UIF
did not
make this did not make him an employee. These deductions were
immaterial to her actual status.
[11]
The Third Respondent submitted that the
issue was whether the she was an employee and not an independent
contractor. It was argued
that the evidence led before the Second
Respondent supported her version i.e. that she was an employee.
[12]
The Third Respondent submitted that the
Applicant conceded that she could not render her services
independently. It was a requirement
by the SA Dental Association that
Dental Hygienist be under the control and supervision of a Dentist.
In view of this, she could
not be an independent contractor. It was
argued by the Third Respondent that the suggestion by the Applicant
that she did not exercise
supervision over her meant that he was in
violation of his ethical duties. Further that conducting performance
reviews indicated
an element of control and Supervision.
[13]
The
Third Respondent relies on the
SA
Rugby Players Association and Others v SA Rugby (PTY) Ltd and
Others
[3]
which
sets out the criteria of determining who is an employee and which was
relied on in the main judgment. It was clear that the
Third
Respondent satisfied nine of the elements set out in the
SA
Rugby
case.
[14]
The Third Respondent argued that the fact
that the Applicant was paid commission did not detract from the true
nature of the relationship.
Further, the Applicant was prepared to
accept that the Third Respondent was an employee if that decision was
made by someone other
than the Second Respondent. The Applicant
elected not to testify to be cross examined before the Second
Respondent but sought to
appeal his decision through the review
process by providing new evidence.
[15]
The Second Respondent conducted an in-depth
analysis of the nature of the relationship between the parties. The
Third Respondent
argued that his analysis was based on the evidence
before him and that no court would arrive at a different decision to
that arrived
at by the court in this matter.
[16]
The Third Respondent argued finally that in
terms of the
Toyota
judgment,
receiving a payslip and the deduction of PAYE and UIF were factors
which may point towards the employment relationship
but that this did
not constitute conclusive evidence of the true nature of the
relationship. This was but one of the factors. The
Third Respondent
argued that there were no prospects for another court arriving at a
different conclusion.
[17]
In determining the review, the court can
only rely on the evidence which was before the Second Respondent when
the award was issued
and not on fresh evidence introduced during the
review application. The Second Respondent’s issued a well
reasoned award
supported by the evidence before him. I am satisfied
that on the material before the Second Respondent, there are no
prospects
of another court coming to a different conclusion.
[18]
In the premises, I make the following
order:
The
application for leave to appeal is refused with costs.
Masipa AJ
Acting
Judge of the Labour Court of South Africa
[1]
(2004) 25 ILJ 787 at 803
[2]
(2013) 34 ILJ 1006 (LC)
[3]
(2008) 29 ILJ 2218 (LAC)