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[2015] ZALCJHB 201
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Daimler Fleet Management South Africa (Pty) Ltd and Others v Bidvest Bank Limited and Another (J1189/2015) [2015] ZALCJHB 201 (6 July 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, BRAAMFONTEIN
Case no: J1189/2015
DATE: 06 JULY 2015
In the matter between:
DAIMLER FLEET MANAGEMENT
SOUTH AFRICA (PTY)
LTD
....................................................................................
1ST
APPLICANT
THE INDIVIDUALS LISTED
IN ANNEXURE
A
..........................................................................................
2nd
to Further applicants
(“the employees”)
And
BIDVEST BANK
LIMITED
.......................................................................................
First
Respondent
TELKOM SA (SOC)
Ltd
.........................................................................................
Second
Respondent
Heard: 3 July 2015
Delivered: 6 July 2015
Summary: urgent application: struck
off the roll with costs for lack of urgency
JUDGMENT
GUSH J:
[1] This is an application brought as a
matter of urgency by the applicants for an order that “the
cessation of the rendering
of fleet management services by the first
applicant to the second respondent and the commencement of the
rendering of the management
services by the first respondent to the
second respondent, is declared to constitute the transfer of the
business from the first
applicant to the first respondent in terms of
section 197 (2) of the Labour relations act 66 of 1995”, and
ancillary relief.
[2] The application is opposed by both
first and second respondents who dispute that the application is
urgent.
[3] The parties agreed that the matter
would commence by determining whether or not the application was
urgent and if found to be
urgent would be adjourned to a date to
enable further preliminary points to be raised and the merits to be
argued.
[4] The applicants had provided the
second respondent with fleet management services for a number of
years. The contract between
the applicant and the second respondent
was due to end on 31 March 2015 and during August 2015 the second
respondent published
what is referred to as a “request for
proposal” or tender for its fleet management services.
[5] On 31 October and 18 November 2014
the second respondent advised the applicant that its tender had been
unsuccessful and that
the first respondent had been appointed as the
new service provider with effect from 1 April 2015.
[6] The question of whether section 197
of the Labour relations act would apply to the awarding of the
contract revenue service
provider had arisen during 2013. The
applicant had on 15 November 2013 recorded that it believed section
197 to be applicable and
on 26 November 2013 the second respondent
made it clear that it believed the section was not applicable.
[7] Whilst there was some ambivalence
regarding the applicability of section 197 after the award of the
contract revenue service
provider it is abundantly clear that by 25
March 2015 the applicant was aware that this issue was in dispute. So
much so that the
applicant saw fit to pass a resolution:
That Daimler fleet management institute
an urgent application against Telkom SA Soc Ltd and Bidvest in the
Labour Court, for declaratory
and such further relief that may be
necessary, concerning
section 197
of the
Labour Relations Act 1995
[8] At the same time there was a
further dispute between the applicant and the second respondent
regarding the applicant’s
obligation to continue rendering
services during a 3 month lead out phase from 1 April to 30 June 2015
and the applicant at the
same time resolved to approach the High
Court in this regard.
[9] In Accordance with the resolution
the applicant made an application to the high court regarding the
lead-out phase issue, but
did not apply to the labour court to
resolve the
section 197
dispute.
.
[10] The dispute between the applicant
and the second respondent regarding the lead out phase is recorded in
the judgement of the
High Court as follows:
In broad basic terms, the dispute can
be described as follows: Daimler insists that any obligations which
it may have to discharge
during the lead out phase do not include the
supply of vehicles to Telkom. Telkom argues that on a proper
interpretation the lead
out phase makes provision for the vehicles to
remain available to Telkom during the lead out phase, to be gradually
phased out
and replaced by Bidvest during this period.
[11] The court ordered the applicant
inter alia to “during the lead out phase, 1April to 30 June
2015, render reasonably necessary
assistance to enable Telkom to
transfer the provision of the services the new service provider,
Bidvest, …”.
[12] It is abundantly clear from this
and the voluminous papers filed in this matter that the effective
“takeover” of
the service by the first respondent took
place on 1 April 2015, albeit that the applicant was in terms of its
contract with the
second respondent obliged to assist for a three
month period.
[13] The relevant or effective date
therefore for the purpose of determining when a transfer in terms of
section 197
took place is 1 April 2015.
[14] This application was only filed on
12 June 2015 to be heard on 26 June 2015, some four days before the
end of the lead out
phase.
[15] This application was only filed on
12 June 2015 to be heard on 26 June 2015, some four days before the
end of the lead out
phase.
[16] Having considered the applicant’s
submissions I am not persuaded that the urgency the applicant
endeavours to rely on
was not self-created. The contract with the
applicant (aside from its lead out phase obligations) came to an end
on 31 March 2015.
The first respondent took over the service on 1
April 2015 and it commenced rendering services to the second
respondent on the
same day. It is so that the applicant was obliged
to assist the second respondent during the lead out phase but this
does not alter
the fact that the effective date of the commencement
of the new contract was 31 March 2015.
[17] The applicant was clearly aware of
the dispute regarding the applicability of
section 197
to the award
of the contract to the first respondent and resolved timeously to
approach this court in order to resolve this dispute.
It elected not
to do so apparently for tactical reasons pertaining to the ultimate
determination of the applicability of
S197.
[18] The matter was urgent on 25 March
2015. It is not urgent today.
[19] In the circumstances and for the
reasons set out above, I make the following order:
ORDER
- The applicant’s application is
struck off the roll for lack of urgency.
- The first applicant is ordered to pay
the first and second respondents’ costs. Such costs include the
costs of two counsel.
D H Gush
Judge of the Labour Court of South
Africa
COUNSEL FOR APPLICANT: ADV MYBURG
COUNSEL FOR RESPONDENT: ADV REDDING
ADV BADENHORST
DATE OF JUDGMENT: 2015-07-06
IAFRICA TRANSCRIPTIONS (PTY) LTD
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