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[2015] ZALCJHB 324
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Van Hoolwerf v Imperial Group Ltd and Another (JS 423/2015) [2015] ZALCJHB 324 (16 September 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: JS 423/2015
DATE: 16 SEPTEMBER 2015
Not Reportable
In
the matter between
LILENE
VAN
HOOLWERF
....................................................................................................
Applicant
And
IMPERIAL
GROUP
LTD
............................................................................................
First
Respondent
TURBO
EXCHANGE (PTY)
LTD
.........................................................................
Second
Respondent
Heard:
11 September 2015
Delivered:
16 September 2015
Summary:
Employment by subsidiary company which separate entity from the
holding company does not create employment relationship
with the holding company. The holding company
incorrectly cited. Plea of misjoinder upheld.
JUDGMENT
BALOYI AJ
Introduction
[1]
The dispute between the parties is being
referred in terms of Rules 6 of the rules of conduct of proceedings
of this Court. The
parties have finalized the pre-trial process and
the minutes have accordingly been filed. The matter is now before
Court for determination
of preliminary issue raised by the
Respondents, namely misjoinder of the First Respondent. The Court
held a view that was clearly
disseminated to the parties that the
point in question has little to do with disposal of the dispute if
upheld or at least to bring
about a consequence of amendment to
pleadings. Oral evidence within trial of the matter was in the
Court’s view the
most appropriate way to dispose of the
preliminary point. The issue of costs as pointed by counsel for
the Respondents happened
to be a compelling factor to have the matter
proceeded with. Furthermore the First Respondent will have to
keep on preparing
for trial in the matter which it believed that only
the Second Respondent was the employer of the Applicant.
The Issues
[2]
The Respondents submitted that in
Applicant’s own words as contained in the statement of case it
is alleged that she was at
the time of her dismissal employed by the
Second Respondent. The Court’s attention was specifically
drawn to paragraph
5.1 of the statement of case which reads as
follows:
“
The
Applicant was employed by the First Respondent from
May
2000
and by the Second Respondent from
August
2011
as
Financial Director
until her dismissal on
20
January 2015
.
At the time of her dismissal she was employed as the Financial
Director with the Second Respondent on an annual salary of
R990 886-00
”.
[3]
It is on this basis that the Respondents
believe that the First Respondent has been unnecessarily brought to
Court. Since there
was no employment relationship between the
Applicant and First Respondent when the Second Respondent dismissed
the Applicant, the
First Applicant cannot be held as party having
interest in the matter. The mere fact that the First Respondent is a
holding and
a separate entity from the Second Respondent clearly
shows that there is no substantial interest in existence.
[4]
The basis for inclusion of the First Respondent as party is that its
resources were used in pre dismissal processes ranging
from notices,
charges and the dismissal being communicated on its letterhead. The
participation of the First Respondent’s
HR Director in the said
process and that Mr Patrick Williams happened to be the director of
both companies was further brought
to light by the Applicant.
Evaluation
[5]
Both parties seem to be
ad idem
on the fact that misjoinder should be taken
in
limine
and if not taken cannot be
raised subsequently. They referred to authorities in support of
this point. Parties are
also in agreement that a substantial
interest need to be shown to sustain the presence of partly cited in
the proceedings.
In
Mdlalose v
Fila SA (Pty) Ltd
[1]
the Court allowed a joinder of another entity under the circumstances
set out in paragraph 23 as follows;
“
[23]
This is not a case where the applicant alleges that the corporate
entity abuse its legal personality status and seeking the
Court to
pierce the corporate veil. Nor is it a case where the applicant
seeks a joinder or declaratory on the basis of the
remedies provided
for in section 197 of the Act this section has, therefore, no
application herein. Instead, it is a case
where the applicant
alleges that two separate independent corporate entities, owned by
the same persons, operating in the same
or virtually the same
business activity, using the same staff complement. On the same
premises and using the same machinery,
equipment and stationery.
The two entities concerned were Fila South Africa (Pty) Ltd, the
respondent herein on the one hand,
and Footwear Trading CC on the
other. As a result of this conduct by the respondent and
Footwear Trading CC, a confusion
was not only foreseeable but it was
certain to arise, most likely to the detriment and prejudice of
innocent third parties involved
in commercial or legal dealings with
either of these entities. The respondent and footwear Trading
wear trading CC foresaw
this problem, but recklessly failed to do
something to avert the confusion. In fact, their actions tended
to show that they
intended, directly or indirectly, the confusion to
arise and that it would accord them a legal defence in claims such as
the present
one”.
[6] When coming to this instant matter it appears that the third
party is attached to these proceedings in so far as the processes
related to dismissal of the Applicant. There is nothing to
suggest that the Applicant was dismissed on the basis of her being
the First Respondent’s employee. I have also looked at
what parties recorded as common cause in the pre-trial minute
with
specific attention given to paragraph 3 where parties had this to
say:
“•
The
Applicant was employed by the First Respondent from May 2000 to
August 2011.
•
The
Applicant was employed by the Second Respondent from August 2011
until her dismissal on 20 January 2015.
•
The
Applicant was employed as Financial Director of the Second
Respondent.”
[7]
In this regard the grounds laid by the Applicant surely do not
warrant the presence of the First Respondent in this matter.
The situation as it appears does not require further interpretation
based on what is placed before the Court. Clearly the
First
Respondent should not have been cited. In
National
Union of Metalworkers of South Africa v Lee Electronics (Pty) Ltd and
others
[2]
the Court declined to pierce corporate
veil of entity which allegedly controlled company which dismissed
employees and true employer
was held to be entity which effected
dismissal. In the present matter the Second Respondent is the
true employer of the Applicant.
Therefore, it should not have
been joined as a party to these proceedings.
[8] As to costs this is not a matter which calls for the costs to
follow the order. Despite the fact that parties had at
their
disposal an opportunity to deal with this point during trial, it is
undisputed that litigation is still ongoing between the
parties.
Any cost order may impede the parties’ chances of resolving the
dispute amicably. Further regard is
had to what is recorded in
the pre-trial minute that parties have not given up in finding
resolution of the dispute.
Order
[9] In the circumstances the following order is made:
11.1. The Respondents’ plea on misjoinder is
upheld.
11.2.
There is no order as to costs.
Baloyi AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: G J De Villiers, De
Villiers-Möhr Attorneys
For the Respondent: Adv. A Bishop instructed
by Dewey Herzberg Levy Inc.
[1]
2003 24 ILJ 2328 (LC), upheld on appeal:
(2005) 5
BLLR 452
(LAC)
[2]
[2013] 2 BLLR 155
(LAC)