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[2015] ZALCJHB 454
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Solidarity and Others v Landman and Others (JS600/03) [2015] ZALCJHB 454 (8 December 2015)
Not reportable
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 600/03
In the matter between:
SOLIDARITY
FIRST APPLICANT
STEWART,
EM
SECOND APPLICANT
ENSLIN,
EM
THIRD APPLICANT
and
LANDMAN JM DR
FIRST RESPONDENT
HEYMAN, JF
SECOND RESPONDENT
DU PREEZ JG DR
THIRD RESPONDENT
TRUSTEES FOR THE TIME
BEING
OF
THE MALELE TRUST
FOURTH RESPONDENT
Trial
:
7 December 2015
Judgment
delivered
:
8
December 2015
JUDGMENT
VAN
NIEKERK J
[1]
The second and third applicants (collectively, the employees) were
employed by Dr Fourie, a medical practitioner in Nigel; the
second
applicant since 1985 and the third since 1991. In November 1998,
Fourie sold his practice to the first respondent, Dr Landman.
On 14
February 2002, Landman concluded an agreement with the fourth
respondent in terms of which the practice was sold to the fourth
respondent as going concern. Landman subsequently appointed a locum,
Dr Venemans, to work in the practice. Landman was resident
in the
Western Cape and after Venemans’ appointment was rarely seen,
if at all, at the practice. There is a dispute about
the identity of
the employees’ employer after the transfer and the role of the
second respondent, who was the practice’s
auditor, but this was
of no consequence to the employees in their day-to-day work. The
employees performed the same work and were
paid their remuneration
from an account held by Landman and described as ‘t/a Dr BH
Venemans praktyk rekening’.
[2]
Matters changed dramatically on 29 Friday November 2002, when the
employees heard rumours that the practice had been sold. They
sought
advice and were told that in the absence of any notice of termination
of their re-employment, they should report at work
as usual. On
Monday 2 December 2002, the employees reported for work and tendered
their services. They were informed that the practice
had been sold to
the third respondent, Dr du Preez. Du Preez informed them that he had
brought in his own staff and that he had
no need of their services.
It is not disputed that Du Preez continued to practice from the same
premises, took transfer of the
telephone lines, employed two of the
employees’ colleagues (the pharmacist and the cleaner), saw
patients who had appointments
with the practice on the day and that
he retained the patient files for at least two days before handing
them over to the employees
and Venemans, at the latter’s
request.
[3]
Unable to get hold of Landman, Venemans and the employees decided to
continue the Landman practice from Venemans’ home.
They
retrieved the patient files from Du Preez, and telephoned patients to
advise them that Venemans was continuing the practice
at a different
address. The employees were paid a salary from the same source at the
end of December 2002 and January 2003 respectively.
Venemans did not
draw a salary during this period. The practice was not sustainable.
At the end of January 2003, Venemans received
and accepted an offer
of alternative employment and the practice closed.
[4]
The applicant’s claim is one of unfair dismissal for a reason
that is automatically unfair, and in the alternative, a
dismissal
that is substantively and procedurally unfair. The basis of any
substantive or procedural unfairness is not apparent
from the
pleadings, but the primary claim is one in terms of s 187 (1) (g),
i.e. a dismissal on account of a transfer or a reason
related
to a transfer in terms of s 197.
[5]
At the close of the plaintiff’s case,
Mr
West, who appeared for the first respondent, applied for absolution
from the instance. He did so on the basis that on the primary
case
pleaded and the evidence given by the employees, there was a transfer
of the business (comprising the practice) as a going
concern to Du
Preez with effect from December 2002, and that any right of recourse
that the applicants had was against the new
employer for the purposes
of s 197, Du Preez. As an aside, after the court’s ruling on
November 2015 on the point in
limine
raised on Du Preez’s behalf, the applicants reached a
settlement with him. The applicants had previously obtained a
judgment
against Heymans.
[6]
Mr Goosen, who appeared for the applicants, did not dispute that in
the event that it was found that there had been a transfer
of a
business as a going concern for the purposes of s 197, any right of
recourse lay only against Du Preez.
[7]
Also relevant to the application for absolution are the issues of the
existence of a dismissal and the date of the referral
of the
employees’ dispute to the CCMA. Mr. West submitted that the
evidence did not disclose the existence of a dismissal
by Landman,
and that to the extent that the employees’ testified that their
contracts of employment had been terminated at
the end of January
2003, the referral to the CCMA on 30 December 2002 was premature and
thus fatally defective. Although issues
such as these, which are
jurisdictional issues, ought to be raised in terms of procedures
designed to determine matters that are
finally dispositive of a case,
I can see no reason why they should not be raised in an application
for absolution if only because
they are necessary elements of a
prima
facie
case.
[8]
In Erasmus
Superior
Court Practice
, 2
nd
ed. D1-530, the test for absolution is expressed in the following
terms:
When
absolution from the instance is sought … at the close of the
plaintiff's case, the test to be applied is not whether
the evidence
established what would finally be required to be established, but
whether there is evidence upon which a court, applying
its mind
reasonably to such evidence, could or might (not should, or ought to)
find for the plaintiff
.
[9]
I deal first with the submissions regarding the existence of a
dismissal. It is incumbent on an applicant in any claim for unfair
dismissal first to establish the existence of a dismissal, a matter
in respect of which the applicant bears the onus (see s 192(2)).
[10]
The employees gave no clear evidence as to whether they had been
dismissed, when and by whom. The third applicant in particular
gave
conflicting versions as to when she was dismissed and by whom,
stating at once that she had been unfairly dismissed by Landman
and/or Du Preez in December 2002 and then by Landman in January 2003.
Neither employee led any cogent evidence to establish that
she was
dismissed by Landman. On the contrary, the evidence of both was that
they and Venemans had attempted without success to
locate Landman
after the events of 2 December. He was never located – by the
time that Du Preez took occupation of the premises
from which the
practice had been conducted and by the time that what might be
described as the ‘Landman practice’ ceased
at the end of
January 2003, Landman had apparently relocated to the United Kingdom.
[11]
A ‘dismissal’ is defined by s 186 (1) (a) to mean a
‘termination of employment’ by an employer. This
requires
the employer to engage in an act which brings employment to an end in
a manner valid in law (see
National Union of leatherworkers v
Barnard & another
[2001] 22 ILJ 2290 (LAC)). An applicant in
an unfair dismissal claim must establish, on a balance of
probabilities, ‘some
overt act by the employer that is the
proximate cause of the termination of employment’ (see
Ouwerhand v Hout Bay Fishing Industries
(2004) 25
ILJ
731 (LC)). Neither employee, as I have indicated, adduced any
evidence to suggest that she was dismissed by Landman in December
2002, or January 2003, or at all.
[12]
Mr. Goosen submitted that in essence, Landman had repudiated the
contract of employment and that the employees’ acceptance
of
that repudiation brought the contract to an end, thus constituting a
‘dismissal’ for the purposes of the LRA. The
difficulty
with that proposition, of course, its correctness aside, is that the
employees’ referral to the CCMA was made
on 30 December 2002,
prior to the date of dismissal. That is fatal to the applicants’
claim (see
Avgold – Target Division v CCMA & others
[2010] 2 BLLR 159
(LC)).
[13]
Since the applicants have failed to adduce evidence that they were in
fact dismissed by Landman, there is no basis on which
a court could
establish that the employees had been dismissed within the meaning of
that term as defined by s 186 (1) (a), and
accordingly, there is no
basis on which a court, applying its mind to the evidence, could find
for the applicants. For these reasons,
I am satisfied that the first
respondent is entitled to absolution from the instance.
[14]
In these circumstances, it is not necessary for me to make any
finding on whether there was a transfer of a business as a going
concern for the purposes of a claim of unfair dismissal that is
automatically unfair because it is related to the transfer. I do
find
it incongruous though that the applicants plead that the business was
so transferred to Du Preez for the purposes of a claim
against him
but as against Landman, the applicants seek to deny that contention.
[15]
Of course, my finding on the jurisdictional point of the existence of
a dismissal has the consequence that in so far as the
applicant rely
on the alternative claim of an ‘ordinary’ unfair
dismissal claim against Landman, the question of the
exercise of a
discretion to remit the matter or hear it as arbitrator (see s 158
(2)) does not arise.
[16]
Finally, in so far as costs is concerned, the court has a broad
discretion to make an order for costs according to the requirements
of the law and fairness. In my view, the interests of both are
satisfied by an order that each party should bear its own costs.
The
employees were obviously genuinely aggrieved at the shameful manner
in which their employment came to an end after years of
service. They
pursued that grievance and sought remedies against the parties whom
they considered responsible for their plight.
This court is
traditionally reluctant to close its doors to employees in these
circumstances by applying the rule that costs ought
to follow the
result. In any event, the first respondent’s statement of
response suggests that the first respondent had no
dealings with or
involvement in the practice after February 2002, and that the
employees’ dismissal was not due to any act
or omission on his
part. In these circumstances, the first respondent ought to have
raised a special plea to the effect that as
against him, there was no
dismissal for the purposes of s 187. Had he done so, this matter may
well have been more expeditiously
determined.
I
make the following order:
1.
The first respondent is granted absolution from the instance.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicants: Adv C Goosen instructed by Serfontein Viljoen &
Swart
For
the first respondent: Adv H west, instructed by Nichole Landman
Attorneys