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[2015] ZALCJHB 431
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Qube Systems (Pty) Ltd and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR2186/11) [2015] ZALCJHB 431 (15 December 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR2186/11
In
the matter between:
QUBE
SYSTEMS (PTY)
LTD
First Applicant
QUBE
MANUFACTURE (PTY)
LTD
Second Applicant
QUBE
TECHNICAL SERVICES (PTY)
LTD
Third Applicant
QUBE
PROPERTY HOLDINGS (PTY)
LTD
Fourth Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
KATLHOLO
WABILE
N.O.
Second Respondent
HENK
MOEN
Third Respondent
Delivered:
15 December, 2015
Matter
decided in chambers
JUDGMENT IN THE
APPLICATION FOR LEAVE TO APPEAL
BRASSEY,
AJ:
[1]
In
this matter, the third respondent (‘Moen’) applies for
leave to appeal against the whole of my judgment handed down
on 16
September 2015. In motivating the application, Moen has filed
comprehensive representations and the companies that are the
applicants in the review proceedings have filed representations in
opposition.
[2]
I
have studied the papers and I am not persuaded that there are
reasonable prospects of success in the appeal.
[3]
The
first ground of appeal, substantively speaking, is that I erred in
rejecting the claims against the second, third and fourth
applicants.
[4]
One
of the grounds of rejecting the claims was that they were never
submitted for consideration in the process of mediation contemplated
in the statute.
[5]
Moen
admits that there had been no formal referral of the claims against
the three companies in question but says that there was
no need to
make the referral in the circumstances and to insist upon this
procedural step would be an exercise of formalism producing
palpable
prejudice for him.
[6]
Considerations
of this sort are, however, collateral to the real issue to be
decided.
[7]
Under
the Act, matters must be referred for conciliation not just in order
to produce a settlement acceptable to the parties but
in order that
the Commissioner should endeavour, by means of mediation, to limit
the burden that an excessive proliferation of
disputes places on the
dispute-resolution system. In the present case, the Commissioner did
not have the opportunity to exercise
that statutory function.
[8]
In
the circumstances, no claim could lie against the second, third and
fourth applicants in the review proceedings. I am satisfied
that, on
the basis of prevailing authority, no court on appeal could
reasonably be expected to disturb my finding on this score.
[9]
In
my judgment, I granted relief against the first applicant in the
review proceedings. I did so solely on the basis of an admission
by
counsel who represented the first applicant that it was indeed Moen’s
employer.
[10]
The
case mounted by Moen suggested that the first applicant was not
exclusively his employer but that he was ‘jointly’
employed by all four applicants; but, unless an agreement between
persons is proved regulating the mode in which control over the
employee is to be exercised, employment law can countenance no notion
of ‘joint employment’ for the simple reason that
there
must ultimately be a single controlling mind that directs the work of
the employee. The stance taken by Moen in these proceedings,
therefore, was one that was wholly subversive of his case and it is
surprising that he seeks to prosecute it on appeal.
[11]
Be
that as it may, there is no basis upon which relief can be granted
against all four companies. The best that Moen can expect
is to rely
on the admission by counsel for the first applicant that it is indeed
the employer. It was on the basis of that admission
that I granted
relief against the first applicant and I see no grounds upon which a
court on appeal might reasonably disturb the
finding in question.
[12]
That
leaves me with my finding that the termination of employment was not
substantively unfair. The challenge to my finding on this
score is
more tenable than on the other two but, ultimately, I do not believe
a court on appeal could reasonably come to a different
conclusion.
[13]
The
common cause facts revealed by Moen’s conduct show a
surprising, perhaps even shocking, want of judgment on this part.
He
was the joint managing director of the first applicant and yet took
it upon himself, without authorisation from anyone else,
to change
the basis upon which banking transactions were conducted in a manner
that inevitably provided him with scope for malfeasance.
No person in
a position of authority could possibly believe that he was entitled
to do this without informing other interested
parties and allowing
them independently to exercise a discretion as to whether his
proposed conduct would be appropriate. I cannot
believe that a court
on appeal would reasonably come to a different conclusion.
[14]
In
the circumstances, I dismiss the application for leave to appeal with
costs.
______________
Brassey, AJ
Acting
Judge of the Labour Court of South Africa