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[2015] ZALCCT 36
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Liquor Runners PE v National Bargaining Council for the Road Frieght And Logistics Industry and Others (C552/14) [2015] ZALCCT 36 (30 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C552/14
DATE:
30 APRIL 2015
Not
Reportable
In
the matter between:
LIQUOR RUNNERS
PE
..........................................................................................................
Applicant
And
THE NATIONAL
BARGAINING COUNCIL FOR
THE ROAD
FRIEGHT AND LOGISTICS
INDUSTRY
..........................................
First
Respondent
NEIL PAULSEN
N.O
...............................................................................................
Second
Respondent
DONAVAN
ADOLOPH
..............................................................................................
Third
Respondent
SAYED
NORDIEN
...................................................................................................
Fourth
Respondent
MAYIBUYE
HADI
.......................................................................................................
Fifth
Respondent
Date
heard: 17 February 2015
Delivered:
30 April 2015
JUDGMENT
RABKIN-NAICKER
J
[1] The applicant
seeks the review of a jurisdictional ruling under case number PERFBC
29140 on an unopposed basis. The second respondent
(the arbitrator)
found that the second to fifth respondents were employees and that
the second respondent (the bargaining council)
had jurisdiction to
hear their alleged unfair dismissal dispute
[2] The applicant
is part of a larger group of six other Liquor Runners depots
operating in all the major areas in the country.
Up until February
2013, its staff were all provided by a labour broker, Cheetahmode CC.
In December 2012 applicant informed Cheetahmode
CC that it intended
to re-structure and establish an owner-driver scheme and that it
would no longer need their staff working as
drivers and their
assistants. As a result those employees were retrenched by the labour
broker.
[3] Applicant
explains that it was agreed with Cheetahmode CC that first
consideration should be given to offer owner-driver contracts
to the
staff members who were to be retrenched. Pursuant to this arrangement
third to fifth respondents were offered these contracts.
It is
averred by applicant that owner-driver contracts were offered to the
vast majority of drivers and the owner drivers then
employed the vast
majority of van assistants.
[4] The
owner-driver scheme is catered for in a collective agreement which
was before the arbitrator. After their retrenchment third
to fifth
respondent entered into a written agreement on the 28
th
February 2013 which was also before the arbitrator.
[5] The applicant
concedes that on face value the owner-drivers would appear to meet
most of the criteria of section 200A of the
LRA. However, it submits
that a specific collective agreement makes special provision for the
scheme and the third to fifth respondents
have in any event invoiced
for amounts over the threshold applicable to the application of the
section. They thus argue that they
are in practice independent
contractors of the applicant.
[6] One of the
grounds of review in this application concerns the fact that no
evidence was led at the arbitration but parties merely
argued their
version on the jurisdictional point. The arbitrator then proceeded to
make his ruling on the basis of the documents
before him including
the contracts of employment. It is trite that a reviewing court in a
matter such as this, is not concerned
with whether the ruling is
reasonable. The issue is simply whether objectively speaking, the
facts which would give the CCMA jurisdiction
to entertain the dispute
existed.
[1]
[7] The problem
confronting this court however is that given the arbitrator failed to
direct the parties to lead evidence before
him so as to establish
whether the relationship between them was an employment relationship,
it is not possible for the court to
apply the necessary test to
determine whether the bargaining council had jurisdiction or not. The
wording of the contracts between
the parties and the content of the
collective agreement simply do not suffice.
[8]
In
Shell SA Energy (Pty) Ltd v National Bargaining Council for the
Chemical Industry & others
[2]
the LAC found that a conciliator had committed a material
irregularity by refusing to hear oral evidence when determining
whether
an employment relationship existed between the parties.
[3]
Even where the need to hear evidence is not raised by a party, the
parole evidence rule is not sufficient in circumstances where
a
contract may have been drafted to disguise the true nature of the
relationship between the parties. As the “Code of Good
Practice: Who is an Employee” provides:
“
29
However, the contractual relationship may not always reflect the true
relationship between the parties. In these cases, the court
must have
regard to the realities of that relationship, irrespective of how the
parties have chosen to describe their relationship
in the contract.
Adjudicators should look beyond the form of the contract to ascertain
whether there is an attempt to disguise
the true nature of the
employment relationship or whether there is an attempt by the parties
to avoid regulatory obligations, such
as those under labour law or
the payment of tax. Our courts have frequently noted that the
inequality of bargaining power within
an employment relationship may
lead employees to agree to contractual provisions that do not accord
with the realities of the employment
relationship. This is
particularly important in the case of low paid workers who may have
agreed to be classified as independent
contractors because of a lack
of bargaining power.”is review
[9] In this
matter, the failure of the arbitrator to conduct the proceedings
appropriately, and hear oral evidence, means that the
Labour Court
does not have sufficient evidential material before it to apply the
relevant review test and determine whether the
jurisdictional ruling
was correct. In these circumstances, I make the following order:
Order:
1. The
jurisdictional ruling under case number PERFBC 29140 is reviewed and
set aside.
2. The dispute is
remitted back to first respondent for arbitration anew before an
arbitrator other than second respondent.
H
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Adrie Hechter Attorneys
[1]
SA Rugby Players Association & others v SA Rugby (Pty) Ltd &
others (2008) 29 ILJ 2218 (LAC) at paragraph 41
[2]
(2013) 34 ILJ 1490 (LAC)
[3]
At
paragraph 6