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[2015] ZALCCT 47
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Concord Employment Contractors (Pty) Ltd v Bidfreight Port Operations (Pty) Ltd and Others (C435/15) [2015] ZALCCT 47; [2015] 10 BLLR 1024 (LC); (2015) 36 ILJ 2864 (LC) (26 June 2015)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Reportable
Case Number C435/15
In the matter between:
CONCORD EMPLOYMENT
CONTRACTORS (PTY) LTD
Applicant
and
BIDFREIGHT PORT
OPERATIONS (PTY)
LTD
First Respondent
THE INDIVIDUAL
RESPONDENTS LISTED IN
ANNEXURE
‘A’
Individual Respondents
Date heard: 5 June
2015
Delivered:
26 June 2015
Summary: Urgent
application to restrain client of labour broker from poaching its
employees; no breach of contract at time of hearing;
Matter does not
fall within the ambit of section 77(3) of the BCEA and application
dismissed for want of jurisdiction.
JUDGMENT
RABKIN-NAICKER J
[1] In this
application brought on an urgent basis the applicant company, a
temporary employment service, seeks the following
relief:
“
That
the First Respondent is interdicted and restrained from employing,
directly or indirectly using the services of, or soliciting,
enticing
or otherwise attempting to persuade any of the individual
Respondents to perform such services for the First Respondent,
for as
long as they are employed by the applicant, or for a period of six
months thereafter”
[2] The first
respondent, a freighting company is a long-time client of the
applicant. It has come to applicant’s notice that
first
respondent has approached some 30 of applicant’s employees and
advised them to apply for positions in its employ telling
them, as
applicant avers, that “they could be guaranteed a better
position including more shifts, better remuneration and
more benefits
tied to the relevant posts.” The applicant further avers that
on 22 May 2015 he drew the attention of the first
respondent to the
fact
“
..that
there are significant discrepancies between the pay rates for the
same work paid by the Applicant and by the First Respondent
respectively, the First Respondent’s rates being higher. I made
it clear to the First Respondent, though Ms Lange, that unequal
pay
for equal work was not acceptable. The significance of this was that
it created an improper incentive aimed at enticing employees
of the
Applicant to join the First Respondent.”
[3] The above is a most
novel reliance on the “unequal pay for equal work principle”.
Be that as it may, applicant
has since informed the first respondent
of the ‘restraint clause’ in its contracts of employment
with the individual
respondents. The restraint clause bears
recording:
“
17.1
The Employee accepts that he/she will not be allowed to conduct work
whether directly or indirectly for the Employer’s
client or any
of its associates or through another agency or placement company or
contractor, for the period of six(6) months after
the termination of
the employment relationship based on the assignment(s).
17.2
The Employee hereby further agrees and acknowledges that he/she has
given careful consideration to the above restraint and
that the said
restraint goes no further than is reasonably necessary to protect the
proprietary rights and interest of CEC”
[4]
There had been no alleged breach of the restraint by the time the
application was before me, which means that the remedy sought
cannot
be based on enforcement of the said restraints. It is trite that an
employer seeking to enforce a restraint agreement is
required to
invoke it and show a breach of it.
[1]
Rather the applicant submits that this court has jurisdiction to
provide the relief sought by virtue of section 77(3) of the BCEA
i.e.
that: “
The Labour Court has
concurrent jurisdiction with the civil courts to hear and determine
any matter concerning a contract of employment,
irrespective of
whether any basic condition of employment constitutes a term of that
contract.”
[5] In
Rand Water v Stoop & another (2013)
34 ILJ 576 (LAC)
the court per Waglay
AJP (as he then was) held that the Labour Court has jurisdiction, by
virtue of section 77(3) of the BCEA, to
hear a counter claim by an
employer for damages for breach of contract by dismissed employees.
The cause of action giving rise
to both claims in that matter was the
alleged breach of a contract of employment between employer and
employees. This is not the
case in this matter. As alluded to above,
there had been no breach of any term of an employment contract when
this matter was brought
to court. The application appears to have
been brought to deter the first respondent from ‘poaching’
applicant’s
employees and to deter those employees from
applying for permanent employment, for a higher rate of pay, with
applicant’s
client. To put it bluntly the application reflects
the fall out and resultant skirmish between a labour broker and its
client in
the wake of the 2014 amendments to the Labour Relations
Act, in particular the insertion of paragraphs 198A to 198D of the
LRA.
[6] In as far
as reliance on section 77(3) of the LRA is concerned, I can do no
better than quote from
Rand Water v Stoop & another:
“
[38]
A teleological approach to interpretation of the BCEA is clearly
appropriate, but this approach does not and cannot licence
an Alice
in Wonderland interpretation. Words must mean what they ordinarily
mean not what we want them to mean: S v Zuma &
others; National
Coalition for Gay & Lesbian Equality & others v Minister of
Home Affairs & others; Daniels
v Campbell &
others; Investigating Directorate: Serious Economic
Offences & others v Hyundai Motor Distributors
(Pty) Ltd &
others: In re Hyundai Motor Distributors (Pty) Ltd & others v
Smit NO & others; and Hoffmann
v SA Airways.”
[7] This is
not a matter ‘concerning a contract of employment’ in
terms of section 77(3) of the BCEA. The applicant
would like the
court to find the restraint in question reasonable in order to
prevent the poaching of its employees. As I am of
the view that I do
not have jurisdiction to hear the matter, I am not able to make a
finding in this respect.
[8] I see no
reason why costs should not follow the result and order as follows:
Order
1.
The
application is dismissed for want of jurisdiction.
2.
Applicant
to pay the costs.
________________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
:
For the
Applicant: F. Rautenbach instructed by Carelse Khan Inc
For the
First Respondent: C. Nel instructed by Macgregor Erasmus Attorneys
[1]
EXPERIAN
SOUTH AFRICA (PTY) LTD v HAYNES AND ANOTHER
2013 (1) SA 135
(GSJ) at
paragraph 14