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[2017] ZALCJHB 119
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Domestech v Malatji and Another (JR228/16) [2017] ZALCJHB 119 (8 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Not
Reportable
CASE
NO: JR228/16
In
the matter between:
DOMESTECH
Applicant
and
JOAS
MALATJI
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION (PRETORIA)
Second
Respondent
Heard:
11 January 2017
Delivered:
8 February 2017
JUDGMENT
BECKENSTRATER
AJ
[1]
The Applicant has approached the Court seeking to review and set
aside an Arbitration Award emanating from the Second Respondent
(CCMA) in relation to a dispute between the Applicant and First
Respondent.
[2]
At the CCMA the Applicant was represented by an attorney whilst the
First Respondent represented himself. The First Respondent
had
referred a dispute to the CCMA relating to his alleged unfair
dismissal for misconduct. At the CCMA, as before the Court, the
Applicant only raised two issues. The first was that the First
Respondent was not an employee, but an independent contractor and
accordingly that the CCMA lacked jurisdiction to entertain the
matter. The second is that, in any event, the First Respondent had
not been dismissed by the Applicant and, again, consequently the CCMA
lacked jurisdiction.
[3]
After hearing the evidence of the First Applicant and Mr Streicher,
the Sole Proprietor of the Applicant, the Commissioner found
that it
was probable that the First Respondent was an employee of the
Applicant and also probable that he was dismissed “
when
he was told to stop coming to work
”.
[4]
Having dealt with those issues, the Commissioner held that the First
Respondent’s dismissal had been substantively and
procedurally
unfair and, because the First Respondent only sought compensation,
and awarded him five months’ remuneration
as compensation.
[5]
The Applicant now seeks to review the Award on the grounds that the
Commissioner erred in both of her findings that the First
Respondent
was an employee and that there had been a dismissal. Insofar as these
challenges relate to the jurisdiction of the CCMA
to entertain the
matter, the question I am required to consider is whether the
Commissioner’s findings on those aspects were
correct (see:
SA
Rugby Players Association and Others v SA Rugby (Pty) Limited and
Others
[1]
[6]
At the CCMA it was common cause that the First Respondent had first
worked for the Applicant as a tiler for two weeks in December
2014
and thereafter from January 2015 until 23 November 2015, the date of
his alleged dismissal. During 2015 the First Respondent
has regularly
worked Mondays to Fridays as a tiler, painter, plasterer, driver and
supervisor on various projects of the Applicant.
There was some
dispute whether he was to be remunerated at R200.00 a day plus
bonuses or R250.00 a day, but it appeared to be common
cause that,
although the First Respondent was paid weekly, he was paid R5 000.00
per month.
[7]
The Applicant’s contention before the CCMA and this Court is
that it does building maintenance, small handyman and building
projects as well as gas installations. It engaged the First
Respondent as a sub-contractor for these purposes. In this regard,
the Applicant argued that the First Respondent was free to come and
go as he pleased, was not paid for the days when he was not
at work
and that the First Respondent brought with him some of his own tools
of the trade.
[8]
The First Respondent asserted that he was an employee, being subject
to the instructions of the Applicant and noting that he
had never
been referred to as a sub-contractor until the matter came to the
CCMA.
[9]
There is also a dispute between the parties about whether the First
Respondent was dismissed if he ever was an employee. While
the
transcript of the evidence is not clear in this respect, it suggests,
and the Award records, that on Tuesday 10 November 2015,
the Tuesday
before the incident relevant at the CCMA, the First Respondent had
been absent from work and then either dismissed
or told to leave. He
had apologised and asked for forgiveness and this had been accepted
by the Applicant. It was then common cause
that on the subsequent
Friday, 13 November 2015, the First Respondent had been absent from
work. He contended he was sick. On the
same day the Applicant had
sent him an SMS message to say there was no more work for him. The
Applicant contends that the SMS either
conveyed or was meant to
convey that there was no work for him the following week, but there
may have been work available for him
thereafter.
[10]
The First Respondent then went to the Applicant’s premises on
the following Monday 16 November 2015 when he was told
that there was
no work available for him.
[11]
The dispute is that the Applicant contends that he was shouted at and
simply told that there was no longer work for him. The
Applicant,
however, contends that there was insufficient work available and thus
he had to distribute work that was available between
the five people
whose services he was using. Thus there was no work available for the
First Respondent during that week. According
to the Applicant this
was communicated to the First Respondent who, however,
opportunistically took this as being a termination
of his services.
[12]
At the CCMA neither party produced proof of the SMS exchanges which
would have been helpful in resolving this dispute.
The
Applicant’s testimony was not clear whether the first SMS had
indicated that the lack of work for the First Respondent
was only for
a limited duration. Obviously that would have been a material
part of the communication if it had not been intended
to terminate
the First Respondent’s services.
[13]
The Commissioner first considered whether the First Respondent was an
employee. She, as I must, took cognisance of the presumption
contained in Section 200A(1) of the Labour Relations Act
[2]
(LRA). As set out above, it was common cause that the First
Respondent had his hours of work controlled by the Applicant, worked
for the Applicant generally more than forty hours a month and during
the eleven months of his engagement rendered services only
to the
Applicant. The triggering events of Sections 200A(b), (d) and (g)
were then met. One must thus assume the First Respondent
was an
employee until the contrary was proved. The Commissioner then
reasoned as follows:
“
[25]
In this matter it was not disputed that the Applicant discharged
functions that were determined by
the Respondent i.e general work,
supervisor and driver. This functions performed were necessary
for the usual trade or business
of the Respondent. Clearly the
manner in which the Applicant worked was controlled by the
Respondent. An independent
contractor usually performs a single
task or project for another person.
[26]
It was also not disputed that the Applicant worked five days a week
and was paid a daily wage
of R250.00 per day. This indicates
that the Applicant’s hours of work were controlled by the
Respondent. It was
also not disputed that the applicant worked
for a period of about eleven months without being stopped.
Normally an independent
contractor will be paid after a completion of
a task or project after submitting an invoice”.
[14] I agree with
this reasoning.
[15]
Furthermore, while the Applicant contended the First Respondent was a
sub-contractor, the following exchange during the Arbitration,
when
the present First Respondent was the Applicant and the present
Applicant the Respondent, is informative:
“
RESPONDENT’S
ATTORNEY – You did the job as and when it was needed?
APPLICANT
– We were getting instructions from the boss where to go and
what kind of work to do.
RESPONDENT’S
ATTORNEY – But that worked changed from day to day?
APPLICANT
– Yes. Because there are the small jobs of the housing.
....
RESPONDENT’S
ATTORNEY – And he was acting as a tiler or painter depending if
there needed to be tiling or painting done
is that correct?
APPLICANT
– The kind of work that we were doing was continuously going on
because if we started working from 7 o’clock
until 5 o’clock
they will be moved to another place
”
.
[16] This exchange demonstrates to me
a fairly typical informal employment relationship.
[17]
While the Applicant contended that its business “
is
a totally sub-contract base business
”
the Applicant supported this statement at the CCMA by testifying:
“
I
don’t have employees I use sub-contractors and casual
labourers
”.
This reveals the erroneous mind set of the Applicant. The Applicant
appears to assume that if someone is employed on a
casual (or more
accurately part-time/ as and when) basis such person is not an
employee. This is not correct. A casual labourer
engaged for a short
project or a number of short projects is still an employee. During
working hours they remain at the beck and
call of the master. The
very fact that during the Arbitration there was no demure to the
First Respondent’s reference to
the Applicant as the “
boss
”
further supports the view that the First Respondent was, indeed, an
employee.
[18]
During argument Mr Coetzee who appeared on behalf of the Applicant
contended that the undisputed fact that the First Respondent
had
provided his own tools of the trade was a factor that one could not
get past as demonstrating that the First Respondent was
an
independent contractor. I disagree. Firstly, the First Respondent had
not provided all of his tools of the trade but, according
to him, had
only provided such tools because “
my
employer was providing us cheap tools
”.
Secondly, when facts are considered in determining whether there is
an employment relationship, no single factor is determinative.
This
is of the essence of the so-called “
dominant
impression
”
test. As items 27 and 52 of the Code of Good Practise: Who is an
Employee records: “
There
is no single factor that decisively indicates the presence or absence
of an employment relationship ... that there is no single
decisive
criterion that determines the presence or absence of an employment
relationship does not mean that all factors should
be given the same
weighting ... Courts, tribunals and officials must determine whether
a person is an employee or independent contractor
based on the
dominant impression gained from considering all relevant factors that
emerge from an examination of the realities
of the parties’
relationship
”.
The overall impression I have of the situation is that the First
Respondent was an employee of the Applicant albeit
an informal
employment relationship.
[19]
On the issue of whether the Applicant dismissed the First Respondent
I, like the Commissioner, find it more probable that what
took place
on Monday 16 November 2015 was a dismissal rather than the First
Respondent being advised that there was no work available
for him for
that week and abandoning his work. Had the First Respondent only been
told that there was no work available for him
that week (and that
there would be work available to him the following week) then there
would have been no need for Mr Schneider
to have raised his voice
during the conversation. Moreover, the First Respondent’s
immediate understanding that he had been
dismissed and reporting it
to the CCMA would have been strange.
[20]
The Applicant did not contend at the CCMA that the First Respondent
had misunderstood what had been explained. Mr Schneider
testified
that he had “
told
[the
First Respondent]
in
front of all the other labourers we all were together and said guys
we are going to have to share work. Some guys will work on
the one
day and the other guys on the other days. I said to him that he will
have to go home and he will have to wait until some
work comes in
within the next few days. I couldn’t let 6 guys sit alone doing
nothing at my house
”.
It was put to the First Respondent during cross-examination that:
“
Actually
what you are interested in is money and not work
”.
So it was the Applicant’s case that the First Respondent had
not misunderstood what had been told to him, but had
rather
opportunistically attempted to claim dismissal when he had not been
dismissed. I find this improbable in circumstances.
The First
Respondent had previously apologised and asked for forgiveness to get
his job back. He alleged that he had to come to
work on the Monday,
notwithstanding the SMS notification that there was not work for him
on Friday 13 November 2015, because he
needed the work.
[21]
In the above circumstances, there is no reason to disturb the
findings of the Commissioner.
[22]
Moreover, it must be noted that the Commissioner has neither been
cited nor joined as a party. The joinder of the Commissioner
from
whom the relevant Award emanates is a material obligation in a Review
Application (see:
Member
of the Executive Council, Department of Education, Eastern Cape v
Gqebe
[3]
).
Such joinder is generally necessary not just an issue of convenience
or prejudice. Those cases that hold that when faced with
a material
non-joinder the court may exercise a discretion not to join such a
party suggest that it is only done in exceptional
circumstances and
where it is clear that the party that has not been joined would not
be prejudiced (see
Wholesale
Provision Supplies CC v Exim International CC and Another
[4]
).
To my mind there are no exceptional circumstances in this matter. To
the contrary the Court file does not reveal that any statement
has
been filed by the CCMA or the Commissioner in response to the Review
Application in which a view is expressed whether or not
those parties
simply abide by the decision of Court and whether or not the
Commissioner desired to supplement his reasons. This
is an additional
reason why the application falls to be dismissed.
[23] Insofar as the
application was unopposed, there should be no order as to costs.
Order
[24] Wherefore I make the following
order:
1. The application
is dismissed.
Beckenstrater
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate Mark Coetsee
Instructed
by:
Raymond Hauptfleisch
[1]
[2008] ZALAC 3
;
[2008] 9 BLLR
845
(LA)
at paras 39 to 41).
[2]
Act 66 of 1995.
[3]
(2009) 30 ILJ
2388 (LAC)
at
paragraph 33 and the authorities collected there
[4]
1995 (1) SA 150
(T)
at
157H-158I