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[2017] ZALCJHB 481
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Assist Bakery 115 CC v Ngwenya NO and Others (JR668/16; JR649/16) [2017] ZALCJHB 481 (27 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JR668/16/
Jr649/16
In
the matter between:
ASSIST
BAKERY 115
CC
Applicant
and
DUMISANE
JOHANNES NGWENYA N.O
First
Respondent
CCMA
Second Respondent
LETHABO
MASOGA
Third Respondent
LEBOGANG
MOELESO
Fourth Respondent
PICK
N PAY RETAILERS (PTY)
LTD
Fifth Respondent
Heard
:
18 October 2017
Delivered
:
27 October 2017
Summary:
An opposed review
application. Where a commissioner identifies the true dispute but
arbitrate a wrong dispute, such amounts to not
having arbitrated the
dispute and an irregularity that vitiates the award. A commissioner
who incorrectly interprets the law can
be attacked on correctness or
reasonableness. The provisions of section 200B of the Labour
Relations Act
[1]
considered. The provisions ought to be invoked by a party and all its
elements to be proven by the party invoking it. The provisions
of
section 200B has far reaching implications for corporate South
Africa. The commissioner by
mero
motu
invoking the
provisions of section 200B acted wrongly. Held (1): The award was
reviewed and set aside. Held (2): Replaced with an
order that Pick N
Pay is not the employer. Held (3): Each party to pay its own costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Before me are two review applications. The first review is launched
by Assist Bakery 115 CC and the other by Pick N Pay Retailers
(Pty)
Ltd. Both reviews attack one award issued by Commissioner Dumisane
Johannes Ngwenya. On 22 February 2017, this court ordered
that the
two reviews be consolidated and heard together. Accordingly on 18
October 2017 I heard argument on the consolidated matters.
I hasten
to mention that in the Pick N Pay review, Lebohang Maeleso did not
file an answering affidavit. Otherwise both reviews
as now
consolidated are opposed and I shall for the purposes of this
judgment treat them as such.
[2]
This matter raises important
questions which impacts on the so-called empowerment deals.
[2]
Commissioner Ngwenya made an award to the effect that the respondents
(Pick N Pay and Assist Bakery) are joint or co-employees
(
sic
)
meaning co-employers of the applicants (Messers Lethabo Masoga and
Lebohang Moeleso) within the meaning of section 200B. Both
respondent(s) are thus jointly and severally liable to accord to the
applicants the comparable treatment no less favourable than
their
counterparts who are the permanent employees of Pick N Pay who are
performing the same or similar work. The order to be effected
from 1
March 2015.
[3]
Both Pick N Pay and Assist Bakery were aggrieved by the award and
launched separate review applications, later consolidated.
Background
facts
[4]
On or about 1 August 2014, Assist Bakery
115 CC and Pick N Pay entered into three separate agreements, namely
the Association Agreement,
Manufacturing and Supply Agreement and
Participation Agreement. All the three agreements were termed
Empowerment Scheme Agreements.
Parties to the Association Agreements
are Assist Bakery 115 CC on the one hand and Mhlanga, Maluka, Mzamo
and Mthethwa on the other.
Parties to the Manufacturing and Supply
Agreement are Pick N Pay Retailers (Pty) Ltd on the one hand and
Assist Bakery 115 CC on
the other. Participation Agreement was a
tripartite agreement. Parties thereto were Pick N Pay Retailers
(Pty), Assist Bakery 115
CC and the Participants (Mzamo, Mhlanga,
Maluka and Mthethwa)
[5]
All the agreements were for a limited
duration of five years. Pursuant to empowerment scheme, both Moeleso
and Masoga (collectively
the employees) were employed from 1 March
2015 on 12 months fixed term contracts of employment. The agreements
were to expire on
1 March 2016. They were employed as bakery
assistants (pickers).
[6]
On 19 November 2015, the employees referred
a dispute to the CCMA. They categorized the dispute as being one of
section 198A (Labour
Broker), they cited Pick N Pay as a party that
controls access to the premises where they work and Assist Bakery 115
CC as a Temporary
Employment Services (TES). They required as the
results, to be deemed permanent by the client (Pick N Pay).
[7]
On 9
December 2015, the dispute so referred was certified to be
unresolved. It appears so that Commissioner Ngwenya attempted
conciliation,
whereafter he categorized the dispute as one in terms
of section 198B and D and directed the dispute to arbitration.
[3]
On the same day the employees completed a request for
arbitration. What was in dispute according to the request form was
a
dispute related to section 198B and D. As outcome they sought the
following: “
We
would like the commissioner to make Pick N Pay us permanently (sic)
and make Pick N Pay pay us for operating Reach Truck
and Fork
Lift and same salary as Pick N Pay permanent and benefits
”
[4]
[8]
On 17 February 2016, the arbitration sat.
Given the poor state of the arbitration transcript, it is difficult
to establish what
the Commissioner identified as the true nature of
the dispute. However in his award he stated that the issue to be
decided was
whether Pick N Pay is the employer of the Applicant
(employees) and if so, whether the applicants (employees) are
entitled to pay
parity within the meaning of section 198.
[9]
After hearing evidence and arguments, on 1
March 2016, the commissioner published his award. The applicants
before me were aggrieved
and approached this court.
Grounds
of Review
[10]
As mentioned before there were two applications,
which were consolidated for the purpose of hearing. The Assist Bakery
115 CC were
only two. The first being that the commissioner failed to
identify the dispute he was required to arbitrate and did not
understand
the dispute he was required to arbitrate. Put differently
the commissioner misconceived the nature of the enquiry he was to
conduct.
The second being that the commissioner misconstrued evidence
and ignored evidence which led to a conclusion that could not have
been reached by another reasonable decision maker. In the alternative
the commissioner’s conclusions are simply wrong in
law and fact
and are reviewable. Similarly, Pick N Pay raised two grounds which
are similar to those of Assist Bakery 115 CC.
Evaluation
[11]
Determining what the true nature of the dispute
is, is important for two reasons. Firstly to establish whether the
decision maker
is empowered to entertain the dispute for the parties.
Secondly to ensure that you resolve the correct dispute for the
parties.
All of these is the duty of a commissioner. The referring
party at all times would know what dispute he or she is presenting.
That
being the case, referral documents serve as important source
documents to establish what the dispute is. On the referral forms,
appears the following:
NATURE OF THE DISPUTE. What is the
dispute about? S198A LRA (Labour Broker). SUMMARISE THE FACTS OF THE
DISPUTE: Interpretation/Application
of S198A. RESULT REQUIRED:
Applicants to be deemed permanent by the client company.
[12]
When requesting for arbitration, the employees
identified the issues in dispute to be related to S198B and D. it is
apparent that
after attempting conciliation the commissioner
characterized the dispute as on in section 198B and D. Nonetheless,
the following
was apparent:
WHAT DECISION WOULD YOU LIKE THE
COMMISSIONER TO MAKE: We would like the commissioner
to make Pick
N Pay sign us permanently
and make Pick N Pay
pay us for
operating reach truck and Forklift and same salary as Pick N Pay
permanent and benefits
. (My own underlining)
[13]
On the basis of the above, it is clear that the
employees were yearning to be signed as permanent employees of Pick N
Pay. Once
they are so signed they have to be paid the same salary and
benefits as other Pick N Pay permanent staff. Suffice to mention at
this point in time, they seek no relief against Assist Bakery 115 CC.
It is common cause that the employees were employed on fixed
term
contracts which were to expire on 1 March 2016. This request to the
commissioner they made in December of 2015. When the commissioner
introduced section 198B and D for the parties it must have been clear
to him as a conciliating commissioner at the time true dispute
is not
about temporary employment services. He was not far off the mark when
he identified the dispute to be one for employees
who were on a fixed
term contract for a period of more than three months and wanting to
be deemed to be permanent employees in
terms of the deeming
provisions. Again he was not far off the mark when he identified that
the dispute is about the interpretation
and application of section
198D and such disputes are to be referred to the CCMA.
[14]
Section 198B (3) provides that An employer may
employ an employee on a fixed term contract or successive fixed term
contracts for
longer than three months of employment only if (a) the
nature of the work for which the employee is employed is of a limited
or
a definite duration; or (b) the employer can demonstrate any other
justifiable reason for fixing the term of the contract. Section
198B
(5) provides that employment in terms of a fixed term contract
concluded or renewed in contravention of subsection 3 is deemed
to be
of indefinite duration.
[15]
Section 198D (1) provides that any dispute arising
from the interpretation of sections 198A, 198B and 198C may be
referred to the
Commission or Bargaining Council with jurisdiction
for conciliation and, if not resolved to arbitration.
[16]
Therefore,
in the light of the above, the true nature of the dispute is one
about interpretation and application of section 198B.
It is apparent
that on or about 29 January 2016, the employees were made offers to
be permanent by their employer Assist Bakery
115 CC.
[5]
The employees held a view that their employer was Pick N Pay and not
Assist Bakery 115 CC anymore. It was common cause throughout
the
arbitration proceedings that the fixed term contract which would have
exceeded the three months period contemplated in section
198B (3) was
with Assist Bakery 115 CC.
[17]
What follows is the question whether the
commissioner arbitrated a dispute about interpretation and
application of section 198B.
In order to establish that regard must
be heard to his award. In there he stated that the issue to be
decided by him is whether
Pick N Pay is the employer and if so
whether the applicants are entitled to parity within the meaning of
section 198. Judging by
the award made by the commissioner it does
seem to me that the commissioner had in mind section 198 (5) when
reference was made
to within the meaning of section 198.
[18]
Section 198 (5) provides that an employee deemed
to be an employee in terms of subsection 3 (b) must be treated on the
whole not
less favourably than an employee of the client performing
the same or similar work, unless there is a justifiable reason for
different
treatment. Subsection 3 (b), provides that For the purposes
of the Labour Relations Act, an employee not performing such
temporary
service for the client is deemed to be the employee of that
client and the client is deemed to be the employer and subject to the
provisions of section 198B, employed on an indefinite basis by the
client.
[19]
In terms of section 198(1), temporary service
means work for a client by an employee (a) for a period not exceeding
three months;
(b) as a substitute for an employee of the client who
is temporarily absent; or (c) in a category of work and for a period
of time
which is determined to be a temporary service by a collective
agreement concluded in a bargaining council, a sectorial
determination
or a notice published by the Minister in accordance
with the provisions of subsections (6) to (8).
[20]
For section 198A (5) to kick in the employees
before the Commissioner ought to have been deemed to be such in terms
of subsection
3 (b). The question is when they performed services to
the client as alleged were they performing temporary services or not?
If
they were then their employer is Assist Bakery 115 CC and if they
were not they are deemed to be the employees of Pick N pay and
if
they performed those services for longer than three months then they
are deemed to be for an indefinite period if the exceptions
in
subsection 3 (a) and (b) of section 198B does not arise.
[21]
To my mind
subsection 3(b) of section 198A is to cater for situations where a
person was placed by a temporary employment service,
but after three
months he or she continues to perform services for the client. The
new dispensation brought about by the amendments
is that temporary
service must not be for more than three months. If a client retains a
temporary employee for more than three
months he or she runs the risk
of being deemed an employer and for an indefinite period if section
198B (3) is contravened. The
LAC in
Numsa
v Assign Services and others
[6]
had the following to say:
[36]
What s189A(1) [
I think reference is made to 198A (1)]
does is
to place emphasis on the nature of the services as defined and not on
the person rendering the service or the recipient
of the services
per
se
to determine who the employer of the
placed worker
is.
What it therefore means is that a
placed worker
…is not
rendering a temporary service for the purposes of s 198(A) and
therefore not an employee of a TES. Put it differently,
a service by
a
placed worker
which does not fall within the category
defined above and which is in excess of a three month period is not a
“temporary
service” for the purposes of s198A (1) of the
LRA.
[37] In
order to ascertain who the employer of
the placed worker
in
that position for the purposes of the LRA is, one is enjoined to
resort to the provision s198A (3) (b). Such a worker is therefore
deemed to be the employee of the client and the client is deemed to
be the employer of the worker. Furthermore, a worker in this
situation is subject to the provisions of s198B, employed by the
client of the TES on an indefinite basis. [My additions and emphasis]
[22]
Returning to
the question whether the commissioner determined the dispute about
interpretation and application of section 198B,
which was the true
dispute before him. One of the issues involving interpretation of the
section is who is the employer referred
to in section 198B (3). In
relation to this matter if the evidence showed that the employees
before me were no longer performing
temporary services for the
client, taking into account that if the at some stage they performed
temporary employment services as
defined in section 198 (1)
[7]
. This connection is seen by reference to a client in the deeming
provisions.
[23]
Therefore another aspect to be established by
evidence should be whether Pick N Pay was ever a client of Assist
Bakery 115 CC within
the contemplation of section 198 (1)-providing
the services of the employees before me to Pick N Pay for reward. It
ought to be
remembered that the employees before me were effectively
alleging contravention of section 198B (5). They simply allege that
they
have been on a fixed term employment contract in contravention
of section 198B (3).
[24]
It is common cause that the only employer who
could possibly have contravened the provisions of section 198B (5) is
Assist Bakery
115 CC. I say so because only Assist Bakery 115 CC
employed the employees before me on a fixed term contract.
[25]
It seems to me that regard being had to the award
the commissioner identified the true nature of the dispute but chose
to deal with
an extraneous question. Earlier I stated that one of the
issues to be dealt with within the interpretation of section 198B is
who
is the employer referred to in section 198B (3). It must
logically follow that the employer should be one that employs an
employee
on a fixed term contract. This question is different from
whether there was an employer and employee relationship. In his award
he said:
[17] The
respondent [I assume reference is made to Assist Bakery 115 CC]
stipulated to the fact that
the applicants’ fixed term contract
was concluded in contravention of section 198B [assuming section 198B
(5)] and thus invalid
thereby rendering same as an indefinite
contract from inception. The issue left to
be determined was
whether Pick N Pay was the employer of the applicants
. [My
additions and emphasis]
[26]
It is unclear to me why he had to determine
whether Pick N Pay was an employer, when he has already found that
Assist Bakery 115
CC is the one that contravened the law. If truly he
was interpreting and applying section 198B, he ought to have issued
an award
to the effect that Assist Bakery 115 CC is deemed to be an
employer for an indefinite period. By so doing he would have
interpreted
and applied the section which was the dispute before him.
[27]
The fray he
was to enter was to determine whether an employer and employee
relationship between the employees before me and Pick
N Pay existed.
In a true employer and client situation, he had to seek the answer
from section 198(A) (3) (b)
[8]
.
To show that he was not dealing with the employer and client
situation, he sought to determine the issue of who the employer was
with reference to the Agreements. In doing so he does not suggest
that the employees before me were “placed workers”.
The
test to determine whether an employer and employee relationship
exists was somewhat perfected by the LAC in
State
Information Technology Agency (Pty) Ltd v CCMA and others.
[9]
The court per Davis JA held thus:
[12] For
this reason, when a court determines the question of an employment
relationship, it must
work with three primary criteria:
1
an employer’s right to supervision and control;
2
whether the employee forms an integral part of the organization with
the
employer; and
3
the extent to which the employee was economically dependent upon the
employer.
[10]
[28]
However what the commissioner did was to examine
the commercial contracts dealing with the empowerment scheme. Having
done that
he came to the following conclusion in relation to the
question he left for himself:
[21] All
the above mentioned facts establish the close association of the
business of the respective
enterprises, Pick N Pay and Assist Bakery.
It further establish the fact that the reality of
the facts is
that there is an employment relationship between Pick N Pay and the
applicants despite the agreement stipulating otherwise.
[My
emphasis]
[29]
Having made
that conclusion without following the LAC decision
[11]
,
he then jumped to section 200B. It is instructive to note that he
does not apply the deeming provisions. He used the facts. By
that time he had determined an issue that does not fall within the
dispute and most importantly without warning and or giving Pick
N Pay
an opportunity to lead evidence on the criteria set by the LAC. This
amounts to gross irregularity. The applicants in particular
Pick N
Pay did not enjoy a fair trial of issues.
[30]
At no stage during the arbitration did any of the
parties request the commissioner to determine any issue arising out
of section
200B. The employees never alleged that Pick N Pay is a
co-employer. All what they wanted was for the commissioner to ask
Pick N
Pay to sign them as permanent employees and to be afforded
salary and benefits of Pick N Pay permanent employees.
[31]
In the light of the above stated I am of a view
that the commissioner managed to identify the dispute but side
stepped it and somewhat
went on a frolic of his own. Instead of
dealing with the dispute of interpretation and application of section
198B, he determined
employer and employee relationship an issue that
was not before him.
[32]
I shall now deal with section 200B (1). As an
opening gambit, it is my view that the section has far reaching
implications to corporate
South Africa. Much as it serves to promote
social justice, it also may have the effect of damaging the
reputation of corporations.
Imagine a big corporation being found to
have colluded to contravene the law. Such has serious reputational
implications. It is
for the above reason that I hold a view that the
section requires strict purposive interpretation and ought to be
invoke when all
the requirements of it are met in full. Failing to do
so constitutes a serious and material error of law which on the
correctness
or reasonable test vitiates an award.
[33]
The following are the elements of the sub-section,
which require full presence before invocation:
33.1 First and foremost
the section deals with liability for legal obligations.
33.2 It is meant for the
purposes of the LRA.
33.3 It seeks to define an
employer as opposed to creating an employer and employee
relationship.
33.4 There must be
carrying on of an associated or related activity or business.
33.5 It must be through an
employer.
33.6 That carrying on of
an associated or related activity must be intended to defeat the
purpose of this Act or any
other employment law.
33.7 Or the carrying on of
an associated or related activity has the effect of defeating the
purpose.
33.8 Such carrying on of
the associated or related activity can either be direct or indirect.
[34]
To my mind
if any of the above elements lack, the section cannot be validly
invoked. The purpose of the Labour Relations Act is
to be found in
section 1.
[12]
Defeat within the context of the section should mean either to defy
and or frustrate the purpose of the Act. Therefore, it is not
a
requirement for a specific section to be defied or frustrated. It is
enough to show that the purpose of the Act is being defied
nor
frustrated.
[35]
Subsection (2) of the section deals with the
consequences that will follow should subsection (1) be found to have
obtained. The
consequences are joint and several liability for any
failure to comply with the obligations of an employer in terms of the
Act
or any other employment law. It is important to observe that the
section seeks to introduce the concept of joint wrongdoers. It
seems
to me that an employer must have failed to comply with a legal
obligation arising from the LRA or employment law. Once that
is
shown, the person(s) with whom the employer carries on association or
related activity with the sole intention or effect to
defy or
frustrate the purpose of the Act or other employment law will be
liable. On the failure to comply, it does seem that the
legislature
is introducing strict liability on the part of the person.
[36]
On the facts of this case, subsection (2) means
that Assist Bakery 115 CC as the primary employer should have failed
to comply with
obligations arising from the LRA or any other
employment law. Failure to comply in itself is a matter of fact. In
other words,
there must be evidence that, in this instance, Assist
Bakery 115 CC has failed to comply with section 198B (5). The
commissioner
records in his award that “
The
respondent stipulated to the fact that the applicants’ fixed
contract was concluded in contravention of section 198B..”
[37]
I am not sure what this “
stipulation
”
mean. Does it mean an admission or what? There we go, the court of
review is left guessing. Nonetheless the transcript although
poor
reflects the following:
RESPONDENTS
REPRESENTATIVE
:
The second respondent concedes that through the workings of uh
section 198B of the Labour Relations Act the uh both applicants
became its permanent employees uhm three months after the
commencement of the amended section being uhm uh April 2015 they
would
have been construed as permanent employees of the second
respondent.
RESPONDENTS
REPRESENTATIVE
:
Without getting to (sic) technical in terms of section 198B of the
Labour Relations Act uhm the applicants are now permanent.
RESPONDENTS
REPRESENTATIVE
:
Even though they signed a fixed term contract of employment was
longer than three months which is in contravention of section
198B so
the second respondent concedes that they are permanent from April
2015.
[38]
In the light of the above, it seems to me that
stipulation means an admission of contravention from April 2015. It
seem clear that
as at the time of arbitration, Assist Bakery 115 CC
had regularized the situation. Put it differently, they were
compliant. The
commissioner does not mention this fact in his award.
This simply means that at the time of ordering joint and several
liability
he was dealing with a “has been” as opposed to
current non-compliance. Assuming that the situation was still
obtaining
at the time, the appropriate award to make is that Pick N
Pay has also contravened section 198B (5) of the Act. Instead of
doing
that he resorted to section 198A (5) which deals with temporary
service, which was not the case before him.
[39]
In order to
observe the purpose of section 200B one must have regard to the
Memorandum on the objects of the Labour Relations Amendment
Bill
2014.
[13]
The LAC in
AMCU
v Buffalo Coal Dundee (Pty) Ltd and others
[14]
had the following to say about section 200B:
[28] The
party who wants to invoke
section 200B must not only
show
that the persons are carrying on or conducting an associated or
related business but also that the intent or effect of doing so is
or
was to directly or indirectly defeat the purpose of the Act or any
employment law…They failed to
prove
that there was an
intention to directly or indirectly defeat the purpose of the Act or
any other employment law neither did they
prove
that the
effect of the business arrangement was to indirectly directly
undermine the purpose of the Act or any other employment
law.
[40]
It is clear
from the dictum of this judgment that the section ought to be invoked
by a party. In this matter the employees before
me did not invoke the
section. Also the employees ought to have proven
[15]
through evidence that the intention of the empowerment scheme was to
defeat the purpose of the law and or that the effect of the
scheme
was to undermine the law. Generally, empowerment schemes are within
the BEE legislation.
[16]
[41]
It is very clear that invocation of section 200B
was misguided. To conclude that the scheme or Agreement as the
commissioner choose
to call it has the effect of prejudicing rights
of the applicants to be treated on equal footing with the employees
of Pick N Pay
while they are performing the same and or similar work
defeats the purpose of the Act without an iota of evidence is in
itself
an irregularity. The purpose of the Act is not about
individual prejudices but it is about social justice.
[42]
The test for
review does not require repetition at every turn. It is trite that
only decisions that a reasonable commissioner cannot
make are
reviewable. In terms of the well-known authority of
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[17]
, an irregularity prevents a fair trial of issues.
[43]
In
Assign Service
the LAC had the following to say:
[32]
An incorrect interpretation of the law by a commissioner is,
logically, a material error of law
which will result in both an
incorrect and unreasonable award. Such an award can either be
attacked on the basis of its correctness
or for being
unreasonable.
[18]
[44]
It is crystal clear that the commissioner in this
matter interpreted the law incorrectly and his award is not correct.
An incorrect
award is not awaited from a reasonable commissioner nor
does it fall within the bounds of reasonableness.
What
now?
[45]
I am inclined to review and set aside the
commissioner’s award. The question I have to consider is
whether I should remit
or not. The applicants are correct when they
say the commissioner did not understand the dispute he was required
to arbitrate.
Put differently he arbitrated a wrong dispute.
Ordinarily in such circumstances, the court ought to remit as it
cannot usurp the
powers of the commissioner.
[46]
However this matter presents unique circumstances.
It is common cause that at some stage Assist Bakery 115 CC
contravened section
198B (5), but that situation was regularized
before arbitration. Such to me entails that there is no longer a live
dispute about
interpretation and application of section 198B, which
was the dispute the commissioner was empowered to arbitrate.
Accordingly,
it will be pointless to remit since there is no longer a
dispute. It will not serve the interest of justice to remit. To my
mind
although the commissioner had jurisdiction to arbitrate, he
arbitrated a wrong dispute, therefore his award is actually a
nullity.
For the reasons set out above I am not to remit.
Is
Pick N Pay an employer of the employees?
[47]
For completeness sake and solely to avoid further
litigation, I feel constraint as a court of review to determine this
question
once and for all. It does seem that the applicants applying
the three months “ban” of fixed term contracts, they
sought
to be made permanent. Indeed in the absence of a justification
their definite employment is prohibited. But where they got it wrong
in my view is to believe that Pick N Pay was deemed their employer.
Yes, if Pick N Pay was perhaps the client of Assist Bakery
115 CC
within the contemplation of section 198A (1) the provisions of
section 198A (5) could come to their favour.
[48]
However there is no shred of evidence that Pick N
Pay was a client of Assist Bakery 115 CC, nor is there evidence that
Assist Bakery
115 CC was a TES. Accordingly it is my considered view
that Pick N Pay is not the employer of the employees before me.
[49]
In summary, the commissioner did commit a
reviewable irregularity and accordingly his award is reviewable in
law.
[50]
Regarding costs, I am of a view that an
appropriate order is for each party to bear its own costs.
[51]
In the results I make the following order:
Order
1.
The arbitration award issued by Dumisane Johannes
Ngwenya under case number GAEK9539-15 issued on 1 March 2016 is
hereby reviewed
and set aside.
2.
It is replaced with an order that Pick N Pay
Retailers (Pty) Ltd is not the employer of Lethabo Masoga and
Lebohang Moeleso.
3.
Each Party to pay its own costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr N Preston (Assist
Bakery 115 CC matter) and G Damant (Pick N Pay
matter)
Instructed
by:
Cliffe Dekker Hofmeyr Inc, Sandton and Bowman Gilfillan Inc, Sandton
respectively.
For
the Respondents: Mr C
Bosch
Instructed
by:
Lawyers for Human Rights, Braamfontein.
[1]
Act 66 of 1995 as Amended.
[2]
Black Economic Empowerment (BEE) is a racially selective programme
launched by the South African government to redress the inequalities
of the Apartheid by giving certain previously disadvantaged groups
of South African citizens’ economic privileges’
previously not available to them under the white rule. There is
legislation and Codes gazetted to ensure empowerment. Therefore
BEE
plays a pivotal role in ensuring transformation of the South African
Society. Wherever it happens it should not be undermined
given its
worth to the transformed South Africa.
[3]
See page 122 Bundle Assist matter.
[4]
Page 121 Assist Bundle
[5]
Pages 131 and 132 of the Assist File. It does seem that the
employees did not accept the offer to be made permanent by Assist
Bakery 115 CC but wanted permanency with Pick N Pay. Paras 27 and 28
Founding Affidavit by Mzamo and paragraph 48 of Lethabo
Masoga
Answering Affidavit. Read with paras 27 and 28 of the Assist
Affidavit and
[6]
Case no: JA 96/15 delivered on 10 July 2017. Apparently on appeal at
the Constitutional Court.
[7]
In this section temporary employment services means any person who,
for reward, procures for or provides to a client other persons.
[8]
Paragraph 37 of
Assign
Services supra
.
[9]
(2008)
29 ILJ 2234 (LAC) par 12
[10]
Page 2238 par 12 I
[11]
Ibid 6
[12]
The purpose is to advance economic development, social justice,
labour peace and the democratisation of the workplace by fulfilling
the primary objectives of the Act, being: (a) to give effect to and
regulate the fundamental rights conferred by section 23 of
the
Constitution of the Republic of South Africa 1996, (b) to give
effect to the obligations incurred by the Republic as a member
of
the ILO.
[13]
It states that insertion of section 200B of Act 66 of 1995: A new
section is inserted to prevent simulated arrangement or corporate
structures that are intended to defeat the purpose of the LRA or any
other employment law, and to provide for joint and several
liability
on the part of persons found to be employers under this section for
any failures to comply with the employer’s
obligations under
the LRA or any employment law. This is particularly important in the
context of subcontracting and outsourcing
arrangements if these
arrangements are subterfuges to disguise the true employer.
[14]
Case no: JA42/2015 delivered on 11 May 2016.
[15]
See Metcash Trading Africa (Pty) Ltd v Goddard ( DA 14/2010)
[2011]
ZALAC 36
(14December 2011)
[16]
They cannot be seen as simulated arrangements or subterfuge.
[17]
[2007] BLLR
1097 (CC)
[18]
Footnote omitted.