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[2017] ZALCCT 70
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Kiyega v Commission for Conciliation, Mediation and Arbitration and Others (C818/2016) [2017] ZALCCT 70 (29 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no:
C818/2016
In
the matter between:
FRED
WASSWA
KIYEGA
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
C
WEST
Second Respondent
SAWIC
CNPO
Third Respondent
Heard
:
25 August 2017
Delivered
:
29
September 2017
Summary:
A review application that is not supported by a compliant
affidavit is fatally defective. A party should set out legal grounds
upon
which a party seeks to rely in order to correct or set aside a
decision. Determining whether an employer and employee relationship
existed behoves a party claiming to be an employee to present
evidence in support of any of the factors set out in
Section 200A
of
the
Labour Relations Act 66 of 1995
as amended. An employee is one
who works for another and is entitled to receive or receives
remuneration. Payment in kind ought
to be proven and shown by a
person claiming to be an employee. Existence of employer and employee
relationship is not determined
by what happens and is said by one
party at the end of the relationship but by what factually happened
during the relationship.
A person who is offered a place to stay in
exchange of maintaining and looking after the place cannot claim to
be an employee of
the Landlord simply on the basis that he or she is
staying for “free” and maintains the place. Such a person
is a tenant
who instead of paying for rent in cash, pays it in
kind-maintaining and looking after the property. The test for
determining whether
one is an employee considered and confirmed. The
review test is one of wrongfulness or rightness of the decision
taking into account
the objective facts presented before the
arbitrator. Held (1) the application is fatally defective. Held (2)
the facts objectively
viewed do not create an employer and employee
relationship. Held (3) the review application is dismissed. Held (4)
No order as
to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an unopposed application to review and set aside a
jurisdictional ruling issued by the second respondent on 31 October
2016, in terms of which, it was ruled that the applicant was never
employed by the third respondent therefore there was no dismissal.
Background
facts
[2]
The facts of this matter are gathered from various
documents. Unfortunately, the applicant was not legally assisted at
the time
of filling the review papers. The only facts relayed by the
applicant commence on 16 September 2016. The transcript is also not
too helpful in narrating the facts in a rather logical and
comprehensible manner.
[3]
Perusal of the transcript, the award and the
founding affidavit reveals that apparently around 2012, the
applicant, who at the time
was employed at Table Bay or Bayside Mall
as a car guard, met up with one Ntsikie, who was then the Chairperson
of the third respondent.
According to the applicant he was asked if
he had a place to stay, because the third respondent was looking for
someone who can
look after the property. That person will not be
charged rental.
[4]
He was told that the person the third respondent
was looking for would be someone to look after the house, clean the
garden and
keep the house clean. He was told that they know he is
working as a car guard but could he look after their premises so that
it
would not be vandalized. The applicant expected to be paid
R4000.00 as per the sectorial determination. However, he was never
paid
a cent for a period of four years. According to him he was
working for
free
.
According to the third respondent, the applicant was offered a place
to stay without paying rental in order to look after the
property.
[5]
The property at which the applicant was offered a
place to stay belonged to a government department. At some point the
department
informed the third respondent that it no longer needed
tenants at the property. A meeting was then held with the applicant
where
he was told of the department’s position. He was asked to
leave as he no longer attended to the garden as initially agreed
and
he did not contribute towards the electricity bill. In the said
meeting he agreed to contribute R500, towards the electricity
bill,
as he was not earning much.
[6]
On 16 September 2016, the applicant received a
letter which read thus:
“
Sawic
landlords hereby give (sic) Fredie thirty (30) days notice to vacate
the Savic Office 31 Orange Street Cape Town.
The reason for the
eviction
:
·
You
are no longer in partnership with SAWIC
·
No
longer the Security for the building
·
You
are no longer doing your duties that you were appointed to do.
If
you remain in the dwelling on the date specified for the owner might
seek to enforce the termination only by bringing judicial
action at
which time you may present a defence. If you request a meeting the
owner/ landlord or its agent will discuss the proposed
termination
with you. You are hereby advised of your right to defend this action
in court. Your failure to object to the termination
notice shall not
constitute a waiver of your rights to thereafter content (sic) the
owner’s action in any court proceeding.”
[7]
The third respondent’s officials as
landlords signed the letter. The applicant was aggrieved as he had
bought a car and had
not vandalized the property nor was he given the
tools of trade. He approached the Commission for Conciliation,
Mediation an Arbitrtion
(CCMA) and reported “matters and what’s
going on”. On 21 October 2016, the CCMA enrolled the dispute
for con/arb.
The third respondent then objected to the jurisdiction
of the CCMA on the basis that the applicant was never employed by it.
This
objection was upheld hence the present application.
Grounds
of Review
[8]
This
application is in fact defective in that no specific grounds have
been spelled out in the founding affidavit.
[1]
The applicant’s affidavit does not set out the legal grounds
upon which the jurisdictional ruling ought to be corrected.
The Court
does appreciate that the applicant is a layperson and drafted his
papers without legal assistance. Upon obtaining
pro
bono
assistance, the papers were not supplemented to set out legal
grounds. Therefore, there are no legal grounds upon which this ruling
could be attacked. This defect is actually fatal to the applicant’s
review application. On this basis alone, the application
is bound to
fail.
Evaluation
[9]
The test for
review in matters of this nature is whether the arbitrator was right
or wrong
[2]
in making the decision that there was no employer employee
relationship. Although the defect is fatal the Court considers the
application in the interest of justice to determine whether the
decision was right or wrong. Bodies like the CCMA make jurisdictional
rulings for convenience and such rulings do not bind this Court.
[10]
This matter
exhibits important legal issues regard being had to the interesting
factual matrix it presents. Mr Naidoo appeared
pro
bono
on behalf of the applicant. He filed good heads of argument
[3]
which actually brought to the fore the test of determining whether an
employer and employee relationship exists. In his submission
the
applicant was an employee within the contemplation of section 213 of
the Labour Relations Act
[4]
(LRA) read with section 1 of the Basic Conditions of Employment
Act
[5]
(BCEA), defining remuneration. He submitted that the free rental was
in effect a payment in kind. The fact that the applicant cleaned
and
looked after the property meant that he worked for the third
respondent, which in turn paid the applicant by providing him
with
free
accommodation.
[11]
He further submitted that as contemplated in
section 200A of the LRA, the applicant is presumed to be an employee.
He suggested
that the applicant fits the definition of a domestic
worker in section 1 of the BCEA.
[12]
The second respondent concluded that the applicant
does not fit the definition of an employee in section 213 of the LRA.
She could
not ignore the fact that the applicant never received a
salary for four years. The letter of 16 September was nothing but an
eviction
letter. To these conclusions, Naidoo argued that the second
respondent focused her attention to a cash salary and ignored the
fact
that the applicant was paid in kind-being provided free
accommodation. Also the second respondent found that there was no
evidence
that the applicant was subject to the respondent’s
control. To this Naidoo submitted that indeed there was no evidence
but
the second respondent should have engaged in an inquisitorial
approach to extract such evidence. He also submitted that applying
the principle of
res ipsa loquitur
,
the second respondent could have easily concluded that there was
control.
Was
the applicant an employee?
[13]
Section 213 of the LRA defines what an employee
is. The third respondent disputed that the applicant worked for it.
Such to my mind
behooved the applicant to present evidence that
demonstrated that he indeed worked for the third respondent. The
principle of he
who alleges must prove applies in this regard. There
is no evidence as to what work the applicant was performing and under
whose
supervision. Before the second respondent, his evidence is
recorded as follows:
“
MR
F.W KIYEGGA: My case-I was working there as a security, I’ve
got the Certificate. I’ve got everything and then, because
South African Government, he said, we are not going-I was working in
(07:17) as a Security and then they said “NO this year
we must
have a certificate” and then I started working as a Car Guard
until now. Working as a car guard, one of the members,
he came and
said, “Please come and watch our property”.
[14]
On his own version as recorded above, it is clear
that he worked elsewhere as a car guard. All the member said to him
was that he
must come and watch the property. No other details were
given to him as to whether watching the property will be compensated
for
and how. Employment agreements like any other agreement ought to
be preceded by meeting of minds. He led no evidence as to how he
watched the property if at all he considered this to be his work. The
record reflects that he was never given anything to sign
and was
never provided with the tools to clean the compound. On his own
version the applicant never worked for the third respondent.
From the
definition in section 213 the person must be remunerated or be
entitled to be remunerated for the work done. At one stage
the
applicant testified that he was being paid R4000.00. As he was unable
to produce proof thereof, he testified thus:
“
COMMISSIONER:
So you worked for free, basically, for 4 years?
MR F.W KIYEGA: Like I was working for
free.
COMMISSIONER: OK”
[15]
Contrary to the submission by Naidoo, the
applicant did no testify that he was paid in kind (free
accommodation). So one of the
crucial elements of being an employee
is lacking. Nowhere in his evidence did the applicant unequivocally
testify that his remuneration
was in kind as later submitted in this
Court. On the contrary, the applicant attempted to claim a salary in
cash and upon being
quizzed; he testified that he never received any
payment. This alleged payment in kind only emerged in argument. Again
any employee
who alleges any payment in kind must submit evidence to
support the allegation. Payment in kind may be made for an exchange
of
goods or services for work performed. The value of the goods or
services is considered an equal exchange for the work performed.
[16]
Ordinarily a tenant must pay for his or her
tenancy. In a situation where a tenant is not required to pay in cash
but in kind (providing
some services) such does not give rise to an
employment relationship. A tail cannot wag the dog. In other words,
one must perform
work first and thereafter be paid, be it by cash or
in kind. However, the applicant working as a car guard was fortunate
to have
accommodation that does not require rental in cash but in
kind.
[17]
In order for
the section 200A presumption to kick in, evidence must be adduced by
an employee. The section requires certain factors
to be present. The
only way to demonstrate that any of the factors is present, evidence
must be led. In this matter it is common
cause that the applicant led
no evidence that he was subject to the control of the third
respondent. The applicant led no evidence
as to his working hours. He
led no evidence as to the directions that were given to him by the
third respondent. I cannot agree
with Naidoo that the second
respondent was compelled to extract such evidence. It is not the duty
of an arbitrator to assist any
of the parties appearing before him or
her no matter how lay the party may be
[6]
.
Further I cannot agree that the principle of
res
ipsa locutur
applies in this matter.
[18]
The letter of 16 September is not proof of an
employment relationship. The letter was written and signed by the
officials of the
third respondent as landlords. The fact that the
letter makes reference to a partnership does not point to the fact
that the applicant
was an employee. The fact that reference is made
to no longer doing your duties that you were appointed to do does not
suggest
an employment relationship. When determining whether there
was an employer and employee relationship one has to consider what
factually
happened during the tenure of the alleged relationship?
There is no evidence that the applicant was appointed to do duties.
On
the contrary, the applicant was allowed to stay in the property
for as long as he does gardening and cleaning. As pointed out earlier
the evidence does not demonstrate that the applicant will clean and
in return be accommodated
(payment in
kind
as it is now contended).
[19]
It was not disputed that the applicant worked
elsewhere whilst staying at the place he was accommodated. Clearly
the applicant was
not economically dependent on the third respondent.
The applicant testified that he was using his own money to maintain
the room
he was accommodated in. He bought the door and the rates for
the windows. He testified as follows:
“
When
they break, and then I go in the Parking and then I got money and
then I fix the stuff, because I don’t want to sleep
outside…”
[20]
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 Commission for
Conciliation, Mediation and Arbitration and others.
[7]
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.”
[8]
[21]
Further, in
the case
Colonial
Mutual Life Assurance v MacDonald
[9]
it was said
“…
.
one
thing appears to me to be beyond dispute and that is that the
relation of master and servant cannot exist where there is a total
absence of the right of supervising and controlling the workman under
the contract; in other words, unless the master not only
has the
right to prescribe to the workman what work has to be done, but also
the manner in which such work has to be done…”
[22]
Applying the criteria to the facts of this case
depicts that the applicant was not an employee of the third
respondent. The third
respondent did not stake any right to supervise
and or control the applicant. The right to supervise and control does
not necessarily
mean the exercise of that right. For an example a
pilot employed by a particular airline flies the plane unsupervised
but yet under
the control of the airline in terms of when to fly the
plane and to where. Of importance is the right to do so. If it is
brought
to the attention of the airline that a pilot in flying the
plane does not observe certain rules, it is the prerogative of the
airline
to supervise his or her flying. In the matter before me there
is no
iota
of evidence that such a right was available to the third respondent.
[23]
On the evidence, it is clear that the applicant
did not form an integral part of the organization. On the applicant’s
own
version, the third respondent kept on changing Chairpersons
without him knowing. They come for meetings and say nothing to him
for months on end. If he was part of the organization, he would have
known of the meetings even if not forming part of those meetings.
On
the objective facts the applicant does not meet the criteria.
[24]
In
Dempsey
v Home and Property
[10]
the Court considered that the lack of integral factors regarding
employment relationships would lead to a conclusion that the contract
was not one of employment. The following factors should be taken into
consideration:
“…
The
contract between the parties made no reference to leave, sick leave
or any other terms or conditions customarily forming part
of a
contract of service. The appellant was not even required to tender a
medical certificate in respect of periods of absence
due to illness
or incapacity. …’
[25]
When taking all the above factors into account,
the dominant impression created is that the applicant stayed at the
accommodation
for free in return for maintaining and securing the
property.
[26]
The third
criterion simply implies that the applicant must depend on the third
respondent for survival. Naidoo submitted that the
fact that the
applicant was offered accommodation means that the applicant was
economically dependent on the third respondent.
I cannot agree. In
this regard, Benjamin
[11]
aptly observed thus:
“
A
starting point is to distinguish personal dependence from economic
dependence. A genuinely self-employed person is not economically
dependent on their employer because he or she retains the capacity to
contract with others. Economic dependence therefore relates
to the
entrepreneurial position of the person in the marketplace. An
important indicator that a person is not dependent economically
is
that he or she is
entitled
to offer his skills or services to persons other than his or her
employer
.
The fact that a person is required by contract to only provide
services for a single ‘client’ is a very strong
indication
of economic dependence. Likewise depending upon an
employer
for
the supply of work is a significant indicator of economic
dependence.
[12]
(Own
emphasis)
[27]
In
casu
the applicant offered his services to other people as a car guard
without any reference to and or permission from the third respondent.
The third respondent knew that he worked elsewhere and only stayed at
the premises. A true employer will not allow or permit his
employee
to work for somebody else without its permission or consent.
[28]
The applicant earned income from being a car guard
and actually used part of the income to maintain the place where he
stays with
the blessings of the third respondent. There was no shred
of evidence to suggest that the applicant was supplied with work by
the
third respondent. Accordingly, the applicant failed to meet this
test too.
[29]
It is worth emphasizing that it is incumbent on a
person staking the claim of being an employee to demonstrate through
credible
evidence any of these criteria. Even in a situation of
presumptions within the contemplation of section 200A of the LRA, it
is
still incumbent on the person staking the claim to present
evidence which shows the existence of any of the factors. Once that
is done the rebuttable presumption kicks in. Therefore, if an
applicant fails to establish the presence of any of the factors,
there is no onus to rebut on the part of an employer. The applicant
in this matter failed to invite the presumption by not adducing
evidence which demonstrates presence of any of the factors.
Conclusions
[30]
The
definition in section 213 of the LRA helps only to determine who an
employee is. On a matter like this what is important are
the criteria
to determine what an employee is. Often times a person may attempt to
fit oneself within the definition of an employee.
If the criteria is
not applied even an independent contractor may fit the definition. On
application of the criteria the Court
is satisfied that the applicant
failed to meet any of the criteria. Even on application of the
presumption in section 200A, the
applicant failed to show presence of
any of the factors which will allow a rebuttable presumption to kick
in. What the presumption
does is to presume that a person is an
employee. It does not presume the existence of the factors. On the
contrary, existence of
the factors illuminates the presumption. To
think otherwise is to put the cart before the horses. On proper
analysis of the facts
of this case, the applicant is a tenant.
Protection of his rights lies in the Rental Housing Act
[13]
Accordingly, I am of a firm view that the ruling is not reviewable.
It is in fact correct regard being had to the objective facts.
[31]
In the results, I make the following order:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
For
the Applicant:
Mr V Naidoo of Hayes
Incorporated (Acting
pro bono
), Cape Town
For
the Respondents: No
Appearance.
[1]
Rule 7A (2)
(c) provides that the notice of motion must be supported by an
affidavit setting out the factual and legal grounds
upon which the
applicant relies to have the decision or proceedings corrected or
set aside.
[2]
Madondo
v SSSBC and others
[2015] JOL
32795
(LC) at para 48.
[3]
The court expresses its gratitude towards Mr Naidoo for the sterling
work done.
[4]
Act 66 of
1995 as amended.
[5]
Act 75 of
1997.
[6]
The
helping hand
principle has been doubted in subsequent cases.
[7]
(2008)
29 ILJ 2234 (LAC) para 12
[8]
Page 2238 para 12 I
[9]
1931 AD 412
at 434.
[10]
(1995) 16
ILJ
378 (LAC) at 384F-G.
[11]
An accident of History: Who is (and Who Should Be) an Employee under
South African Labour Law [2004] 25 ILJ 787
[12]
Page 803.
[13]
Act 50 of 1999