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[2017] ZALCCT 48
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Kohliso v Secuforce Security Services and Another (C672/2016) [2017] ZALCCT 48 (11 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
Case
no: C672/2016
In
the matter between:
MLAWULI
SHADRACK
KOHLISO
Applicant
and
SECUFORCE
SECURITY
SERVICES
First
Respondent
COMWEZI
SECURITY
SERVICES
Second
Respondent
Heard
:
9 May 2017
Delivered
:
11 October 2017
JUDGMENT
RABKIN-NAICKER
J
[1]
Mr Mlawuli Shadrack Kohliso (Kohliso) seeks to enforce an award
against the second respondent under case number WE 15028-06.
His application is unopposed.
[2]
Kohliso was employed by the first respondent from the 17 July 2003.
In around April 2004 he was promoted to the position of
Area Manager.
In 2006 there was a strike in the security sector and he avers he was
forced to stay at home. On his return towards
the end of 2006 he was
charged in a disciplinary hearing and dismissed.
[3]
His union (Duwuso) referred a dispute to the CCMA and an arbitration
hearing was held. He was awarded back-pay of R10 494-00
and
reinstatement in an Award dated 26 December 2006. The first
respondent took the said Award on review and the review was dismissed
on 1 September 2009.
[4]
In November 2009, a writ of execution was issued by the labour court
and Kohliso was advised that the first respondent had been
liquidated
and that before this occurred, there had been a transfer of the
business in terms of section 197. Unable to enforce
his award against
the first respondent, he approached the CCMA again to join the second
respondent in the execution proceedings,
but the CCMA found it did
not have jurisdiction to do so. It stated in an
in limine
ruling that his remedy was to approach the Labour Court.
[5]
The
in limine
ruling reflects that a representative of the
second respondent did attend that hearing and denied a transfer had
taken place. Kohliso
was determined to find more evidence of the
transfer to bring to this Court. The second respondent has not seen
fit to oppose this
application.
[6]
Annexed to his affidavit is a memorandum dated 10 March 2009 which
reads as follows:
“
TO: ALL SECURITY OFFICERS
DATE 10 MARCH 2009
RE: CCMA AGREEMENT
In terms of a Memorandum of Agreement
entered into between DUSWO on behalf of their members, who are
currently employed by Secuforce
Security Services CC, and Comwezi
Security Services Pty (Pty) Ltd., concluded under the auspices of the
CCMA, you are advised that:
1. All employees currently employed by
Secuforce will become employees of Comwezi Security Services (Pty)
Ltd. (Comwezi) with effect
from 1 March 2009 and will transfer in
terms of Section 197 (A) of the Labour Relations Act, Act 66 of 1995
as amended.
2. Comwezi will accept responsibility
for outstanding leave and bonuses for these employees for the period
1 March 2008 to 28 February
2009.
3. Comwezi undertakes to pay salaries
for the employees concerned for February 2009 on 28 February 2009.
4. All employees will be subject to
all of Comwezi’s policies and procedures.
5. All the terms related to Section
197(a) including years of service will be applicable to the Agreement
Should you have any further queries in
this regard, please do not hesitate to contact the Branch Manager M
R. Chetty at 021-5115109.”
[7]
The CCMA agreement dated 2 March 2009, signed by the CEO of the
second respondent, Duwuso obo members employed by Secuforce
Security
Services and a CCMA Commissioner, is also annexed to the papers.
It
records that the agreement is in terms of section 197A of the LRA and
that all the terms of that provision “will be applicable
to
this agreement”.
The agreement
also states that:
“The current disputes between Duwuso and Secuforce at the CCMA
have no bearing on or any other link to this
agreement. Duwuso will
pursue those cases against Secuforce and Comwezi would not be cited
to as a party to them.” As of
March 2009, the dispute between
the union on behalf of applicant and first respondent was not a
current dispute at the CCMA.
[8]
Kohliso also includes a copy of the liquidation papers relating to
first respondent, in his application. These reveal that the
first
respondent was placed in final liquidation on the 19 June 2009, a
rule nisi having been issued on the 22 May 2009 by the
High Court of
the Western Cape.
[9]
From the above, the following factual position emerges: At the date
of the agreement in terms of section 197A, on the 2 March
2009,
Kholiso had an arbitration Award in his favour against the first
respondent. The application to review the award by the old
employer
was dismissed some six months after the transfer of the contracts of
employment. Further, prior to the provisional liquidation
of the
first respondent, that Award was binding on the first respondent.
Section 197 (5) of the LRA (which is also applicable to
Section 197A
transfers of contracts of employment) provides that:
“
(5) (a) For the purposes of
this subsection, the collective agreements and arbitration awards
referred to in paragraph (b) are agreements
and awards that bound the
old employer in respect of the employees to be transferred,
immediately before the date of transfer.
(b) Unless otherwise agreed in terms
of subsection (6), the new employer is bound by-
(i) any arbitration award made in
terms of this Act, the common law or any other law;
(ii) any collective agreement binding
in terms of section 23; and
(iii) any collective agreement binding
in terms of section 32 unless a commissioner acting in terms of
section 62 decides otherwise.”
[10]
Section 197A provides that:
“
197A Transfer of contract
of employment in circumstances of insolvency
(1) This section applies to a transfer
of a business-
(a) if the old employer is insolvent;
or
(b) if a scheme of arrangement or
compromise is being entered into to avoid winding-up or sequestration
for reasons of insolvency.
(2) Despite the Insolvency Act, 1936
(Act 24 of 1936), if a transfer of a business takes place in the
circumstances contemplated
in subsection (1), unless otherwise agreed
in terms of section 197 (6)-
(a) the new employer is automatically
substituted in the place of the old employer in all contracts of
employment in existence immediately
before the old employer's
provisional winding-up or sequestration;
(b) all the rights and obligations
between the old employer and each employee at the time of the
transfer remain rights and obligations
between the old employer and
each employee;
(c) anything done before the transfer
by the old employer in respect of each employee is considered to have
been done by the old
employer;
(d) the transfer does not interrupt
the employee's continuity of employment and the employee's contract
of employment continues
with the new employer as if with the old
employer.
(3) Section 197 (3), (4), (5) and
(10) applies to a transfer in terms of this section and any reference
to an agreement in that
section must be read as a reference to an
agreement contemplated in section 197 (6).
(4) Section 197 (5) applies to a
collective agreement or arbitration binding on the employer
immediately before the employer's provisional
winding-up or
sequestration.
(5) Section 197 (7), (8) and (9) does
not apply to a transfer in accordance with this section.”
(
emphasis mine
)
[12]
The Labour Appeal Court has held in relation to section 197(5) that:
‘
The
wording of the section is clear, an arbitration award that can bind
the old employer immediately before the date of transfer
in respect
of the employees to be transferred binds the new employer.”
[1]
[13]
The arbitration award in this matter was binding on the first
respondent immediately before the transfer of its employees to
second
respondent. The Memorandum of Agreement between the union
representing the employees and the second respondent explicitly
states that all the provisions for section 197A are applicable to it.
In all the circumstances therefore, the applicant is entitled
to the
relief that he seeks. I make the following order:
Order
1. In terms of section 197 read with
197A of the Labour Relations Act, Comwezi Security Services is bound
by the Arbitration Award
under case number WE 15028-06;
2. A warrant of execution issued in
terms of such Award may be issued against Comwezi Security Services.
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant
:
In person
[1]
High Rustenburg Estate (Pty) Ltd v Nehawu obo Cornelius & Others
(2017) 38 ILJ 1758 (LAC) at para 19