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[2017] ZALCCT 68
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Loots v Izakaya Maatsuri Sushi and Japanese Tapas (C588/16) [2017] ZALCCT 68 (30 November 2017)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: C588/16
Not Reportable
In
the matter between:
DESMOND
LOOTS
Applicant
and
IZAKAYA
MAATSURI SUSHI & JAPANESE TAPAS
BAR
(PTY)
LTD
Respondent
Heard:
25 October 2017
Delivered:
30 November 2017
JUDGMENT
RABKIN-NAICKER,
J
[1]
This matter concerns two
points in limine
raised by the
respondent in respect of this court’s jurisdiction to hear the
applicant’s claim.
[2]
It is recorded in the pre-trial minute, dated 24 May 2017, that the
applicant “is abandoning his claim for pain and suffering”.
The relief sought in the statement of claim, taking this into
account, is framed as follows:
“
Ordering
the Respondent to pay the Applicant maximum compensation;
Ordering
the Respondent to pay the Applicant for the work done, marketing
functions
and management duties.”
[3]
It is the respondent’s case that the matter is
res judicata
in that the applicant already referred a dispute to the CCMA
where he sought inter alia compensation for unfair dismissal,
compensation
for unpaid management services and compensation for
marketing services. An arbitration award was issued on the 14 March
2016.
[4]
The outcome or the Award in which the issue to be decided is recorded
as being “to determine the existence of a dismissal
and whether
it was procedurally and substantively fair”, was as follows:
“
15.
In determining the remedy to the dispute I have had regard for the
following factors, namely that the
Applicant sought compensation for
his unfair dismissal, that the dismissal was both procedurally and
substantively unfair and that
the applicant has not found alternate
employment since the dismissal in determining compensation, I have
considered the applicant’s
length of service of one (1) year
and (4) four months and his hourly wage rate of R14.50
(fourteen rand and fifty cents),
I believe four (4) months
compensation to be fair and equitable in the circumstances.”
[5]
The applicant was awarded an amount of R7 534.20 by the
Arbitrator as compensation for his unfair dismissal. In this claim
he
pleaded as follows:
“
4.6
The Applicant had a verbal agreement with the Respondent that he can
do marketing for the restaurant
and he will get a 3% of the turnover
for that work.
4.7
Indeed the Applicant done a marketing duties and the Respondent
started to grow and even
got more clients. Attached hereto the
documents done marked annexure C.
4.8
The duties included the following:
4.8.1
Creating and distributing menu flyers;
4.8.2
Online campaigns with unpaid meetings with Zomato;
4.8.3
Printing campaigns such as Cape Argus Article;
4.8.4
Updating pricing on POS system year on year and general price
changes;
4.8.5
Assisting with contracts for employees;
4.8.6
Staff sourcing;
4.8.7
Training staff;
4.8.8
Communicating with stakeholders negotiating better card rates and
machines for the store;
4.8.9
Engage suppliers of table, chairs and certain product where
communication was vital;
4.8.10
Assisting with orders when asked.”
[6]
Although the applicant sought to deal with the above at the CCMA, as
it evident from his referral to it, the Commissioner dealt
only with
the unfair dismissal claim. The respondents in limine point of res
judicata cannot therefore be upheld.
[7]
In its second point in limine in terms of jurisdiction the respondent
submits that while section 77 (3) of the Basic Condition
of
Employment Act stipulated that the Labour Court has concurrent
jurisdiction to hear and determine any matter concerning a contract
of employment, the applicant is claiming general damages for pain and
suffering. The respondent does not appear to have had regard
to the
pre-trial minute which records that this prayer is not being pursued.
The following issues are listed in the pre-trial minute
for the Court
to decide:
Issues
to be determine by the court.
“
6.1
preliminary issues of res judicata and jurisdiction.
6.2
Whether the applicant is entitled for payment of the work that he has
done.
6.3
Merits to be determined by the court.”
[8]
The applicant has pleaded an oral agreement with the Respondent that
he would do marketing for the restaurant, over and above
his normal
duties, and that he would get 3% of the turnover of the business for
that work. He is seeking damages for the breach
of that agreement. In
determining whether this court has jurisdiction to hear the claim in
terms of section 77(3) if the BCEA,
I take cognisance of the matter
of
Rand Water v Stoop & another (2013) 34 ILJ 576 (LAC)
in
which the LAC held per Waglay AJP, (as he then was) concerning a
counter-claim for damages brought by an employer, as follows:
“
39.1
The word 'concurrent' in s 77(3) places the Labour Court in exactly
the same position as the High Court with the
same powers and
authority in relation to matters concerning a contract of employment.
39.2
The last part of s 77(3) provides the Labour Court with jurisdiction
irrespective of whether any basic condition
of employment constitutes
a term of the employment contract. This demonstrates that the Labour
Court has jurisdiction over any
claim as long as it involves a
contract of employment
39.3
The words 'concerning a contract of employment' mean about or in
connection with an employment contract.
The pleaded claim clearly
falls within this categorization.”
[9]
The issue is then whether the oral agreement referred to above was in
connection with or about an employment contract. I find
that the
claim for work performed in terms of the alleged oral agreement is in
connection with the applicant’s employment
relationship with
the respondent. I am however persuaded by the respondent’s
argument that there is a need for the applicant
to quantify the
damages he is claiming. In the result, and bearing in mind the need
for expeditious resolution of disputes, I make
the following order:
Order
1.
The points in limine are dismissed.
2.
The parties are to file a supplementary pre-trial minute setting out
the quantum of damages being claimed by the applicant
and the
respondent’s plea thereto.
____________________
H. Rabkin-Naicker
Judge
of the Labour Court
Appearances: Applicant in
person
Respondent: Barry Varkel
Consulting