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[2017] ZALCPE 21
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Gurendende and Another v Evalex Logistics (P185/12) [2017] ZALCPE 21 (11 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
CASE NO: P185/12
In
the matter between
ABEL
GURENDENDE
First
Applicant
STANFORD
MAROWA
Second Applicant
and
EVALEX
LOGISTICS
Respondent
Heard:
11 November 2015, and 22 June 2016,
Delivered:
10 November 2017
Summary:
In case of unfair dismissal for operational requirements of the
employer the onus to prove the existence of the dismissal
rests on
the employee. When the onus is not discharged the Labour Court
lacks jurisdiction to adjudicate the unfair dismissal
dispute.
JUDGMENT
Lallie,
J
[1]
The respondent conducted business in the sector of transporting
goods. He employed the applicants who are Zimbabwean Nationals
as
ultra-heavy motor vehicle long distance drivers on fixed term
contracts. The first applicant’s contract commenced on 1
April
2011 and was due to expire on 1 June 2013. The second applicant
joined the respondent on 7 January 2010 but he signed his
fixed term
contract in June of the same year. It was due to expire in June 2014.
The applicants submitted that in February 2012
they received texted
messages through their cellular telephones (text messages) from Mr
Matayire (Matayire), a director of the
respondent, in which he
dismissed them because his business was in financial difficulties.
Matayire denied dismissing the applicants
and submitted that they did
not have the necessary documents and their inability to produce them
on demand, particularly in government
departments and areas like the
harbour posed a problem to his business. He was sometimes required to
intervene for them to be given
access. The first applicant had no
valid work permit and the second had no valid Public Drivers Permit
(PDP).
[2]
As dismissal was in dispute the applicants had, in terms of section
192 of the Labour Relations Act,
[1]
to prove its existence. Both applicants submitted that their
dismissal and its reason was conveyed to them in text messages
through
their cellular telephones. Although the applicants had
promised to tender the messages as evidence, they were unable to do
so as
they had both lost their cellular telephones. The first
applicant insisted that he was dismissed and denied being given time
to
obtain a valid work permit. He submitted that at all material
times he had a valid work permit. He sought to rely on his work
permit
which was issued on 5 October 2013 and due to expire on 12
December 2014. He also attempted to rely on a receipt for a
temporary
residence permit which was issued on 5 November 2010. The
first applicant conceded under cross-examination that when he was
working
for the respondent he did not have a work permit. He also
conceded that the temporary residence receipt dated 5 November 2010,
clearly states that it is not a work, study, or a business permit.
[3]
The second applicant conceded that in February 2012 he did not have a
South African PDP but his Zimbabuan one which is valid
in the SADEC
Region. He did not tender it as evidence. He obtained a South African
PDP in 2012. Matayire insisted that he did not
dismiss the applicants
but gave them time off to obtain the necessary documents. They left
and never returned as they had obtained
more lucrative jobs.
[4]
It was argued on behalf of the applicants that based on the decision
in
Stellenbosch
Farmer’s Winery Group Ltd and another v Martell at Cie and
others
[2]
,
the applicant’s version should be preffered over the
respondent’s because it is more probable than the one presented
by Matayire which was riddled with contradictions. It was further
argued that the applicant’s failure to produce the promised
dismissal messages should not be used against them as people tend to
lose cellular telephones. Notwithstanding the contradictions
in the
respondent’s version, it is common cause that the first
applicant did not have a work permit in February 2012. It
is further
common cause that the second applicant did not have a South African
PDP in February 2012. Section 15 of the National
Road Act
[3]
the regulations of which were published in 2000, requires drivers
transporting goods to have a South African PDP. It is not in
dispute
that the documents were necessary for the respondent to keep the
applicants in its employ. The first applicant’s
allegation that
he had a work permit in 2012 turned out to be false. The second
applicant also conceded that he did not have a
South African PDP in
2012 and did not tender as evidence the one valid in the SADEC Region
he claimed to have had in 2012. When
the versions of the parties are
assessed against the test in
Stellenbosch
Farmers’ Winery Group
(supra), they support the conclusion that the respondent’s
version is more probable. All the common cause evidence supports
the
respondent’s version that there was a need to afford the
applicants an opportunity to obtain the necessary documents.
Although
the respondent’s version had contradictions and he failed to
recall certain events, his version is not far-fetched.
The
applicants’ allegation that they were dismissed was not proved.
I therefore conclude that the applicants failed to discharge
the onus
of proving their dismissal or that the respondent was responsible for
the termination of their employment relationship.
The Labour Court
therefore lacks the necessary jurisdiction to adjudicate their
dispute.
[5]
The respondent sought a costs order against the applicants on the
basis that it is the successful party. Success on its own
does not
entitle a party to costs. I have considered the submissions on behalf
of the both parties on the question of costs and
I am not convinced
that fairness, which is amongst the factors to be considered,
justifies the costs order. The applicants did
not act unreasonably in
approaching this Court for relief.
[6] In the premises, the
following order is made:
Order:
1.
The applicants’ claim is dismissed for lack of jurisdiction.
2.
No order is made as to costs.
Z Lallie
Judge of the Labour Court
of South Africa
Appearances
:
For
the Applicant: Mr Unwin of Chris Unwin Attorneys
For
the Respondent: Advocate Grobler
Instructed
by Kirchmanns Attorneys
[1]
66 of 1995 (the LRA)
[2]
2003 (1) SA 11 (SCA)
[3]
93 of 1996