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[2017] ZALCD 22
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South African Broadcasting Corporation SOC Ltd v Commission for Conciliation, Mediation and Arbitration and Others (D510/15) [2017] ZALCD 22 (31 October 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Reportable
CASE
NO: D510/15
In
the matter between:
SOUTH
AFRICAN BROADCASTING CORPORATION SOC LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
LESTER
SULLIVAN
N.O.
Second
Respondent
NASHENTHA
PADAYACHI
Third
Respondent
Head:
26 June 2017
Delivered:
31 October 2017
Summary:
Review application – Jurisdictional issue – whether third
respondent was engaged as an employee or independent
contractor –
principles applicable discussed and applied – third respondent
is an independent contractor who claims
the existence of employment
relationship because it is in her financial interest to do so –
review granted.
JUDGMENT
Cele
J
Introduction
[1] This is an
application in terms of section145 of the Labour Relations Act,
[1]
in which the Applicant seeks to review and set aside an arbitration
award issued by the Second Respondent
under the auspices of the First Respondent, in case number
GKNDB7029/14 dated 28 April 2015
.
The Second Respondent found that the Third Respondent was an employee
of the Applicant and not an independent contractor and ruled
that the
Applicant was to reinstate her into its employment on the same terms
and conditions that she was employed under prior
to her dismissal.
The Second Respondent awarded the Third Respondent back-pay in an
amount of R496 348-36. The third respondent
opposed the review
application.
Factual Background
[2] The Third Respondent
was engaged as a Radio Sport Presenter. She was required to render
services from Monday–Friday only,
between 15h00 -18h00 during
the afternoon drive show known as Desi Drive and broadcast on Lotus
FM, one of Applicant’s radio
stations. She was required to
gather and research sport news, to package and edit same and to read
it on air every 30 minutes during
her three-hour show. At the times
material to this matter she had 12 years of experience with the
Applicant during which she served
various fixed term contracts that
were renewed at the end of each. During her last experience with the
Applicant she was serving
a fixed term contract of three years with
effect from 1 August 2013 to 31 July 2016. The contract is described
as “Contract
for Services (Locatio Conductio Operis)”.
The Third Respondent is described as the Independent Contractor”,
throw ought
the contract. For the period April 2013 to March 2014 she
earned R510 330.00, based on a contractual fee of R2090 per call for
the sport presentation. Clause 4 of Annexure A of the contract
contains obligations of the Independent Contractor. I
nter alia
,
it states that:-
“
4.1
The SABC shall pay the SPORT INDEPENDENT CONTRACTOR a daily per diem
for services rendered away from
home base as per the Policy of
Independent Contractors.
4.2
The SABC shall pay the SPORT INDEPENDENT CONTRACTOR 100% of the
contract fee for rehearsal
days on condition that the call sheet
should be attached to the rehearsal day’s claim.
4.3
The Sport Independent Contractor shall submit to the SABC a valid and
acceptable tax invoice
within 48 hours (2 working days) of
contribution.
4.4
The SPORT INDEPENDENT CONTRACTOR shall complete the SABC with each
contribution. If the
register is not signed, a letter must be written
and signed off by the Producer confirming that the independent
contractor was
on duty.
4.5
In the cases where the SABC Sport cancels production within 24 hours
ahead of the broadcast
no cancellation fee will be paid to the
Independent contractor that was booked. The SABC will confirm
cancellation ahead of this
timeframe.
4.6
The SPORT INDEPENDENT CONTRACTOR shall comply with SABC SPORT’S
directives and guidelines with
regards to dress code for SPORT
INDEPENDENT CONTRACTORS.
4.7
The INDEPENDENT CONTRACTOR shall familiarise himself/herself with the
PRESENTER STYLE GUIDE
as it pertains to the time slot that the
INDEPENDENT CONTRACTOR is presenting.
4.8
The INDEPENDENT CONTRACTOR shall monitor competitor stations and
familiarise himself/herself
with the performance of these stations.
4.9
The INDEPENDENT CONTRACTOR is expected to perform according to
accepted broadcast industry
standards and as such does not fall under
the day to day supervision of the PROGRAMME MANAGER or his/her
nominee.
4.10
The INDEPENDENT CONTRACTOR agrees to be bound by standards or
authorities governing the broadcasting Industry
in SOUTH AFRICA,
including the Broadcasting Complaint Commission of South Africa’s
Code of Conduct for Broadcasters, and
the Advertising Standards
Authority. The INDEPENDENT CONTRACTOR recognises that any fines
imposed by the above bodies resulting
from unsanctioned broadcast by
the INDEPENDENT CONTRACTOR of material that contravenes such
standards or code of conduct regulations
shall be payable by the
INDEPENDENT CONTRACTOR in accordance with acceptable processes
stipulated in the contract.
4.11
The INDEPENDENT CONTRACTOR shall familiarise himself/herself with the
target market of the STATION, ad ensure
that all content used in the
PROGRAMME is in accordance with the requirements of the STATION for
the desired target market, i e
– if any feature has to be
introduced it should be approved by the STATION MANAGEMENT.
……
4.14
[3] The Third Respondent did not
participate in any of the Applicant’s benefits such as housing,
pension, medical aid or bonus
scheme. Employees automatically qualify
for these benefits. Applicant’s Personnel Regulations as well
as the Disciplinary
Procedure and Code of Conduct were not applicable
to the Third Respondent. She never claimed that these benefits should
be extended
to her because she regarded herself as being an employee.
[4] The Third Respondent was not
expected to work the eight hours per day as her office hours like
other employees. She had to report
for duty at least 60 minutes
before the start time of her duty and to be available for at least 30
minutes after her shift. She
also did not participate in a paid leave
system. The no work, no pay system applied to her. The same principle
applied in respect
of sick leave. She never approached anyone to
grant her maternity leave when she was pregnant. She was also not
paid during the
period of her pregnancy. That distinguished her from
the situation of employees who automatically qualified for this type
of leave
and payment during the said leave in terms of Applicant’s
rules and regulations.
[5] She was provided with a telephone
pin code, her Lotus FM email address and work station from which she
could do her job. The
Third Respondent was not paid through the
normal QPAC system applicable to employees, but through the
independent contractor’s
system and in terms of an invoice
being submitted. The program manager signed the invoice submitted by
the Third Respondent to
confirm that the Third Respondent had
actually rendered the services indicated in the invoice, in order for
the Department of Sport
to effect payment accordingly. The tax
structure applicable to the Third Respondent was also different from
the tax structure applicable
to employees. The Third Respondent paid
a 25% flat rate tax on the contract fee whereas employees are taxed
in terms of a fixed
tax sliding scale.
[6] There is a dispute between the
parties whether the Third Respondent was obliged to attend staff or
employee meetings. According
to the Applicant, the Third Respondent
was not required to attend any staff or employee meetings. The Monday
meeting that the Third
Respondent was required to attend, was a
meeting scheduled by the Sport Division with independent contractors
and program managers
of the Radio Stations on a national basis, in
order to inform them on the events to be covered during the coming
week as well as
other instructions specifically related to Sport
Division issues. Other meetings that the Third Respondent was
required to attend
and scheduled by the Radio management were
meetings relating to RAMS, audience interaction, radio strategy and
goals and what was
expected of the independent contractor as far as
enhancing the image and flavor of the station. These were meetings
scheduled as
part of the contractual obligations of the Third
Respondent. According to the Third Respondent she was required to
attend employee
meetings and station strategy sessions, other than
sports meetings. Those meetings were scheduled on an ad hoc basis by
the Station
Manager and were compulsory to attend.
[7] She claimed rebates from South
African Revenue Services (SARS) and the IRP5 form issued by the
Applicant also indicated that
she was an independent contractor. She
portrayed herself to SARS as an independent contractor and also
received a refund from SARS.
The Third Respondent never contested
this fact during her tenure with the Respondent since 2002. According
to her, she was simply
provided with an IRP5 form issued by the
Applicant to be sent to SARS. She had asked various questions about
the issue and was
shown the procedure to be followed. It was her
first ever employment and so she followed the advice given to her by
the Applicant
when dealing with SARS as she did not know any other
different procedure.
[8] The Third Respondent conceded that
there was a clear difference between the Remittance Advice that she
received on a monthly
basis as opposed to the salary advice being
provided to employees. In the case of the Remittance Advice provided
to independent
contractors, only the monthly income and the
applicable 25% tax deducted were reflected, as opposed to the salary
advice applicable
to employees were income, benefits and all
deductions were reflected, which was substantially different from the
information reflected
in the Remittance Advice. The Third Respondent
also never contested this fact during her tenure with the Applicant
since 2002.
She said that she had not seen the remittance advice for
an employee before the arbitration hearing and was shown the
difference
at that hearing. As such, she would not have had any need
to contest the issue during her employment.
[9] According to the Applicant and in
relation to outside broadcast, all continuity presenters who were
independent contractors,
including the Third Respondent, were obliged
to fit in with the station’s program and activities, as long as
the sport broadcast
took place. The Applicant said that it was a
national and worldwide trend that when such continuity presenters
represented the
Station at a special event, they participated in the
event activities and also wore brand clothing. The Third Respondent
said that
she felt obliged to accompany the Station on these outside
broadcast events and therefore, considered the request to be part of
the supervision and control exercised by the station.
[10] On 28 April 2014 the Applicant
reported at the station at 15h12 for the Desai Drive program
scheduled for three hours from
15h00 to 18h00. At about 16h13 she
left the studio to only return at 17h54. In her absence no sport news
stories were broadcast.
The Applicant took this incident seriously as
it felt that its name was brought into disrepute. The contract which
the Applicant
and the Third Respondent had, was then terminated.
After Third Respondent’s contract was terminated, Ms Riemer
issued her
a reference letter which clearly indicates that the Third
Respondent was engaged on a “freelance basis”
(independent
contractor). The Third Respondent never challenged the
fact that her status was referred to as an independent contractor in
the
letter. Having received the reference letter, Third Respondent
prepared her Curriculum Vitae. On the first page of the Curriculum
Vitae, the Third Respondent used an extract from the reference letter
drafted by Ms Riemer and pasted same next to her picture.
She said
that the use of a reference letter from the Applicant was no
indication that she was an independent contractor. She merely
used a
portion of the reference letter in an attempt to obtain future
employment, without accepting that she was an independent
contractor.
[11] According to the Applicant the
Third Respondent was permitted to do work for other external
organisations or to have interest
in other businesses and the
Applicant said that Third Respondent conceded that she at least once
did do outside work without permission.
According to the Third
Respondent it was the Applicant that once provided a voice-over in an
advertisement. She said that she once
attempted to work for an
outside organisation, namely SuperSport but was prevented from doing
so by the Applicant. After the termination
of the contract between
the parties, the Third Respondent referred an unfair dismissal
dispute to the First Respondent for conciliation.
When the dispute
could not be resolved, she referred it to arbitration and the Second
Respondent was appointed to arbitrate it.
The Applicant took the
position that the First Respondent lacked jurisdiction to be seized
with such a dispute, contending that
the Third Respondent was an
independent contractor and not its employee. The Third Respondent
bore the onus to prove that she was
an employee, was dismissed by the
Applicant and therefore that an unfair dismissal dispute was properly
before the First Respondent.
Chief findings of the Second
Respondent
[12] The Second Respondent’s
findings which the Applicant is attacking as the foundation for the
review application are the
following:
Ø
Mr Pillay was an
exceedingly poor witness and that his evidence was to be rejected
where it contradicted that of the Third Respondent;
did not recall
saying or doing what the Third Respondent claimed he had done; and
that Mr Pillay’s evidence was illogical
in many respects;
Ø
Ms Riemer had
contradicted Mr Pillay when she testified that the Third Respondent
was not required to interact with the presenter
when she presented
her sports report whereas Mr Pillay had testified that she was
allowed to interact and did interact with the
presenter; and
therefore, such interaction weighs heavily against the Applicant’s
contention that the Third Respondent was
an independent contractor;
Ø
the second major issue
in the hearing was whether the Third Respondent was managed by Mr
Pillay or Ms Riemer;
Ø
the Third Respondent did
not know who Ms Riemer was and never received any communication from
her;
Ø
the Third Respondent was
subordinate to the will of the Applicant as she was obliged to follow
the commands of Mr Pillay;
Ø
the Third Respondent did
not have skills when she was first contracted by the Applicant;
Ø
the Third Respondent was
compelled by the Applicant to render returns to SARS;
Ø
the rights of the Third
Respondent would have been disregarded had she considered the
Applicant’s argument that merits needed
to be decided
separately; and
Ø
an order for
retrospective payment was made by the Second Respondent allegedly
when no evidence was placed before her as to what
the Third
Respondent’s earnings were.
Grounds for review
[13] The Applicant submitted that the
award made by the Second Respondent was reviewable on the following
grounds:-
13.1
the Second Respondent’s findings are not supported by evidence
presented during the arbitration hearing:
13.2
the Second Respondent failed to make credibility findings in
circumstances calling for such finding to be
made in favour of the
Applicant;
13.3
the Second Respondent showed lack of understanding of legal
principles in relation to whether or not a person
is an employee;
13.4
the Second Respondent misunderstood the legal issue presented by the
parties;
13.5 the Second
Respondent was impartial, alternatively, committed misconduct during
the proceedings.
[14] Further submissions were made by
the Applicant in support of the outlined grounds for review, inter
alia, that:-
14.1 In
relation to a finding that Mr Pillay was an exceedingly poor witness
and that his evidence was to
be rejected where it contradicted that
of the Third Respondent, the Second Respondent only gave one example
that did not support
his conclusion. The Applicant’s submission
was that these findings were not justified by the actual evidence
presented during
the arbitration hearing. Further, that there was
nothing illogical in Mr Pillay’s evidence as she testified that
since 2002
independent contractors report to her, at SABC Sport,
through email communications.
14.2 On
whether Ms Riemer had contradicted Mr Pillay when she testified that
the Third Respondent was not
required to interact with the presenter
when she presented her sports report, the submission was that an
assertion that the two
witnesses contradicted each other was
incorrect. The Second Respondent’s finding that such
interaction weighs heavily against
the Applicant’s contention
that the Third Respondent was an independent contractor was said to
be simply without foundation
and evidenced a misunderstanding of the
applicable legal principles. It was submitted that both Mr Pillay and
Ms Riemer testified
that the Third Respondent was an independent
contractor. A determination on whether the Third Respondent was an
employee or an
independent contractor could not be made by reference
to her interaction with a presenter.
14.3 On the
finding that the second major issue in the hearing was whether the
Third Respondent was managed
by Mr Pillay or Ms Riemer it was the
Applicant’s submission that this approach proved that the
Second Respondent did not
understand the law in relation to the
meaning of an employee. The question was whether she was under the
supervision and control
of the Applicant. The evidence of Mr Pillay
and Ms Riemer was that she was not under their supervision as she was
not an employee
but an independent contractor. As regards the finding
that the Third Respondent was subordinate to the will of the
Applicant as
she was obliged to follow the commands of Mr Pillay, the
Applicant said that this finding was not supported by evidence as Mr
Pillay
had testified that he did not give the Third Respondent
instructions on how to do her work;
14.4 While the
Second Respondent stated that the Third Respondent did not know who
Ms Riemer was and never
received any communication from her, it was a
finding which contradicted the Second Respondent’s own earlier
finding that
Pillay forwarded communication from Ms Riemer to the
Third Respondent every week.
14.5 The
Second Respondent found that the Third Respondent did not have skills
when she was first contracted
by the Applicant without elaborating on
the relevance of such skills in relation to the determination of her
status as an independent
contractor. The Applicant’s submission
was that the Third Respondent was an independent contractor and the
basis of an independent
contract between the parties was in relation
to a skill that she possessed for sport presentation;
14.6
For the Second Respondent’s finding that the Third Respondent
was compelled by the Applicant to render
returns to SARS the
submission was that such a finding was absurd as there was no
evidence to support such compulsion. It was contended
that the Third
Respondent rendered returns to SARS as an independent contractor and
kept the tax benefits.
14.7
The Second Respondent found that the rights of the Third Respondent
would have been disregarded had he considered
the Applicant’s
argument that merits needed to be decided separately. The Second
Respondent misunderstood the legal issue
which was that jurisdiction
had to be determined before evidence could be led on the merits.
14.8
The Second Respondent made an order for retrospective payment when no
evidence was placed before him as to
what the Third Respondent’s
earnings were. It is the Applicant’s submission that such
finding amounted to a reviewable
irregularity on the part of the
Second Respondent.
Submissions by the
Third Respondent
[15] The Third Respondent
opposed the review application issued in her favour and has made a
number of submissions. She said that
it was evident that during the
course of the proceedings, a credibility finding was required to be
made by the Arbitrator in circumstances
where on a number of
occasions there were either mutually destructive versions, or
alternatively, one version which the Third Respondent
had presented
and the opposite version of the Applicant party’s witnesses
being that they could not recall this issue. The
submission was that
it is trite in our law that the Arbitrator conducting the process,
and who has actual sight of the witnesses
providing evidence and
their demeanour, is the party best placed to make any credibility
findings. This Court should therefore
be reluctant to enter the fray
and impose upon the parties its own credibility findings in
circumstances where it did not have
the opportunity to consider the
demeanour of the witnesses themselves during the course of the
proceedings and only the written
transcript which has been provided.
This approach was said to carry extra weight in this matter given the
findings by the
Arbitrator that the main witness for the Applicant
party, Pillay, was found to be:
“…
a
n
exceedingly poor witness. He was evasive, contradictory and generally
made a poor impression. In his evidence in chief, that is
while being
questioned by the Respondent’s representative, he stated he did
not do what was suggested by the Applicant.
However, when
cross-examined by the Applicant and reminded of specific incidents
and specific statements made by various parties,
his response was
that he did not recall saying or doing what the Applicant claimed he
had done.”
[2]
[16] She contended that a
large portion of the credibility finding was that the Applicant’s
main witness was evasive and generally
made a poor impression. It was
submitted that the Court was not in a position to contradict these
findings by the Arbitrator and
as such, should be loath to enter an
arena where no real evidence has been provided that the Arbitrator
has made an unreasonable
finding in this regard. An occasional
comment by the Applicant party that the Arbitrator made illogical
findings here or there,
could not carry any weight with regards to
the issue of credibility and did not support its ground of review
that any credibility
finding should be made in favour of the
Applicant. In fact, no real justification had actually been
provided in any of the
papers presented that the Arbitrator’s
decision was wrong with regards to credibility, even in respect of
the specific instances
cited.
[17] In the
circumstances, it was submitted that the Arbitrator had made a
reasonable finding with regards to the credibility of
the witnesses,
and same had not been adequately challenged by the Applicant party.
Accordingly, any references to where evidence
should be accepted from
the Third Respondent should again be accepted in these circumstances.
On dealing with the first issue raised
by the Applicant that of the
contradiction between Ms Riemer and Mr Pillay’s evidence and
furthermore the credibility finding
by the Arbitrator against Pillay,
the Applicant submitted that the finding by the Arbitrator was
illogical, however the Applicant
failed to consider the specific
paragraph where the Arbitrator has dealt with this issue.
[18] The Arbitrator
stated that there were many events were Mr Pillay had changed his
version from that of denying what had taken
place to when, under
cross-examination, when reminded of specific incidents and specific
statements, to a response that he could
not recall saying or doing
what the Third Respondent had claimed. It was on this basis that the
Arbitrator had found that Mr Pillay’s
evidence was lacking in
credibility. The Arbitrator then when going on to discuss examples of
the illogical evidence, specifically
then set out that those issues
were in addition to those previously mentioned. In a correct reading
of paragraph 31 of the Arbitration
Award, the Arbitrator specifically
stated: “
Pillay’s evidence was
also
illogical …”
This gives one the indication that on
top of what the Arbitrator had already found were issues with Mr
Pillay’s evidence,
there were examples. The Applicant attempts
to suggest that the finding by the Arbitrator that Ms Riemer and Mr
Pillay contradicted
each other was incorrect, however sets out no
details regarding this issue. On the issue of whether it was an
illogical finding
by the Arbitrator when dealing with how Mr Pillay
had communicated with the Third Respondent, Ms Riemer specifically in
her evidence
set out the fact that she would send communications at
least 10 times a week to the Station Manager regarding various issues
and
that the Station Manager would then deal with the people
themselves. This much is recorded in the transcript to the
arbitration
proceedings.
[19] Further to the
above, the Arbitrator then dealt with whether or not the two
witnesses contradicted each other with regards
to the interaction
with the presenters during the course of the shows. In this regard,
she said that it was common cause that she
was required by Mr Pillay
to interact with the host of the show during the course of the
program. However, Ms Riemer’s evidence
was that she was unaware
that the Third Respondent was a co-host on a compulsory basis and
that she would have liked this information
run past her so that she
could understand the role and what she was going to do so that she
could either agree or not to it. This
she said was so clearly
contradictory evidence that one could not understand why the
Applicant took issue with it.
[20] Further, it was
submitted that why such an issue would weigh heavily on whether the
Third Respondent was an independent contractor,
is that, it was clear
evidence that Mr Pillay was supervising and controlling the
activities of the Third Respondent outside of
the scope of what was
alleged to be the independent contracting agreement. The individual
whom the Applicant would have one believe
was the Third Respondent’s
superior, in fact said she had no knowledge of this taking place and
would have appreciated it
if it had been run past her. This is
evidence of the control and supervision which Mr Pillay had over the
Third Respondent and
was correctly cited by the Arbitrator as an
important consideration. The submission was that this was by no
means any indication
that the Second Respondent did not understand
the principles applicable to the independent contracting situation
and in fact shows
quite the contrary.
[21] The second major
issue which the Applicant then raised was the fact that the
Arbitrator dealt with whether the Third Respondent
was managed by Ms
Pillay or Ms Riemer. The Applicant then suggested that this showed a
clear misunderstanding by the Arbitrator
as he was supposed to
consider the issue of supervision and control. It was submitted that
this issue was merely semantics and
wordplay and quite clearly what
the Arbitrator was considering was whether the Third Respondent was
being managed by the individuals
concerned which would by implication
require supervision and control. The fact that certain individuals
had stated that the Third
Respondent was an independent contractor
and was not under their supervision or control was not borne out by
the facts of the matter
as have been correctly set out by the
Arbitrator.
[22] The submission made
was that the Applicant averred that the Arbitrator had ignored Ms
Riemer’s evidence with regards
to weekly teleconferences
however, in so doing, the Arbitrator had specifically found that he
would prefer the evidence of the
Third Respondent which said that the
Third Respondent was not generally the individual involved in these
teleconferences as it
was mainly the morning sports presenter that
would be involved in same. The Arbitrator elected to prefer the
evidence of
the Third Respondent over that of the Applicant’s
witnesses on a number of issues. Furthermore, the finding by the
Arbitrator
in no way contradicted any issue with regards to the
forwarding of communication. The submission was that the Arbitrator
was well
aware of the process which was being followed and at no
stage did Ms Riemer confirm that all Mr Pillay was required to do was
to
forward the emails on. In fact, she confirmed that he was to
deal with the people concerned after having received the emails.
[23] In respect of
whether the Third Respondent did not have any skills when joining the
Applicant’s organisation, the Third
Respondent referred to the
case of
SABC
v CCMA and Others
[3]
,
where the court stated the following:
“
The Applicant conducts business
as a public broadcaster. It has a large number of its own
employees, but also engages the
services of a number of individual
persons as independent service providers. All these persons
offer the kind of services
that entails a particular skill attaching
to such person, especially when it comes to technical personnel.”
[4]
[24] With regards to
independent contractors a certain skill is sought after and
obtained. It is not the employing of an individual
from “off
the street” to come and perform the function of any normal
employee. In these circumstances, it was
submitted that the
Third Respondent had no skills which would lead one to employ her as
an independent contractor at the time.
She was taught
everything that she knew at the Applicant’s company and in
essence was employed and trained up as an employee.
The arbitrator
was said to be quite correct in dealing with the issue of her lack of
skills when entering the organisation. It
was averred that the
Arbitrator correctly applied his mind to the evidence which has been
presented on this aspect and quite correctly
focused on this issue in
his determination.
[25] In respect of tax
returns to SARS, the Third Respondent was said to have been open
about the fact that this was her first real
employment and simply did
as she was told by the Applicant. She advised that she knew no
better and was simply following
their recommendations as to what
needed to be done. In the circumstances, little should be taken from
this submission by the Applicant.
The Applicant then takes issue with
regards to whether the Arbitrator knew what the Third Respondent was
earning and says that
this therefore is an indication of a reviewable
irregularity because the Arbitrator has set out a figure. However,
the Applicant
was said to have neglected to take into consideration
that evidence was presented to indicate what the Third Respondent
earned.
In this regard, the figure which was eventually utilised by
the Arbitrator in his Arbitration Award, being R510,330.00 per annum,
was specifically presented into evidence by the Applicant’s own
representative. In the circumstances, the Arbitrator had
specific
evidence as to the earnings of the Third Respondent and has therefore
made a finding accordingly.
[26] Finally, the
Applicant said that the First Respondent had clearly committed
serious misconduct and therefore the Third Respondent
ought not to
have been reinstated. The submission was that the Arbitrator was not
called upon to determine this issue given the
agreement which had
been previously reached with the Applicant’s representative and
which is contained in the transcript.
In the circumstances, the
Arbitrator had no need to consider any allegations of misconduct
against the Third Respondent and therefore
has not committed any
reviewable irregularity by reinstating the Third Respondent to her
position.
Analysis.
[27] I am in agreement
with a submission by Mr Maserumule for the Applicant that it is now
trite that where an award relates to
the jurisdiction of the CCMA to
arbitrate a dispute, the approach in
Sidumo
and
Another v Rustenburg Platinum Mines Ltd and Others
[5]
does not apply:
[6]
“
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise
…. ’ (emphasis added)
[28] This approach is
indeed consistent with the decision in
Sanlam
Life Insurance Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[7]
where it was held as
follows:
“
It
was, therefore, incumbent upon the Labour Court to deal with the
issue whether or not there had been an employment relationship
between the appellant and the third respondent and, therefore,
whether the CCMA had the requisite jurisdiction to deal with the
dispute… The Labour Court was called upon to decide de novo
whether there was an employer-employee relationship between
the
parties. It was not called upon to decide whether the commissioner's
findings were justifiable or rational.”
[8]
[29] The same approach
will be adopted in these proceedings, namely to
decide
de
novo
whether there was an employer-employee relationship between the
parties, without deciding whether the commissioner's findings were
justifiable or rational. Rather whether a correct approach to
determining the jurisdictional issue was followed by the Arbitrator
in this matter.
[30]
According to the closing submissions of the Applicant’s
representative at arbitration the Third Respondent earned about
R510 330.00 during the period April 2013 to March 2014. This
equates to an annual earnings at the material time. The arbitrator
correctly accepted that submission as there was no evidence to
negate. These earnings put the Third Respondent beyond the
applicability
of an employee as defined in section 200A of the LRA.
The
approach to be adopted in assessing whether or not a person is an
employee in circumstances where s 200A of the LRA does not
apply was
summarised as follows in
State
Information Technology Agency v CCMA & Others
[9]
:
“
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”
[31] Yet another guidance
on this issue comes from the case of
SA
Broadcasting
Corporation
v Mckenzie
[10]
,
relied on by Mr Kirby-Hirst for the Third Respondent where the court
said:
“
The employee is subordinate to
the will of the employer. He is obliged to obey the lawful commands,
orders or instructions of the
employer who has the right of
supervising and controlling him by prescribing to him what work he
has to do as well as the manner
in which it has to be done. The
independent contractor, however, is notionally on a footing of
equality with the employer.
He is bound to produce in terms of
his contract of work, not by the orders of the employer. He is not
under the supervision or
control of the employer. Nor is he under any
obligation to obey any orders of the employer in regard to the manner
in which the
work is to be performed. The independent contractor is
his own master.
”
[32] In conducting this
enquiry it is imperative that the Court must give due weight to the
contract concluded by the parties, and
to consider the realities of
the relationship between the parties, in so far as they are not those
reflected in the written contract.
[11]
It stands as a well-known fact that there are standards or
authorities governing the broadcasting Industry in South Africa.
These
include the Broadcasting Complaints Commission of South Africa
and the Advertising Standards Authority. The Broadcasting Complaints
Commission has a Code of Conduct for Broadcasters. The broadcasting
industry is in the business of disseminating information to
millions
of listeners within a very shop space of time. The room for
correcting error when a broadcaster is already on air is almost
non-existent. It is thus a highly sensitive industry. It must follow
from the aforesaid that some measure of control and supervision
to
those whose business it is to disseminate such information is
inevitable. Put differently, the control and supervision
of
information in this industry is inherent in the business of the
broadcasting world. Noticeable, the supervision in the broadcasting
industry pertains more to the control of information than to the
movement of the person doing the job. The determination of whether
a
person is the subject of an employer’s right to supervision and
control and therefore an employee is made more complex
by this
inevitable need for control in this industry.
[33] The broadcasting
industry is highly competitive. The contract has a provision to the
effect that the one person it engages
shall monitor competitor
stations and familiarise him/herself with the performance of these
stations while expected to perform
according to accepted broadcasting
industry standards.
[12]
While
a broadcaster may include these provisions in a contract for service
or services, such standards belong to the industry as
a whole. The
Applicant and SuperSport were in competition in the broadcast of
sports. If she rendered services for SuperSport while
doing the same
for the Applicant there could be a conflict of interest. When she
considered rendering services for SuperSport she
was in reality
confronted with a choice between staying with the Applicant and going
to SuperSport. She chose to stay with the
Applicant.
[34] The contract
provides that the Third Respondent would not fall under the day to
day supervision of the Program Manager or his/her
nominee.
[13]
This is at the heart of the Arbitrator’s finding that there was
a contradiction in in evidence of Ms Riemer and that of Mr
Pillay. Ms
Riemer’s evidence spoke to what the contract said. Mr Pillay
was confronted by his regular dealings with the Third
Respondent in
the working field. The practice of co-hosting came more as an
exception that a general occurrence. It was not the
evidence of the
Third Respondent that she co-hosted on a continuous basis. In the
type of industry one can understand the Third
Respondent coming on
air while the host of the previous program is on or when she is about
to finish her program and the next host
comes in. This could
conceptually involve the introduction of one host by the other. As an
exception, the Third Respondent might
have to continue on air at the
end of her program where the next host is sudden unavailable. I am
referring to a similar scenario
as on 28 April 2014 at 16h13 when she
left the station. In the broadcasting industry there must always be a
host on air, keeping
the station running, even if just playing music.
A request to step in in such exceptional circumstances would not
amount to the
control and supervision we are concerned with.
[35] The Applicant left
the contents used in the program to the discretion of the Third
Respondent so long as its feature fell within
the target market of
the station agreed upon. In this regard it remained beyond dispute
that the Third Respondent had skills in
improving audience
listenership figures. She rendered a particular result. This is a
specialised field where only her could produce
a particular kind of
result distinct from another host. There never was any evidence of
how and for how long such skills could
be acquired. Listening with
keen interest to a radio program such as a sports program while at
home over a protracted period could
conceptually equip an interested
person with some skills.
[36] The Third Respondent
was required to gather and research sport news, to package and edit
same and to read it on air every 30
minutes during her three-hour
show. This was her co-function. It does not appear that there was any
much interference by anyone
on how she packaged, edited and read her
sports news. Any subsidiary functions she might have rendered could
therefore not the
basis for determining her status.
[37] She was required, in
terms of the contract to attend rams presentations, and/or other
sport or station meetings with the Portfolio
Research Manager or
Sport/Station/Program Management to discuss the performance of the
program.
[14]
Clearly this
meeting was intended to review the particular result she had
rendered.
The
Monday meeting that the Third Respondent was required to attend, was
a meeting scheduled by the Sport Division with The Third
Respondent
and Program Managers of the Radio Stations in order to inform her of
the events to be covered during the coming
week as well as other
instructions specifically related to Sport Division issues. This was
not a general meeting with all staff
members but was attended by
those who rendered services on sports to the Applicant.
[38] It remained common
cause that t
he
Third Respondent did not participate in any of the Applicant’s
benefits such as housing, pension, medical aid or bonus
scheme.
Employees automatically qualify for these benefits. Applicant’s
Personnel Regulations as well as the Disciplinary
Procedure and Code
of Conduct were not applicable to her. She also did not participate
in a paid leave system. The no-work-no-pay
system applied to her. The
same principle applied in respect of sick leave. She never approached
anyone to grant her maternity
leave when she was pregnant. She was
also not paid during the period of her pregnancy. These
considerations distinguished her from
the situation of employees who
automatically qualified for those benefits. She clearly did not form
an integral part of the organisation
of the Applicant.
[39] In general the
service rendered by the Third Respondent to the Applicant was limited
to about 4.5 hours per day. The Third
Respondent was free to utilize
the rest of her time as she might want to, so long as the issue of
conflict of interest never arose.
The time 08h00 to 13h00 daily was
always available to the Third Respondent to use as she saw fit. This
is a period of 5 hours which
is longer than the time she gave to the
Applicant. If she wanted to, she therefore could have been
financially dependent on another
service benefactor while rendering
her services to the Applicant. The extent to which she was then
economically dependent on the
Applicant was much less than the
regular 8 hours per day.
[40]
In this matter I find myself in agreement with the finding made in
the case of
SABC
v CCMA & Others
[15]
where this Court said:
“
I
must
confess my concerns about what seems to be a growing trend of persons
who had entered into independent service agreements with
a third
party contractor, but then claim the existence of an employment
relationship, purely because it is considered to be opportune
or in
their financial interest to do so. This would often be the case
where the relationship comes to an end, and the individual
service
provider then claims dismissal so as to extract relief from the other
party flowing from a claim for unfair dismissal.
Or, as is the
case
in
casu
,
the independent service provider claims employment so as to procure
employment benefits the employees of the third party contractor
would
be entitled to. These situations are often more a case of
opportunism, rather than a genuine attempt to establish the true
nature of a relationship where that is unclear.”
[16]
[41]
As I
give
due weight to the contract concluded by the parties and as I consider
the realities of the relationship between the parties,
in so far as
they are not those reflected in the written contract, I find that the
realities of the relationship between the parties
were not materially
disproportionate to the terms they agreed on. This is also not a case
in which the parties deliberately entered
into the contract intending
to cover up the true nature of their relationship so as to avert any
applicable legal bar that prohibited
the employer and employee
relationship between them as in
Denel
v Gerber
.
[17]
In my consideration, the Third Respondent failed at arbitration to
prove that she was an employee and not an independent contractor.
Order
[42] Accordingly the
following order shall issue:
1.
The
arbitration award issued by the Second Respondent
under the auspices of the First Respondent, in case number
GKNDB7029/14 dated 28 April 2015 is reviewed and set aside.
2.
It
is found that the First Respondent had no jurisdiction to arbitrate
this matter as the Third respondent was not an employee of
the
Applicant.
3.
No
costs order is made.
_________
Cele J
Judge
of the Labour Court of South Africa.
APPEARANCES:
1.
FOR
THE APPLICANT:
Mr P Maserumule of Maserumule Attorneys.
2.
FOR
THE THIRD RESPONDENT:
Mr G Kirby-Hirst of MacGregor Erasmus Attorneys.
[1]
Act Number 66 of
1995 hereafter referred to as the LRA.
[2]
Paragraph 30 of
the award.
[3]
[2017] ZALCJHB76 (8 March 2017).
[4]
At para 6.
[5]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097 (CC.
[6]
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(
2008)
29 ILJ 964 (LAC) at para 101.
[7]
(2009)
30 ILJ 2903 (LAC) .
[8]
At para 17.
[9]
(
2008)
29 ILJ 2234 (LAC) at para 12.
[10]
(1999) 20 ILJ 585 (LAC) at paragraph
9.
[11]
Denel
(Pty) Ltd v Gerber [2005] 26 ILJ 1256(LAC) at para 19
[12]
See clauses 4.8
and 4.9.
[13]
See clause 4.9.
[14]
See clause 4.14.
[15]
[
2017]
ZALCJHB 76 (8 March 2017)
[16]
At para 32.
[17]
[2005] 26 ILJ 1256(LAC)