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[2018] ZALCJHB 351
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Antonio v Commission for Conciliation, Mediation and Arbitration and Others (JR1110/15) [2018] ZALCJHB 351 (30 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1110/15
In
the matter between:
JOAQUIM
DOMINGOS
ANTONIO Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
ZAKHELE MHLAMBO Second
Respondent
YOKOGAWA
SOUTH AFRICA (PTY) Third
Respondent
Date
heard: 8 August 2018
Delivered:
30 October 2018
JUDGMENT
RABKIN-NAICKER,
J:
[1]
This is an opposed application
to review a jurisdictional ruling under case number GATW3489-11. The
second respondent found that
the Commission for Conciliation,
Mediation and Arbitration (CCMA) did not have jurisdiction to hear
the dispute. Unfortunately
this Court had remitted the matter back to
the CCMA after it had dealt with a jurisdictional review of the same
dispute under case
number JR1406/11, rather than substitute its own
decision which would have been the proper course.
[1]
The record before me contains evidence from both arbitration
proceedings. It is trite that I must determine whether the Award was
correct, rather than reasonable, and in so doing, I take all the
documents and pleadings filed and the record in this matter into
account.
[2]
The applicant entered into an
employment relationship with Yokogawa Netherland BV on 17 May 2010.
He was appointed as Business Development
Manager with his main duty
to assume full responsibility for the development of the Angola
company business. Clause 1.3 of the
contract reads: “
You
will be employed at the Luanda office and will report to the Managing
Director of Yokogawa South Africa (Pty) Limited
.”
[3]
Clause 2 of the contract dealt
with the duration of employment as follows:
“
2.1
This contract is effective from 17 May 2010 until 31 January 2011, by
which time you are expected to have fully relocated to
Luanda with
your family. At such time, the standard employment contract will be
issued
2.2
Until such time as you have relocated, you will be expected to work
the following:
Four
weeks – Angola
One
week – Johannesburg office
One
week – Personal time in Johannesburg.”
[4]
The Applicant was paid his
remuneration in US Dollars. The clause in his contract dealing with
his terms and conditions of employment
reads as follows:
“
11
Standard Terms and Conditions
11.1
This contract shall be interpreted and applied in accordance with the
laws of Angola and any specific labour legislation in
force from time
to time.
11.2
Your remaining terms and conditions of employment shall be as set out
in the relevant statutes.
11.3
The Company reserves the right to make reasonable changes to any of
your terms and conditions of employment, which changes
shall be
Company
11.4
The terms and conditions of employment with the Company are of a
confidential nature and at no time shall they be divulged
to or
discussed with any employee or client of the Company.”
[5]
The contract was signed by the
Managing Director of Yokogawa South Africa (Pty) Ltd, a subsidiary of
Yokogawa Netherlands, Mr. H.J.
Van den Berg. The contract of
employment was concluded and terminated in South Africa. The letter
of termination was signed by
Van den Berg on behalf of the Angolan
branch of Yokogawa Netherlands. It was dated 23 February 2011. In
addition, the applicant
was remunerated by Yokogawa Netherlands as
his pay slips reflect. It is submitted by the third respondent that
the applicant rendered
his services in Angola for Yokogawa
Netherlands and when he was working in South Africa during his weekly
periods, he also rendered
his services for Yokogawa Netherlands.
[6]
Included in the record of the
arbitration is the Memorandum of Agreement between Van den Berg, the
third respondent and Yokogawa
Europe. The Introduction to the
Agreement reads:
“
YEF-SA
is a wholly owned subsidiary of YEF-HQ and requires to appoint the MD
as a director of YEF-SA and for the MD to have local
management
control of YEF-SA. This agreement sets out the terms of the MD’s
employment by YEF-SA and sets out his obligations
to and authority
levels from the holding company YEF-HQ.”
[7]
Van den Berg was also appointed
as the Manager of the Angolan branch of Yokogawa Netherlands in terms
of a separate one-year contract
renewable for a period of three years
which was signed on 27 January 2007. That contract was subject to
Angolan law. At the arbitration
proceedings the applicant testified
that Van den Berg was still earning a salary in Angola at the time of
his dismissal. This corroborates
the evidence of Van den Berg that he
wore two hats, that of Branch Manager of Angola and MD of the third
respondent. His evidence
was that he made a mistake in signing the
applicant’s contract of employment in his position as MD,
rather than as the Branch
Manager for Angola.
[8]
In
Astral
Operations Ltd v Parry
[2]
,
the LAC per Zondo JP (as he
then was) stated that given that s 115 of the Labour Relations Act
[3]
(LRA) provides that the CCMA has jurisdiction in the whole Republic
and, obviously, has no jurisdiction outside the Republic: “It
seems to me that in a case involving the CCMA the court could also
ask whether the employer's undertaking in which the employees
work is carried on, is inside or outside the Republic. If it was
carried on inside, the CCMA would then have jurisdiction and,
where
it was carried on outside, the CCMA would not have jurisdiction.”
[9]
In the case of
SA
Tourism v Monare and Others
[4]
,
which was overturned on appeal, the Court considered earlier
decisions on the extra-territorial application of the LRA, and found
that the authority binding on it was that the primary, but not sole,
consideration in determining the territorial application of
the LRA
was the location of the undertaking carried on by the employer. An
important dictum in that judgment was that given the
amorphous
meaning of the word 'undertaking', there will always be practical
difficulties in determining the location of an employer's
undertaking, especially in the case of an employer that conducts
operations on a global basis. Ultimately, it was a question of
fact,
to be determined by reference to all the available evidence.
[10]
The LAC in the
Monare
5
matter overturned the court
a
quo’s
judgment on the
facts and in doing so stated that:
“
[34]
What is clear from both Astral and Genrec Mei is that the undertaking
where the employee was employed (which was situated beyond
the
territorial jurisdiction of the respective fora in each of those
cases), has to be separate and divorced from the employer's
undertaking which is located within the jurisdictional territory of
the relevant forum.
[35]
In Astral, the employer's Malawian subsidiary, where the employee
worked, was separate and divorced from the employer's South
African
undertaking. The Malawian undertaking was an incorporated concern
with a separate personality. It was an independent company.
In Genrec
Mei, the court also emphasised the separateness and independence of
the employer's undertaking in Durban, from its undertaking
on the oil
rig, where the employee was employed.
[36]
The nub of the issue in this case, is not about where appellant was
employed, because it is common cause that he was employed
in the
first respondent's London office, but whether the London office was
an undertaking of the first respondent which was separate
and
divorced from its undertaking in the Republic of South Africa. In my
view it certainly was not.”
[11]
In this case, the applicant was
employed in the Angolan branch office of the third respondent’s
European holding company.
A document contained in the papers which
has been translated by a sworn translator reflects that “
YOKOGAWA
EUROPE BRANCHES B.V. – SUCURSAL DE ANGOLA”
was registered as a company and taxpayer by the Angolan Department of
Justice under registration number 1260/2006. The said legal
entity is
separate and divorced from the third respondent. Reporting lines to
Van den Berg fall to be understood as between employees
of the
Angolan branch office of the global company. I am also of the view
that given the fact that there was an express term in
the applicant’s
employment contract, that Angolan law would apply to the employment
relationship between him and the holding
company, this must be taken
into consideration and a court should not simply deal with the
locality of the undertaking test without
reference to the intention
of the parties in the employment contract.
[12]
In all the circumstances, the
award correctly found that the CCMA did not have jurisdiction to hear
the dispute before it. I make
the following order, taking into
account that the applicant is an individual who represented himself
and in addition was ill-served
by the remittal of his first review
application to the CCMA.
Order
1.
The review application is
dismissed
2.
There is no order as to costs
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
In person
For
the Third Respondent: Solomon Holmes Attorneys
[1]
SA Rugby
Players Association and Others G v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and
Another
(2008)29
ILJ 2218 (LAC) at paras 39 and 40.
[2]
(2008) 29 ILJ 2668
(LAC).
[3]
Act 66 of 1995 as
amended.
[4]
(2014) 35 ILJ 2280
(LC).
5.
Monare
v SA Tourism and Others
(2016)
37 ILJ 394 (LAC).