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[2018] ZALCJHB 359
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Peinke v Boehringer Ingelheim (Proprietary) Limited and Others (JS 338/15) [2018] ZALCJHB 359 (2 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JS 338/15
In
the matter between:
MAUREEN
ANN PEINKE
Applicant
and
BOEHRINGER
INGELHEIM (PROPRIETARY) LIMITED
First Respondent
JARDINE
LLOYD THOMPSON
(PROPRIETARY)
LIMITED
Second
Respondent
CRS
HR PAYROLL
SOLUTIONS Third
Respondent
Heard:
18 May 2018
Delivered:
2 November 2018
Summary:
An application for joinder cannot succeed when the applicant has not
shown the respondent’s direct and substantial
interest in the
matter.
JUDGMENT
LALLIE,
J
[1]
The applicant was employed by the first respondent. Subsequent to the
termination of the employment relationship she referred
an
automatically unfair dismissal dispute to this Court. Pursuant to the
filing of the response to the statement of claim by the
first
respondent the applicant filed the application at hand seeking an
order that the second and third respondents be joined as
parties. In
this application the applicant seeks an order against the third
respondent only. The application is opposed by the
third respondent.
The applicant’s basis for the relief she is seeking is that in
or during September 2015, she became aware
that her functions were
outsourced to the third respondent. The third respondent denied the
applicant’s averment. The applicant
did not file a replying
affidavit.
[2]
In order to have the third respondent joined as a party, the
applicant has to prove that the third respondent has a direct and
substantial interest in the matter. It was argued on behalf of the
third respondent that the applicant laid no basis to draw a
nexus
between the first and the third respondents. It therefore has no
substantial interest in the main case. The applicant denied
having
failed to establish that the third respondent has a direct and
substantial interest in her automatically unfair dismissal
dispute.
[3]
The applicant did not lay a factual foundation for her averment that
the third respondent should be joined as a party. The allegation
that
she became aware in 2015 that her duties had been outsourced to the
third respondent is insufficient. I do not accept her
argument that
she had no duty to file a replying affidavit and deal with the third
respondent’s denial that her duties were
outsourced to it.
After the third respondent had denied a material averment in its
answering affidavit, the applicant had an obligation
to reply
particularly because the nexus she sought to create between the first
and third respondent was not substantiated in the
founding affidavit.
The applicant did not disclose the manner in which she became aware
of the alleged outsourcing, its timing
as well as the entity which
outsourced her duties. I am not convinced by the applicant’s
argument that the facts on which
the decision on joinder should be
based will become clear during the main case. For the third
respondent to be made a party to
the main case and incur costs of
opposing it, it is for the applicant, who seeks the third respondent
to be joined, to prove the
legal basis for the joinder. In this case
the applicant has no succeeded.
[4]
The third respondent sought a costs order against the applicant on
the basis that her case has no merit. I am not convinced
that the law
and fairness justify a costs order against the applicant. Although
she has not succeeded, the applicant’s attempt
to join the
third respondent as a party was not unreasonable.
[5]
In the premises, the following order is made:
Order
:
1.
The
application to join the third respondent as a party to the main
application is dismissed.
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: Advocate Saunders
Instructed
by:
Fluxmans Inc
For
the Respondent: Advocate Keijser
Instructed:
Ken Mcdade Attorneys