IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO: D656/99
In the matter between:
MN SIBIYTA First Applicant
BV GAZU Second Applicant
AZ NENE Third Applicant
AM ZONDO Fourth Applicant
MI NDWANDWE Fifth Applicant
and
AMALGAMATED BEVERAGES
INDUSTRIES LIMITED First respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
MR I MOODLEY Third Respondent
MASERUMULE AJ:
1. The applicants seeks to review an award handed down by the third
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respondent (“the commissioner”) on 7 August 1999, in terms of
section 145 of the Labour Relations Act, 66 of 1995, as amended, (“the
Act”).
2. The applicants had referred an alleged unfair dismissal dispute to the
CCMA for arbitration and the commissioner was appointed to arbitrate
the dispute. It appears from the commissioner’s award that the
applicants and the first respondent had agreed that the applicants
would lead evidence to establish the existence of a dismissal and that
the commissioner would first make a ruling on this point. The parties
had also agreed that in the event that the commissioner found that the
applicants had been dismissed, the matter would then proceed further
for a determination of the fairness or otherwise of the dismissals. The
commissioner’s award is therefore, limited to a determination of the
existence or otherwise of the dismissal of the applicants.
3. The application was not brought within the six-week period prescribed
in section 145 of the Act. I must therefore, first consider applicant’s
application for condonation for their non-compliance with the six-week
time limit imposed by section 145 of the Act.
4. The following material facts can be gleaned from the affidavits and
annexures filed in support of and in opposition to the application for
condonation:
4.1 the applicants received the award, which is dated 20 July 1998,
through the offices of their attorneys on 7 August 1998. The first
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respondent received it on 28 July 1998;
4.2 the applicants instructed their attorneys to institute review
proceedings but they did not have sufficient money to pay their
attorneys;
4.3 on 3 September 1998, applicants’ attorneys filed the notice of
motion to review the commissioner’s award with the Labour Court
but without any supporting affidavits. This was because the
applicants did not t the time have sufficient money to cover the
attorneys’ legal costs for drawing complete papers;
4.4 the application was sent by telefax to the respondent, which did not
receive it because two digits in the fax number used were incorrect;
4.5 the applicants only served the supporting affidavits on the first
respondent on 27 November 1998 and filed same on 3 December
1998. The first respondent filed an opposing affidavit on 14
December 1998, in which it, inter alia, pointed out that it had not
received the notice of motion and it therefore, considered the
application to be defective; and
4.6 the applicants only served the notice of motion on the first
respondent on 17 February 1999, together with their replying
affidavit, which was also out of time. The applicants have applied for
condonation for the late service and filing of the replying affidavit.
5. In view of the fact that even the first respondent did not receive the
award on 20 July 1998, I accept the applicants’ allegation that their
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attorneys only received it on 7 August 1998. It follows that the
applicants were required to bring their application for review on or
before 21 September 1998.
6. The applicants filed their notice of application on 3 September 1998
and the supporting affidavits on 3 December 1998. An application is
only made when served on all respondents and filed with the court. It
follows that the application was only made on 17 February 1999, some
four months out of time.
7. The approach which the court is required to adopt in condonation
applications has been exhaustively dealt with in a number of Labour
Court and Labour Appeal Court decisions. It suffices to refer to the
following passage from the Labour Appeal Court’s decision in Mziya v
Putco Limited [1999] 3 BLLR 103 (LAC) at 106:
“10) The approach which the industrial court should have taken in
considering an application for condonation of this kind has been recently re-
stated on a number of occasions. It is sufficient for present purposes to
refer to the following statement in the case of National Union of
Mineworkers v Council for Miner al Technology (unreported judgment of the
Labour Appeal Court case number JA94l97) at paragraph 10: "lt is accepted
by the industrial court and the Labour Appeal Court that in considering
whether good cause has been shown in an application of this kind, the
approach in Santam Insurance 1962 (4) SA 531 (A) at 532C-F should be
adopted. Radebe v Protea Funishers (1994) 15 ILJ 323 (LAC) at 325G-326G;
MM St eel Construcion v S teel Engineering Union of SA (1994) 15 lLJ 1310
(LAC) at 1311I-1321A; Oldfield v Roth (1995) 16 ILJ 76 (LAC) at 791J;
Fundaro vMclachlan & Lazar (1996) 17 ILJ 1183 (LAC) at 1187I-J an 1192J;
PPAWU v Dryer LAC case number JA35I97 at page 7. The approach is that
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the Court has a discretion, to be exercised judicially upon a consideration of
all the facts, and in essence it is a matter of fairness to both sides. Among
the facts usually relevant are the degree of lateness, the explanation
therefore, the prospects of success and the importance of the case. These
facts are interrelated: they are not individually decisive. What is needed is
an objective conspectus of all the facts. A slight delay and a good
explanation may help to compensate for prospects of success which are not
strong. The importance of the issue and strong prospects of success may
tend to compensate for a long delay. There is a further principle which is
applied and that is that without a reasonable and acceptable explanation
for the delay, the prospects of success are immaterial, and without
prospects of success, no matter how good the explanation for the delay, an
application for condonation should be refused: c.f. Chetty v Law ciet y 1985
(2) SA 756 (A) at 765A-C; NUM v Western Holdings Gold Mine (1994) 15 ILJ
610 (LAC) at 613E. The courts have traditionally demonstrated their
reluctance to penalise a litigant on account of the conduct of his
representative but have emphasised that there is a limit beyond which a
litigant cannot escape the results of his representatives lack of diligence or
the insufficiency of the explanation tendered. Saloojee v Minister of
Community Development 1965 (2) SA 135 (A) at 140H-141 D; Buthelezi v
Eclipse Foundries (1997) 18 ILJ 633 (A) at 638I-639A .”
8. In the present matter, there was a delay of at least four months in
bringing the application for review. This is a fairly long delay, and can
only be excused if the other requirements for condonation are tilted in
favour of the applicants.
9. This delay must, however, be seen in the light of applicants’ attempt
to comply with the provisions of the Act by filing a notice of motion
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within the prescribed time limit, though admittedly, it did not reach the
respondent due to an incorrect fax number being used. The supporting
affidavits were filed approximately two months out of time.
Nonetheless, the attempt to comply with the Act appears to have been
genuine. Coupled to this is their explanation that they did not have
sufficient funds to pay their attorneys. While this explanation is not
entirely satisfactory, the fact is that litigation requires substantial
financial outlay. The applicants say since they were out of work, they
did not have sufficient funds at hand to enable their attorneys to
proceed with the matter.
10. There is in my view, no real prejudice to the first respondent that was
occasioned by the delay in bringing the application. In its answering
affidavit, the first respondent does not allege any prejudice but merely
takes issue with the period of delay, the explanation therefore and the
prospects of success.
11. As regards prospects of success, I am of the view, for the reasons set
hereunder, that the applicants have very strong prospects of success
on the merits.
12. The commissioner was required to determine whether or not the
applicants had been dismissed. In so doing, he considered whether
they were employees and the meaning of dismissal in section 186 of
the Act.
13. In summary, the facts were that the applicants worked for the first
respondent on a casual basis for a number of years. For example, the
first applicant worked for the first respondent from 1987 until April
1997, sometimes working for three days in a week and at times, five
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days in a week. The second applicant had worked for the first
respondent from 1989 until 1997 when the alleged dismissal took
place, either fro five days in a week or three days in a week. The third
applicant worked for the first respondent from 1990 until April 1997.
14. What was common to all three applicants was the fact that they went
to the first respondent’s gate each day and would then be called in to
work. They regularly worked on this basis until they were informed
that the first respondent would no longer make use of casual labour in
1997, leading to their referral of their alleged unfair dismissal dispute
to the CCMA.
15. The evidence before the commissioner indicated that the first
respondent regarded the applicants as employees, albeit casual
employees.
16. The commissioner’s fundamental error is reflected in his
characterization of what he was required to decide. At page 22 of his
award, he states as follows:
“The central dispute of fact that I am required to resolve on the evidence is
whether the applicants who testified were employed continuously for five days
or whether they were employed as casual employees for no more than three
days in any week.”
17. This characterization of what the central dispute was all about is
misconceived. The question the commissioner was required to answer
was whether the applicants had been dismissed. This required a
determination of whether or nor they were employees as defined
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section 213 of the Act and the existence of a dismissal in terms of
section 186 of the Act. The question of whether they worked for three
or five days in a week was irrelevant, particularly because it was not
being asked so as to determine the status of the applicants as
employees or the existence of a dismissal. Rather, it was being asked
to determine whether the applicants were “permanent” or temporary
(casual) employees, a consideration which was of no relevance nor
consequence to the issue before the commissioner.
18. The commissioner then proceeded to analyse the evidence, from
which he concluded that the applicants were employed for not more
than three days in a week and were therefore, casual employees. In
this regard, he concludes as follows:
“I find that the employment relationship with the applicants as contemplated
by the company, is on a balance of probabilities, casual work as defined in the
Basic Conditions of Employment Act…
For the aforegoing reasons I have come to the conclusion that there has been
no dismissal of the Applicants within the meaning of section 186 of the Act.
What has happened is that the employer has failed to continue to offer
employment to the applicants, as it is entitled to do, given the nature of the
relationship which is sui generis. The species of employment that is particular
to this kind of relationship affords the flexibility to suit an employer according
to the needs of the business. The only condition that relates to this kind of
employment is that the employment relationship endure for no longer than
three days in any week. The relationship ends when the employer refuses to
offer further employment.”
19. The commissioner’s pre-occupation with whether or not the applicants
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were casual or permanent employees, and his reference to the Basic
conditions of Employment Act (3 of 1983), led him to a conclusion that
is completely unjustifiable, is legally incorrect and is clearly a result of
the commissioner’s failure to understand and appreciate his
jurisdiction and powers.
20. It was not necessary for the commissioner to embark on an enquiry of
whether or not the applicants were permanent or temporary
employees. Having accepted, as he indeed did in his award, that the
applicants were employed by the first respondent, albeit for three days
in a week, the enquiry should have been whether or not the first
respondent terminated their employment, for whatever reason. The
evidence before him was that the first respondent indeed terminated
such employment on the basis that it no longer required temporary
employees as it had reinstated some other employees that it had
previously dismissed.
21. Section 213 of the Act defines an employee in broad terms as any
person who works for another and receives or is entitled to receive
remuneration. There is no distinction in the Act between those who
work for three, or four or five days a week or for that matter, those
who are “casual” employees. The primary issue with which the Act is
concerned is whether a person is an employee and not an independent
contractor.
22. To label the relationship between the applicants and the first
respondent, which he describes as an employment relationship, as sui
generis, is to completely miss the point. The fact that it suited the first
respondent’s operational requirements to employ persons on a casual
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basis is irrelevant to a consideration of whether or not they have been
dismissed. It matters not that in terms of the now repealed basic
Conditions of Employment Act, 3 of 1983, the applicants were casual
employees and therefore, not entitled to certain rights and protection
under that legislation. It is the definition of an employee in the Act,
read with the meaning of dismissal in section 186, that the
commissioner was required to consider. He clearly failed to do so and
instead, gave consideration to irrelevant matters.
23. The commissioner, in considering whether or not there had been a
dismissal in terms of section 186 of the Act, moves from the premise
that such dismissal can only occur if you are a “permanent” employee.
He states as follows:
“The applicability of section 186(a) remains to be considered. Reference is
made to in this provision to termination with notice. Clearly this provision
contemplates the common law rule that an indefinite contract requires
termination upon reasonable notice. In casu, there was no suggestion that any
of the applicants received individual notices of termination.
The question remains, however, as to whether the employment relationship
between the Applicants and the employer can be described as one bearing
upon an indefinite contract, on a daily basis, in which notice of termination
was due. Are the facts susceptible to a finding that an indefinite contract
came into being?”
24. Once more, the commissioner asks the wrong questions. Section
186(a) provides that a dismissal takes place when an employer
terminates a contract of employment with or without notice. It matters
not whether the contract of employment involved is a permanent one
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or casual or for that matter, a fixed term one. In the present matter,
the first respondent terminated the employment of the applicants
without notice. The applicants were thus dismissed.
25. I am satisfied that the commissioner’s award is riddled with such gross
misapplication of the law and a misconception of the issues that he
was required to decide that it cannot be allowed to stand. It is my
conclusion that the award stands to be reviewed and set aside.
26. Taking into account the period of the delay, the fairly reasonable
though not completely full and satisfactory explanation, the absence of
prejudice to the first respondent and an unassailable case on the
merits, I am of the view that the late filing of the application should be
and is hereby condoned.
27. In view of my conclusions regarding the prospects of success, it
follows that the award rendered by the commissioner must be
reviewed and set aside, on the basis that the commissioner exceeded
his powers and rendered an award that is entirely not justifiable,
having regard to the facts before him and the legal principles that he
was required to apply.
28. It will serve no purpose to refer the issue dealt with in the award to the
CCMA, given its nature and the observations that I have made. The
CCMA still has to consider whether the dismissal of the applicants was
fair and the matter will be referred to it for that purpose.
29. I accordingly make the following orders:
29.1 Condonation is hereby granted for the late service and filing of this
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application;
29.2 The award handed down by the third respondent dated 20 July
1998, is hereby reviewed and set aside and is substituted with the
following:
“The applicants were dismissed by their Employer, Amalgamated
Beverages Industries Limited.”
29.3 The matter is referred back to the CCMA for a determination of
whether or not the dismissal of the applicants was fair;
29.4 The first respondent is to pay applicants’ costs.
____________________
MASERUMULE AJ
DATE OF HEARING: 1 September 2000
DATE OF JUDGEMENT: 8 January 2001
MR JAFTA of JAFTA & CO, DURBAN
FOR FIRST RESPONDENT: MR J FORSTER of BARKERS ATTORNEYS, DURBAN
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