Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J3564/00
2002.05.31
In the matter between
NUMSA Applicant
and
TSHIGI Respondent
__________________________________________________________
J U D G M E N T
__________________________________________________________
NGCAMU, A.J: The applicants seek to review and set aside the
arbitration award made by the first respondent in his capacity
as an arbitrator. The third respondent is opposing the
application.
The application for review is one day late. This is an
insignificant period of time. The applicant has explained that
the delay was caused by communication difficulties between
the second applicant and the applicant's attorneys. The reason
given is acceptable. The respondents have not opposed the
application for condonation. There will be no prejudice on the
respondent if the condonation is granted.
Taking into account the factors usually considered as set
out in Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A)
the applicant has made a case for condonation. The
application is accordingly granted.
The first applicant is a union, which has brought the
application on its own and on behalf of the second applicant.
The second applicant was an employee of the third
respondent, and a member of the first applicant.
The second applicant commenced working for ESCOM in
August 1994. There was no signed contract of employment.
His duties were to deliver electricity bills to customers as well
as ESCOM's pamphlets. He collected information from
customers, meter numbers and meter readings. Applicant
worked in Sebokeng Zone 6. He was paid 55c per account
delivered. In January 1995 he was transferred to
administrative work at Sebokeng Zone 7. He performed the
same job he did in Zone 6. In August he was transferred to
Polokong Township to recruit customers. He worked in a steel
container provided by ESCOM. He was supervised by an
ESCOM employee. He explained the ESCOM project to the
customers. At the completion of the project he remained to
deal with the queries the customers had. In January 1997
applicant signed a 6-month contract of employment. In terms
of this contract he was employed as an electricity
representative. He was remunerated monthly for services
provided. He was required to complete an invoice for services
rendered. The contract expired in June 1997. On expiry of this
contract he signed another contract for the same period. This
contract provided that applicant was an independent
contractor. The contract expired in December 1997. At the
expiry of this agreement no further agreement was signed by
the applicant. However he continued working.
All temporary employees, except for the applicant, were
employed as permanent employees. In October 1998 the
applicant referred an unfair labour practice dispute to the
CCMA. The Conciliation did not resolve the dispute. The
dispute was then referred for arbitration. This dispute was
however never arbitrated.
On 31 March 1999 second applicant was advised that his
services were no longer required. This was confirmed by a
letter dated 8 April 1999. Applicant then referred an unfair
dismissal dispute to the CCMA for conciliation. The dispute was
not resolved, and a certificate was issued. He then referred the
dispute for arbitration. During the arbitration ESCOM's
representative raised a point in limine that the applicant was
not an employee and therefore the arbitrator had no
jurisdiction.
The second point raised was that the applicant should
have exhausted internal process. The arbitrator then ruled that
the applicant was not an employee as defined by the Labour
Relations Act, and accordingly the CCMA had no jurisdiction. In
respect of the second point the arbitrator ruled that even if she
had ruled that applicant was an employee, she would not have
had jurisdiction because the dispute was referred prematurely.
The applicants have sought to review the ruling of the
commissioner on several grounds. These grounds of review are
set out in the applicant's affidavit, and I do not have to set
them out again. The applicant has made bald allegations in
regard to several issues, unsupported by evidence. These
issues were not taken up in argument. The review was argued
on two grounds.
The applicant submitted that the commissioner did not
consider the evidence that the applicant performed his job as
an employee of ESCOM, although he signed a contract to the
effect that he was an independent contractor. It was further
submitted that the commissioner did not consider applicant's
evidence to the effect that after December 1997 no further
contract was signed. The applicants further submitted that the
commissioner did not consider certain evidence placed before
her.
The issue between the parties is whether the second
applicant was employed by the third respondent as an
employee in the context of the Labour Relations Act. The
second applicant's submission is that the third respondent
regulated his hours. He performed the same functions as those
performed by the ESCOM employees. ESCOM provided him
with an office and equipment for his job. He further submitted
that he was supervised by managers of ESCOM and he
attended the team session meetings with ESCOM's employees.
It was submitted by Mr Daniels on behalf of the applicants that
the commissioner did not consider this evidence placed before
her.
The applicant's further submission is that the second
applicant was paid regularly. It was therefore submitted that
the applicant was not employed to perform specific tasks. The
evidence however discloses that the second applicant was
employed to work on projects. The arbitration record is not a
good one. The dispute raised by the parties can however be
determined on the evidence available.
The applicants have to show that there is a defect in the
award as contemplated in section 145 of the Labour Relations
Act. The defects in the award would include the
commissioner's misconduct. In Hyper Chemicals International
(Pty) Ltd v Maybaker Agrichem (Pty) Ltd 1992 (1) SA 89 (W)
the court held that if and where an arbitrator's award is wrong
in law, this is not enough to set it aside. The court held that a
mistake, no matter how gross, is not misconduct. At most
gross mistake may provide evidence of misconduct in the
sense that it may be so gross or manifest that it could not
have been made without the arbitrator committing a
misconduct. In such a case the court might draw the inference
of misconduct.
For the applicants to succeed in proving misconduct they
have to show that the commissioner did not consider relevant
issues in accordance with the law and the interests of justice.
Mr Mokoena, for the third respondent, submitted that the
commissioner considered all the relevant evidence.
It is common cause that there was no tax or provident
funds deductions deducted from the second applicant's salary.
ESCOM did not deduct any PAYE from the salary of the second
applicant, unlike other employees of ESCOM. The second
applicant submitted invoices for services rendered. As a result
of this the second applicant did not have a fixed salary. His
salary was determined by the hours he spent providing
services, which had to be verified from the records.
Clause 4.3 of the agreement signed between ESCOM and
the second applicant provides that:
"This agreement does not entitle the electricity representative
to any expectation to be appointed in future by ESCOM neither
in the capacity as an employee nor in the capacity of an
independent contractor."
Paragraph 5 provides:
"This agreement shall, notwithstanding the date of signature,
be deemed to have commenced on the effective date, and
continue for a period of three months (as a trial period) subject
to either party giving the other not less than one month's
written notice of termination. This agreement may also be
extended in writing by additional monthly periods after the
initial six months' period. All other terms and conditions will
still apply."
These clauses indicate that second applicant was not
entitled to expect to be an employee of ESCOM. It was a term
of the agreement that the second applicant would be paid on a
monthly basis.
Clause 11 of the agreement provides:
"11.1 The electricity representative shall keep and regularly
maintain the necessary timeous and accurate books and
records of all transactions related to or contemplated by
agreement to permit verification at any reasonable time of all
amounts to be paid by ESCOM.
11.2 The electricity representative shall also keep any other
financial or statistical information which may be required by
ESCOM from time to time."
It was not submitted that other employees of ESCOM
were required to keep a record book recording the
transactions to verify the amounts payable to the second
applicant. The applicant was not entitled to benefits afforded
to other ESCOM employees. He also did not have the company
number like other employees of ESCOM. This to my mind
indicates that the applicant was differentiated from other
employees.
One of the factors to be taken into account to determine
if a person is an employee or an independent contractor is to
see if the employer has control over him. I would venture to
state that the business of the employer has to be taken into
account. If the work to be performed has to be done during
certain hours of the day, the employer is entitled to stipulate
when the task has to be performed. It does not assist the
employer to allow the contractor to do work at a time when it
is not possible to check the work.
Applying this scenario to the present case, it is logical
that the second applicant had to submit the meter readings
and queries from customers during ordinary working hours.
This is done to enable ESCOM to solve the queries submitted
at a time when the staff is available. Similarly, the employee is
entitled to determine how the task is to be performed. The
employer is accordingly entitled to train the contractor on how
the task is to be performed. In so doing the independent
contractor may be required to attend the sessions provided by
the employer. The employer would then be entitled to check if
the task is done to the satisfaction of the employer.
In my view it would be proper for the employer to
provide working equipment to be used by the contractor,
particularly where certain forms have to be completed as in
the present case.
The second applicant has further submitted that he had
to report when he would be absent from work.
In my view it would be absurd to conclude that the
contractor is an employee for the reason that he has to report
when he would be absent. ESCOM required that there would
be a representative at a particular area on a daily basis. It was
therefore entitled to know if the representative was not
available so that alternatives could be made if need be.
It was also submitted that ESCOM employed other
employees as full-time employees, who were in a similar work
environment. The second applicant did not provide evidence to
show that the others had signed as independent contractors
agreement. In the absence of such evidence the inference can
be inferred that he was different from the others. There is no
evidence that the second applicant applied for a vacant post to
become a permanent employee. The fact that the second
applicant continued to work on the same terms and conditions
after the expiry of the agreement does not entitle him to be
treated as a permanent employee.
Another problem facing the applicant is that he does not
show from which period he regards himself as an employee, as
defined in the Labour Relations Act, in view of the agreement
that he had signed. Even if the second applicant is regarded as
a temporary or casual employee, as provided for in clause 12.4
of ESCOM's conditions of employment, the termination of
employment is by notice. The applicant was given a notice.
The termination of employment could not therefore be said to
have been unfair. However, the applicant lived with the
independent contract agreement, and performed in terms
thereof. He only declared a dispute when other employees
were taken on permanent basis. This, to my mind, shows that
the applicant had regarded himself as an independent
contractor as opposed to the other employees of ESCOM.
In my view the commissioner considered all the facts
placed before her. The award has been reasoned out and
arrived at after considering all the evidence before her.
The applicants further criticise the commissioner for not
applying the correct legal test.
The applicants have failed to show that the
commissioner failed to apply the correct test which should
justify the review of the award. The award made was based on
the evidence before the commissioner. If the applicants
wanted to rely on a mistake or law, they must show that the
mistake is so gross that the award cannot be allowed to stand.
In my view they have failed to do so.
It was contemplated within the framework of the Labour
Relations Act that some awards may not be satisfactory. This
however does not provide a ground for the review. The court is
not empowered, in a review, to scrutinise the award to find the
loopholes in order to set aside the review. As long as the court
is satisfied on the evidence provided that the commission
applied his mind to the facts the award would pass the test.
This will be the case even if the commission arrives at the
wrong conclusion. The court is not looking for the correctness
of the award, but for the reasons for arriving at a particular
decision. In short, the commissioner simply applies logic on the
facts presented.
In the present case I am not persuaded that the
commissioner committed any irregularity, or committed any
misconduct. I am not persuaded that any injustice was
perpetrated as a result of this, and also as contemplated in
Pure Fresh Foods (Pty) Ltd v Dayal and Another (1999) 20 ILJ
1590 (LC). The applicants have failed to show that he was
deprived of a fair hearing in this matter.
In the light of the above the award cannot be interfered
with.
O R D E R
The order that I make is therefore the following:
(a) The application for review is dismissed.
(b) The applicants are ordered to pay the costs of the third
respondent.
ON BEHALF OF THE APPLICANTS: ADV DANIELS
ON BEHALF OF 3RD RESPONDENT: ADV MOKOENA