JUDGMENT
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT BRAAMFONTEIN REPORTABLE
CASE NO: J619/05
Date Heard: 29/03/2005
Date Delivered: 05/04/2005
In the matter between
TRANSMAN APPLICANT
and
SOUTH AFRICAN POST OFFICE RESPONDENT
J U D G M E N T
PILLAY D, J :
1. This is an unusual application between two employers. The
applicant provides temporary employment services to the
respondent. The applicant and respondent are employers of the
750 employees placed by the former with the latter.
2. This application is brought on an urgent basis for an order
interdicting the respondent from obstructing the applicant in the
process of conducting consultations with the employees and to
compel the respondent to provide it with certain information to
enable it to comply with its obligations in terms of section 189 and
189(a) of the Labour Relations Act 66 of 1995 (LRA).
3. The relationship between the parties began in 1994. Contracts were
concluded at the time for the supply of services. The applicant was
responsible for paying the employees and the respondent
undertook to pay the applicant various rates that were agreed within
30 days of receipt of an invoice.
4. It was also a term of the agreement that although the parties were
jointly and severally liable not to commit a breach of clause 5.4.1,
the applicant alleges that the party at fault indemnified the other
party unconditionally against such breach. Clause 5.4.1 of the
agreement records inter alia the applicant's undertaking to observe
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the provision of the LRA and the Basic Conditions of Employment
Act 75 of 1997. On 21 June 2000 the respondent issued a
memorandum to employment service providers who tendered
successfully to the effect that the respondent’s remuneration of the
temporary service providers would be based on the rate of
remuneration of the permanent employees. The applicant and its
partner tendered successfully and were accepted as service
providers on 12 April 2000. Precisely what the remuneration
amounted to is the subject of litigation pending in the High Court.
5. Following the 12 April tender the applicant accepted payment of an
amount less than that to which it alleged it was entitled to from the
respondent. When this contract terminated on 30 March 2002 the
respondent offered to renew it on the same terms and conditions
but on a month to month basis. That is the basis on which the
contract between the parties continued. On 24 December 2004
the respondent gave the applicant notice of its intention to terminate
the contract and services of its employees effective after 31
January 2005.
6. The applicant met the respondent on 10 January 2005. Following
that meeting the respondent agreed on 11 February 2005 to extend
the termination notice to 31 March 2005. It reiterated that it would
proceed with the cancellation of the contract.
7. Based on certain alleged conduct of the respondent's managers,
the applicant deduced that the respondent still required the services
it provided. This, the applicant informed the respondent, was
either a waiver of its notice of termination, or it was an interference
with the relationship between the applicant and its employees,
which amounted to unlawful competition.
8. On 18 February 2005 the respondent denied that it waived its rights
8. On 18 February 2005 the respondent denied that it waived its rights
and persisted that the notice of termination was valid. The applicant
urged the respondent to reconsider its position and to furnish an
explanation for replacing it as a service provider. It also sought to
hold the respondent liable for payment of certain statutory dues.
The respondent declined to disclose the reasons for terminating the
contract and denied liability for payment of the statutory dues.
9. The applicant requested even more information and reiterated that
JUDGMENT
it was unable to consult meaningfully with its employees in terms of
the LRA. On 18 March 2005 the respondent again resisted the
request. The applicant further alleges that on 22 March 2005 the
respondent denied the applicant's access to its employees in order
to consult with them. The respondent denies this and contends
that the applicant did not make proper arrangements. For reasons
that will emerge, it will be obvious that this is not a dispute of fact
that I need to resolve. Nor is it one that I can resolve on the
papers.
Urgency
10. The first ground on which this application is challenged is that it is
not urgent. The contract was to terminate the day after the hearing
of the application, that is on 31 March 2005. The applicant took
steps to avoid the application. But the respondent has consistently
and firmly resisted all the applicant's requests for information. The
applicant should have realised that the respondent was unrelenting.
It also had enough time to bring the application in the ordinary
course, during normal Court time and with preference on the roll.
Nevertheless I agreed to waive compliance with the normal rules of
Court, because of the importance of the matter and the number of
employees involved and in the interest of expeditious, effective
dispute resolution.
Jurisdiction
11. It became evident for the first time during argument that the
applicant was relying on sections 157(2)(a) and 158(1)(a)(iii) of the
LRA. Section 157(2)(a) provides:
"The Labour Court has concurrent jurisdiction with
the High Court in respect of any alleged or
threatened violation of any fundamental right
entrenched in chapter 2 of the Constitution of the
Republic of South Africa, 1996, and advising from;
a) employment and from labour relations"
Section 158(1)(a)(iii) provides:
a) employment and from labour relations"
Section 158(1)(a)(iii) provides:
"The Labour Court may
a) make any appropriate order including;
(iii) an order directing the performance of
any particular act which order, when
implemented, will remedy a wrong and give
effect to the primary objects of this act."
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12. Mr Van Blerk for the applicant drew my attention to my judgment in the matter of
PFG Building Glass (Pty) Ltd v CEPPAWU & Others (2003) 5 BLLR 475 (LC)
relating to the disclosure of information in order to exercise a right or carry out an
obligation. The applicant alleged that it was entitled to the information to enable it
to carry out its obligation under the LRA and the BCEA. It denied that it relies on
the contract as the basis for the information.
13. The respondent contended that the Court also lacked jurisdiction to
resolve this dispute as it was between employers. The right to the
information truly belonged to the employees and not to the
applicant, so it was submitted.
14. It is obvious that the applicant had not considered the issue of
jurisdiction until the respondent raised it. It should have been
specifically pleaded so that the respondent would have been aware
of the case it had to meet. As a public entity it is also possible that
the respondent has an obligation under the Promotion of
Administrative Justice Act No.3 of 2000 (PAJA) to provide
information. Neither party had prepared argument on whether the
respondent is an organ of state, whether PAJA applies to it, and
whether there was an alternative remedy that the applicant should
have pursued instead of this application. Consequently, I can make
no finding in that regard. Considering that the applicant was
represented by two counsel, the respondent was justified in its
objection to jurisdiction. Nevertheless, the Court has to satisfy itself
that it has jurisdiction even if it is not specifically pleaded. The
Court is satisfied that on the basis of the sections of the LRA
referred to above it has jurisdiction to hear the matter.
Lis Pendens
referred to above it has jurisdiction to hear the matter.
Lis Pendens
15. The third objection raised was a defence of lis pendens based on
the application pending in the High Court. The relief claimed in the
High Court and in this application are different even though similar
issues would be traversed. But the Labour Court exercises in
addition an equity jurisdiction. The considerations that apply in the
Labour Court are different from those taken into account by the
High Court. Relevance and confidentiality may be headings under
which both Courts may consider an application for disclosure of
information. However, its relevance to protecting socioeconomic
rights, such as fair labour practises, may differ from the relevance
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of information in a purely commercial, contractual dispute. In my
view therefore the defence of lis pendens must fail.
The need for the information
16. The applicant requires the information purportedly to consult
meaningfully with the employees. Yet it has not placed any
evidence before the Court as to what steps it has taken thus far in
carrying out its obligations in terms of section 189 and 189(a) of the
LRA. More specifically, there is no evidence as to when and
whether the applicant notified its employees that the contract with
the respondent would terminate on 31 March 2005. The strongest
ally the applicant could have drawn into the application is its
workforce. If the applicant is to be believed that it is in the interest of
the employees that this application was launched, the applicant has
not led any evidence of attempts to secure the participation or even
endorsement of the employees of this application.
17. On the applicant's version the respondent is contracting with some
of the employees directly. Perhaps the employees are not unhappy
with this development. If the information is needed by the
employees, they can initiate their own proceedings to obtain it. If
the applicant had given notice of the possibility of their dismissal as
soon as it became aware on 24 December 2005 of the termination
of the contract with the respondent, the employees might have had
sufficient time to ask the respondent and the applicant since they
are both jointly and severally liable towards their mutual employees
for the information. If the respondent resisted furnishing the
information, the CCMA could have been seized with the matter
without the need for this application.
18. The Court has not been told that the employees are aware that their
employment at the respondent would terminate a day after the
employment at the respondent would terminate a day after the
hearing of this application. Nor is the Court aware of what, if
anything, the employees intend to do about that.
19. If concern for the employees' interests was the principal, if not the
sole reason for this application, the applicant has clearly
underplayed their role in the entire dispute. Hence, I am not
convinced that this application is motivated by the interests of
protecting the employee. There is another interest at play. That is
the interest that the applicant has in retaining a commercial contract
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with the respondent. That is a matter that is still pending in the
High Court. I cannot discount the strong likelihood that this
application is subversively aimed at preempting the outcome of the
High Court application. This application is a second bite at the
cherry.
20. If I am wrong, then the employees still have the option of asking for
the information themselves. If the applicant does not have the
information and is genuinely unable to comply with its obligations,
then it could have a good defence against a claim for unfairness by
its employees. This application would be testimony to its efforts at
complying with its obligations.
21. Nevertheless, the alleged lack of information does not prevent the
applicant from carrying out its obligations towards its employees to
ensure that their dismissal is otherwise fair.
22. In so far as this application is a stratagem by the applicant to
escape compliance with those obligations with which it could have
complied, the Court will not allow itself to be used in that fashion.
23. In the circumstances, I dismiss the application with costs.
_________
Pillay D, J
FOR THE APPLICANT: Adv. P. Van Blerk
INSTRUCTED BY: Sim Attorneys Inc.
FOR THE RESPONDENT: Maserumule Inc