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[2010] ZAWCHC 659
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Khan v Local Trans and Another (C690/2009) [2010] ZAWCHC 659 (20 April 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
CASE
NUMBER: C690/2009
DATE:
20 APRIL 2010
In
the matter between:
T
A KHAN
Applicant
and
LOCAL
TRANS
1
st
Respondent
COMMISSIONER
2
nd
Respondent
J U
D G M E N T
CHEADLE,
AJ
:
This
is an unopposed application to review and set aside a ruling of the
second respondent, a Commissioner at the CCMA refusing
condonation
for the late referral of a dismissal dispute to the CCMA. The
principal reason for the refusal of condonation
appears from the
Commissioner’s notes, namely that there was no prospect of
success. The Commissioner concluded this
on the basis that that
the applicant had entered into a service agreement with the third
respondent in February 2009 and was accordingly
not an employee when
he was dismissed in April 2009.
It
is clear from the founding affidavit that he entered into the service
agreement because, if he did not do so, he would no longer
be
employed and he could not afford to be without an income. In his
testimony, the applicant confirmed what is said in that affidavit.
Although
he describes himself as an independent subcontractor in those three
months, it is evident from testimony that he gave before
me, that
what transpired was an offer to accept the so-called service
agreement or lose his job. Although the service agreement
was
described as an owner-driver arrangement, the vehicle belonged to the
employer. The employees continued to do exactly what
they had done
before 31 January 2009. In terms of the service agreement, he was
paid R700 per day from which the sum of R500 for
rental of the
owner’s vehicle was deducted, amounting to effective take home
pay of R200 per day.
This
meant that the applicant earned R4 000 less a month than he did
under his employment contract. Under that contract he
received R7 500
a month whereas he only took home R3 500 under the service
contract. The applicant also testified the
3
rd
respondent told him that he did not want to have the responsibility
of reporting to the bargaining council and paying various amounts
of
money to it and that he wanted owner drivers instead. As the
applicant stated, the object of this service agreement was
to avoid
his labour law responsibilities.
It
follows that the second respondent failed to properly apply his mind
to whether or not the applicant had in fact terminated his
employment
on 31 January 2009 and whether that termination and the new service
contract, was a ruse to reduce the applicant’s
salary and to
avoid the obligations of the bargaining council and the employment
laws. Having failed to take this into account,
it follows that
the commissioner committed an irregularity and accordingly should
have granted the condonation ruling based on
the applicant’s
prospects of success.
Moreover
if in fact the service contract was simply an attempt to avoid the
obligations of the employment laws, the employee would
still be an
employee for all intents and purposes when he was dismissed on 29
April, which of course would also mean that the period
of delay would
be substantially reduced.
For
these reasons, the matter is referred back to the CCMA for it to
appoint another commissioner to hear the matter. So I
make the
following order:
1.
The condonation ruling award dated 26 August 2009 under CCMA case
number WECT 11412/09 is reviewed
and set aside.
2.
The first respondent is required to remit the dispute to another
commissioner for determination.
3.
There shall be no order as to costs, the matter being unopposed.
_____________________
CHEADLE,
AJ