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IN THE LABOUR COURT OF SOUTH AFRICA

Held in Johannesburg

Case No J1315/97

In the matter between

Dan Vice Applicant

and

The Commission for Conciliation, Mediation

and Arbitration First Respondent

B. N. O. Jammy Second Respondent

M D Engineering and Contracting Services Third Respondent

G E A Aircooled Systems (Pty) Ltd Fourth Respondent

JUDGEMENT

ZONDO J:

[1] In this matter the applicant has brought an application asking this Court to review and set aside an award which was handed down by the second respondent, a senior commissioner of the CCMA, pursuant to arbitration proceedings conducted under the Labour Relations Act, 1995 to resolve an unfair dismissal dispute which was alleged by the applicant against both the third respondent (i.e. M D Engineering and Contracting Services) and the fourth respondent (i.e. G E A Aircooled systems). In that award the second respondent held that the applicant had been employed by the third respondent and not the fourth respondent. He also held that the applicant was not entitled to any relief.

[2] The first respondent is the Commission for Conciliation, Mediation and Arbitration (“the CCMA”). The second respondent is the senior commissioner who arbitrated the dispute under the auspices of the CCMA. The third respondent is a temporary employment service. The fourth respondent , namely, GEA Aircooled Systems is a private company to whom the third respondent provided artisans who performed work for the fourth respondent and in this case had been provided with the applicant by the third respondent.

[3] It would appear that the issue which the second respondent had to decide was whether the applicant had been dismissed unfairly by the fourth respondent, alternatively, by the third respondent in circumstances rendering the two, namely the third and fourth respondents, jointly and severally liable therefor. In his award the second respondent found that the applicant’s employer was the third respondent and that the fourth respondent was not the applicant’s employer. In this regard the second respondent relied, at least in part, on the provisions of sec 198(2) of the Act. Sec 198(2) says :-

“For the purposes of this Act, a person whose services have been procured for or provided to a client by a temporary replacement service is the employee of that temporary employment service and the temporary employment service is that person’s employer”.

[4] This application is said in par 9 of the applicant’s founding affidavit to have been brought in this Court in terms of sec 158(1)(g) of the Act. The founding affidavit of the application was prepared prior to the handing down by the Labour Appeal Court of its judgement in Carephone (Pty) Ltd v Marcus NO and Others Case noJA 52/98 in which it was held that review applications in respect of CCMA awards can only be brought to this Court under sec 145 of the Act.

[5] Mr P. Jammy, who appeared for the second respondent, submitted that the mere fact alone that the applicant said he was bringing this application in terms of sec 158(1)(g) of the Act was sufficient to justify this Court dismissing this application in the wake of the aforesaid ruling of the LAC in Carephone. I am unable to uphold this submission. To uphold it would, in my view, amount to elevating form above substance which, I think, should, as far as possible, be avoided by a court.

[6] I think the proper approach must be one which is founded on considerations of fairness to all parties and on sound principles of the administration of justice. Such an approach will, in my view, ensure that the Court considers an application which may in substance fall within the ambit of sec 145 even though it is stated to be brought in terms of sec 158(1)(g). Also the Court will, I think, dismiss without much ado an application which is stated to be brought in terms of sec 145 if the assessment of the contents of the founding affidavit reveals that in substance it is a review application brought in terms of sec 158(1)(g) of the Act. Accordingly I am not prepared to dismiss the applicant’s application simply because it is stated to be brought in terms of sec 158(1)(g). I will proceed to examine its substance to see whether it can be said to establish grounds falling under sec 145. In fact in par 10 of his founding affidavit the applicant makes allegations which would bring this application under sec 145. He alleges gross irregularity on the part of the second respondent and also makes the allegation that the second respondent exceeded his powers - both of which constitute grounds of review under sec 145. I now turn to consider the merits of the application.

[7] The “grounds” of review on which the applicant relies to have the award set aside are to be found in paragraphs 10, 11 and 13 of the founding affidavit. I propose examining each of these grounds.

[8] In par 10 the applicant says the following :

“I am advised and respectfully submit that the second respondent is grossly irregular [sic] and should be reviewed and/or set aside [sic]. As will appear hereunder, I state that the second respondent exceeded his powers or failed to exercise his powers in a fair and in a judicial manner, and further made various errors of law as will appear hereunder”.

It will be seen from this paragraph that the following is advanced as the basis why the award should be reviewed and set aside :-

(a) that the second respondent “is grossly irregular” [sic];

(b) that the second respondent exceeded his powers; or

(c) that the second respondent failed to exercise his powers in a fair and judicial manner; and

(d) that the second respondent made various errors of law.

[9] On their own the contents of par 10 do not make out any case for the applicant because it simply contains bold allegations. At any rate even the applicant does suggest that those allegations will be substantiated in the paragraphs coming after par 10.

[10] In par 11.1 it is alleged that the second respondent erred when he found that only the third respondent was the employer of the applicant. He says what should have been found was that both the third and fourth respondents were the employers of the applicant. No basis is advanced why it is alleged that the second respondent erred in this regard - assuming that such error was a ground for review. In the absence of any substantiation, that “ground” of review must fail. At any rate I am of the opinion that such ground would not fall within the ambit of sec 145 of the Act.

[11] In par 11.2 the “ground” of review advanced is that the second respondent erred “when he inferred from sec 198 that the fourth respondent was not the applicant’s employer”. Again I am of the view that, quite apart from whether or not the second respondent erred in this regard, the contents of par 11.2 do not establish a ground of review falling under sec 145 of the Act.

[12] In paragraphs 11.3 and 11.4, the applicant says :-

“11.3 The learned commissioner incorrectly found that the absence of a contractual relationship between the applicant and the fourth respondent denies him relief. I am advised that it would be argued on my behalf that a contractual relationship is not a requirement for the existence of an employer/employee relationship as defined as in sec 213 of the Act.

11.4 The learned commissioner erred and did not give sufficient consideration to the definition of an employer and employees as defined in section 213 of the Act when he found that the fourth respondent’s right to terminate the services of the applicant is an issue which does not fall within the jurisdiction of the first respondent”.

In both paragraphs 11.3 and 11.4 the contents thereof do not disclose grounds of review falling within the ambit of sec 145. They seem to reflect an attempt by the applicant to bring to this Court an appeal against the award of the second respondent - and to dress such an appeal like a review. Accordingly the contents of those paragraphs also lack merit in so far as they are used to support an application to review the second respondent’s award.

[13] The complaint which the applicant sets out about being denied legal representation in par 13 is also based on the ground that the second respondent “erred by not permitting” him to utilize the services of a legal representative. This “ground” of review as formulated in the applicant’s founding affidavit also does not fit into any of the grounds of review stated in sec 145. In fact this “ground” of review is also not substantiated. The other complaint is stated in par 13.1 and 13.2 and is about an adjournment. That complaint is the subject of a dispute of fact. As there was no application for the matter to be referred to oral evidence, the decision of this Court on that issue must be based on the respondent’s version. On that version the applicant’s complaint is totally unfounded.

[14] The above constitutes a consideration of all the grounds on which the applicant sought in his founding affidavit to have the second respondent’s award reviewed and set aside. I have found that none of those grounds either fall under sec 145 or have merit. During argument Mr Heyns, who appeared for the applicant, made various submissions in his criticism of the second respondent’s award. Some of the submissions he was making appeared at the time of argument to raise the possibility that the second respondent’s award might well be such as to justify being set aside. However, after considering the matter and going through once again the applicant’s founding affidavit to determine what case the respondents (including the second respondent) had been called upon to answer in this review, it transpired that those submissions fell outside the ambit of the applicant’s case as foreshadowed in the founding affidavit. In those circumstances I have ignored those submissions which sought to advance a case for the applicant other than the case to be found in the applicant’s founding affidavit.

[15] In conclusion, the applicant’s application falls to be dismissed. It was agreed among all parties who were before me (this excludes only the first respondent because it did not oppose the application) that costs should follow the result. Accordingly I propose making a costs order on that basis.

In the premises the application is dismissed and the applicant is ordered to pay the second, third and fourth respondents’ costs.

R. M. M. ZONDO

Judge : Labour Court of SA

Date of Argument : 25 September 1998

Date of Judgement : 28 October 1998

For the Applicant : Mr A. G. Heyns

Instructed by : Snyman Van der Heever Heyns, JHB

For the First Respondent : No Appearance

For the Second Respondent : Mr Paul Jammy

Instructed by : Michael Bernstein

For the Third and Fourth

Respondents : Mr Wilke

Instructed by : Geyser de Kock & Partners, Brakpan

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