THE LABOUR COURT OF SOUTH AFRICA,

HELD AT CAPE TOWN

Not reportable

CASE NO: C535/2020 & JS 220/2020

In the matter between:

MATHYS JOHANNES COETZEE                                                                         Applicant

and

ENVIRO BIO-CHEM (PTY) LTD                                                                         Respondent

Date of Judgment: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 12h00 on 8 June 2021.

JUDGEMENT ON SPECIAL PLEA IN LAW

LAGRANGE, J

[1]   The matter was enrolled for trial on 7 June 2021. As a result of a special plea raised recently by the respondent it has become necessary to determine whether a purported agreement between Africacom Commodities (Pty) Ltd and the applicant (the April 2015 agreement) was a valid contract of employment governing his employment relationship with the respondent at the time of his dismissal. Related to the agreement was whether this court would have jurisdiction to hear his claim of automatically unfair dismissal in the event it was the contract governing his employment relationship.

[2]   In order to determine the applicability and validity of the April 2015 agreement evidence was due to be led by the respondent but owing to its witness having tested positive for Covid 19 on 7 June 2021, the matter could not proceed. Nonetheless, it was agreed that the jurisdictional question arising in the special plea could be determined.

[3]   Having heard argument from both parties I am satisfied that it is not an implied term of the April 2015 agreement that the applicant had a contractual right not to be automatically unfairly dismissed or otherwise unfairly dismissed. (See SA Maritime Safety Authority v McKenzie 2010 (3) SA 601 (SCA); (2010) 31 ILJ 529 (SCA) at para [56].) Although it was argued by the respondent that the latter case is distinguishable from the present one, the existence of an arbitration provision in this matter does not alter the fundamental premise on which the special plea in the law is based, namely an implied right not to be unfairly dismissed. An additional ground raised, though not pleaded, was that the right to refer a dispute over an automatically unfair dismissal would have to be referred to arbitration because the April 2015 agreement incorporated the Labour Relations Act, 66 of 1995 and the Employment Equity Act 55 of 1998 by reference thereto. However, this alternative argument is not supported by the text of the document.

[4]   Consequently, I am satisfied that if the April 2015 agreement is valid and applicable it is not a bar to this court determining the applicant’s claim of automatically unfair dismissal.

[5]   On the issue of costs, the applicant conceded that owing to the unforeseen circumstance which prevented the respondent from leading evidence on the validity and applicability of the purported contract, it would not be appropriate to award costs for the postponement. In relation to the costs of the argument today, while I am inclined to make such an order in favour of the applicant, since the argument today related to one leg of the special plea, I consider it better to defer the determination of costs of today’s proceedings.

IT IS ORDERED THAT:

1.    The trial is postponed sine die to date to be arranged with the registrar at the earliest convenience of the parties and the court.

2.    The Respondent’s special plea that this court does not have jurisdiction to entertain the Applicant’s claim of automatically unfair dismissal because such a dispute should have been referred to arbitration under the April 2015, insofar as that agreement might be valid and applicable, is dismissed.

3.    Costs of today’s proceedings shall stand over for determination at a later date.

4.    The determination of the validity and applicability of the April 2015 agreement is deferred until the trial proceedings resume. Should the parties agree in writing that this issue can be determined separately from the proceedings on the main merits, they may approach the court to make arrangements in that regard.

5.    Arising from the amended statement of defence, the parties must file an amended pre-trial minute 10 days prior to the commencement of further proceedings in this matter.

6.    The parties must exchange of witness statements at least 10 days before the re-commencement of any proceedings.

Lagrange J

Judge of the Labour Court of South Africa

Representatives

For the Applicant L Erasmus instructed by Mr J Du Randt of Du Rand Du Toit Pelser attorneys

For the First Respondent RA Arcangeli instructed by Mr G Van Wyk of Gerrit Coetzee Attorneys