Shozi v Pecton Investments CC t/a Pecton Outsourcing Solutions (D935/15) [2016] ZALCD 14 [2017] 1 BLLR 54 (29 June 2016) per Whitcher J.

The labour court refused to uphold various preliminary objections raised by the labour broker.  205 applicants based their claim for wages on breach of contract by a labour broker who provided employees to Unilever.  Wages were reduced by the labour broker on the insistence of Uniliver.

A dispute was referred to the CCMA on 17 July 2013.  On 23 July 2013 Unilever ended its contract with the labour broker who then terminated the services of the 205 applicants.  The dismissal dispute was referred to the CCMA.  On review the labour court held that it should have been adjudicated.  An appeal to the LAC is pending.  The labour broker contended that the real dispute was an alleged unfair labour practice and that the labour court lacked jurisdiction.

But the pleaded claim falls within the jurisdiction of the labour court.  In other words the ‘once and for all rule’ did not apply in this instance.

Comment

See Shozi v Pecton Outsourcing Solutions CC [2014] 2 BALR 207 (CCMA) per B Pillemer.

Headnote:

Dismissal – Operational requirements – Labour broker dismissing employees after its only client refused them access to its premises after employees engaged in unprotected strike – Dismissal unfair because broker not complying with provisions of section 189 of LRA.

Dismissal – Proof of – Labour broker claiming that employees’ contracts expired “automatically” when only client terminated service contract – Employees dismissed because “limited duration” employment contracts conflicting with requirements of LRA.

Pecton Outsourcing Solutions CC v Pillemer NO (D1256/13) [2015] ZALCD 66; [2016] 2 BLLR 186; (2016) 37 ILJ 693 (LC) (12 November 2015) per Whitcher J.

Headnote:

Commission for Conciliation, Mediation and Arbitration – Jurisdiction – Commission lacking jurisdiction to determine dismissal for operational requirements involving large number of employees even where occurrence of dismissal was in dispute.

Contract of employment – Fixed term – Fixed-term contracts of three types: those set to terminate on arrival of particular date, those set to expire on completion of task and those set to expire on occurrence of event – Latter type of contract subject to abuse and invalid if relied on to evade fairly dismissing employees for reasons relating to conduct, capacity or to operational requirements.

Dismissal – By temporary employment service – TES relying on “automatic termination” provisions in employees’ contracts when client cancelled service agreement – Contract invalid because true reason for dismissal was operational requirements of TES.

Dismissal – Proof of – Termination by temporary employment service – TES relying on “automatic termination” provision in employees’ contracts to terminate their services when client cancelled service agreement – Termination in this context constituting dismissal because contract deprived employees of right not to be unfairly dismissed.

Excerpts

[16] In this case, the applicants admit commencing legal action in respect of the reduction of their wages in the CCMA as a matter of mutual interest.  This ended up as a concerted refusal to work in which they pressed for the unilateral variation of the wages to be reversed.  This unfortunately ended up in their dismissal.

[17] Not to add to the uncertainty I have identified above, it is tempting to seek refuge in the highest-ranking case on the matter, Chirwa.  It is not only rank but, with respect, a fine appreciation of public policy that distinguishes Chirwa above Makhanya on the issue at hand.  In my opinion, it should be impermissible for a party to initiate a process in the CCMA alleging one cause of action and halfway through that process, allege another cause of action and initiate proceedings in the Labour Court.  Why should the applicants not be held to their initial cause of action?

[18] But for the fact that the applicants were dismissed in the midst of their mutual interest dispute, I would have found that their changing tack is impermissible.  However, a countervailing policy issue arises in cases where a dismissal interrupted the pursuit of a matter of mutual interest.  The case at hand presents us with the one exception where allowing a party to reframe their cause of action mid-steam would be in the interests of fairness.  This is because one cannot meaningfully engage in industrial power-play if already dismissed.

[19] Whereas a party seeking two different forums to adjudicate a factually identical case should, for policy reasons, be prevented from doing so, this case is different.

Strictly in the circumstances of this case, I find that it was permissible for a party seeking to resolve a dispute ultimately by means of power, to change tack and seek adjudication of this dispute when the option of persisting with a mutual interest dispute disappeared.

This exception is necessary to prevent dismissal being used cynically to avoid dealing with demands to reverse a unilateral variation of terms and conditions, especially when a TES is involved.

[20] In the circumstances then, I find that there is nothing barring the action proceeding against Petcon (sic), all its points in limine having no merit.