Ruselo v Sutherland Transport

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and P Coppin JA and Kubushi AJA
• Judgment Date: 18 January 2022
• Docket Number: PA3/20
• Hearing Date: 11 November 2021
• Court: Labour Appeal Court
• Citation: 2022 JDR 0103 (LAC)

Coppin JA:

[1]

This is an appeal against the order of the Labour Court (Lallie J), dismissing an application by the appellant to make into a court order an arbitration award, which had been granted in his favour by an arbitrator, acting under the

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auspices of the National Bargaining Council for the Road Freight and Logistics Industry(NBCRFLI) ("the bargaining council"), against "Sutherland Transport". Leave to appeal was granted on petition to this court.

[2]

In his application the appellant had sought an order in the following terms: "1. Directing that the arbitration award issued in the matter [of] Thembisile R Ruselo v Sutherland Transport dated 10 June 2016 under case number PERFBC 37810 be made an order of court in terms of section 158 (1)(c) of the Labour Relations Act; 2. Directing that the citation of the First Respondent shall be corrected in terms of Rule 22 of the Labour Court Rules [to]: THE TRUSTEES FOR THE TIME BEING N.O. OF THE SUTHERLAND EMPLOYMENT TRUST, alternatively, substituting the First Respondent with the Second Respondent's citation: THE TRUSTEES FOR THE TIME BEING OF THE SUTHERLAND EMPLOYMENT TRUST; and/or 3. Directing that, in terms of Rule 22 of the Labour Court Rules, the Third Respondent, David Stephanus Van Der Westhuizen N.O. a trustee of SUTHERLAND EMPLOYMENT TRUST, and the Fourth Respondent, Irene Marie Van Der Westhuizen, a trustee of SUTHERLAND EMPLOYMENT TRUST be joined as Third and Fourth Respondent herein, and/or that the First Respondent is to be substituted with their respective citations; 4. Directing that the Respondents who opposes the relief sought by the Applicant to be ordered to pay the costs of this application; 5. Granting the Applicant further and/or alternative relief."

[3]

The court a quo dismissed the application, which was opposed by the trustees (for the time being) of the Sutherland Employment Trust ("the trust"), effectively, on the basis that the appellant, according to the court a quo, did not cite the employer, that is the trust, in the Bargaining Council so that the trust, could have become a party to those proceedings, and be afforded an opportunity to oppose the appellant's claims in that forum. In that regard the court a quo, essentially, accepted and decided the application on the version proffered by the trustees of the trust, namely, that it did not participate in the proceedings in that forum.

[4]

The court a quo found, essentially, that even though the award was subsequently varied by the Bargaining Council to reflect the trust as the

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employer, the variation was ineffective, and that its joinder and that of its trustees could not succeed after the award had been made, nor could the application to make the award an order of court. According to the court a quo, since the award related to an entity "Sutherland Transport", which was non - existent, there were no legal grounds for making the award an order of court in the absence of a respondent against whom such an order could be enforced.

[5]

The issue for decision in this appeal is thus, ultimately and essentially, whether the relief sought by the appellant was competent, and whether he ought to have been granted alternative relief in order to render the award effective against the trustees (for the time being) of the Sutherland Employment Trust, in their capacity as such.

Common cause facts:

[6]

The following facts under this heading are either common cause or are not disputed.

[7]

The appellant was employed as a driver by an entity (the trust), when he was dismissed on 8 October 2015 for alleged misconduct following a disciplinary hearing.

[8]

The appellant referred an unfair dismissal dispute to the bargaining council in which he cited "Sutherland Transport" as the employer. All the necessary and relevant notices in the proceedings in that forum were served on the employer party, as cited, at 28 Kurland Road, Perserverance, Port Elizabeth (now Gqeberha), which is the (business) address shared by the trust and the trustees.

[9]

At no stage before or during those proceedings which culminated in the issue of the award did those appearing for and representing the employer party in that forum contend or allege that the true employer, namely, the trust was not before, or not properly before that forum.

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[10]

Following an unsuccessful conciliation the matter was referred to arbitration where the appellant represented himself and where the employer party, which still did not object to its citation as "Sutherland Transport", was represented by a Human Resources Administrator in its business, including that of the trust, namely, Mrs Marionette Marais ("Mrs Marais"). The appellant gave evidence and three witnesses were called to testify on behalf of the employer party, namely, Mr Deon Van der Merwe ("Mr Van der Merwe"), an attorney who was also linked to and involved in the human resources functions of the business, including that of the trust, and who also presided at the appellant's disciplinary hearing, Mr I Booysen, who worked for the employer party's business, including that of the trust, as a controller, and Mrs Celeste Van der Walt.

[11]

At the conclusion of the arbitration proceedings, in the written award dated 10 June 2016, the arbitrator who presided at the hearing, Mr LER Koorts, held as follows in favour of the appellant: "41. I find that the dismissal of the Applicant was unfair; 42. The Respondent, Sutherland Transport is ordered to reinstate the Applicant, Mr T.R. Ruselo in his previous position as driver at the same remuneration and terms and conditions of employment that presently prevails for the position of a driver. 43. The reinstatement is made retrospectively from 1 February 2016. The Applicant must report for duty on Monday, 20 June 2016 at the normal starting time. 44. The Respondent must in addition pay the amount of R 37 200 – 20 to the Applicant within fourteen (14) days of the date of this award which is payment as a result of his reinstatement for the period of 1 February 2016 to 19 June 2016 (4.6 months calculated as follows: R8087 (basic salary) x 4.6 months = R 37 200 – 20)."

[12]

The appellant only got the award from the Bargaining Council on 21 June 2016 whereupon he reported for duty. The employer party refused to comply with the award. The appellant was told by Mrs Marais, the Human Resources Manager, who represented the employer party at the arbitration, that he was not welcome there; that he would not be reinstated and that the appellant should approach the Bargaining Council for further assistance since he saw fit to lodge a dispute with it.

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[13]

The appellant approached...