Labour law v the law of contract and the Constitution as amicus curiae?

June 1st, 2018
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Universal Church of the Kingdom of God v Myeni and Others (2015) 36 ILJ 2832 (LAC)

By Romano Ismail

The Universal Church of the Kingdom of God (the appellant), appointed Mr Myeni (the third respondent) as a pastor. Consequently, the third respondent signed two documents titled ‘Regulations for Pastors’, and the ‘Declaration of Voluntary Service’. While executing his duties for some time, Mr Myeni, was subsequently terminated for alleged misconduct. He approached the Commission for Conciliation, Mediation and Arbitration (CCMA), claiming that he was dismissed unfairly.

The appellant, averred in rebuttal, that the documents explicitly stated, inter alia, that Mr Myeni, ‘is not an employee of the church but renders his voluntary service according to his Christian convictions,’ and thus, was not an employee, as defined by the Labour Relations Act 66 of 1995 (LRA). The third respondent, in casu, claimed, inter alia, that he was paid a stipend by the church in the sum of R 1 875 per week, of which both the Unemployment Insurance Fund, and Pay-As-You-Earn deductions, were made from this stipend, which should be inferred, by way of operation, as being that of an employee.

After determining the jurisdictional issue of the CCMA, in favour of Mr
Myeni, the Labour Court (LC), on review, upheld the commissioner’s finding, in that Mr Myeni was indeed an employee of the church, on the basis of the fact that the church failed to rebut the s 200A presumptions of the LRA. The case was subsequently, taken on appeal, with leave of the court a quo. The Labour Appeal Court (LAC), overturned the ruling, and upheld the appeal in favour of the appellant, on the merit that the interpretation of the rebuttal presumptions of s 200A of the LRA, were not applicable, as there was no contractual arrangement in place. In addition, the LAC, held that the CCMA had no jurisdiction on the matter, and provisions of the LRA (s 200A), did not accordingly, apply.

Does an employer-and-employee relationship exist, when based on the substance or true intention, rather than ‘form’ of a contract?

Discussion

The existence of an employment relationship is the starting point in determining whether protection can be afforded by the LRA (W Germishuys ‘Religion above the law? Universal Church of the Kingdom of God v Myeni and Others’ 2016 SA Merc LJ 360). In this regard, s 23(1) of the Constitution states that: ‘Everyone has the right to fair labour practices’. Section 186(1) of the LRA, states that every ‘employee’ has the right not to be unfairly dismissed. The LRA in s 213 defines an ‘employee’ as –

‘(a) any person, excluding an independent contractor, who works for another person or for the State and who receives, or is entitled to receive, any remuneration; and

(b) any other person who in any manner assists in carrying on, or conducting the business of an employer.’

Furthermore, the interpretation of the phrase ‘regardless of the form of the contract’ as contained in s 200A of the LRA, has broadened the scope in order to enhance inclusion, under the term ‘employee’ as envisaged in the Act. I submit that the two documents signed, namely, the ‘Regulations of Pastors’, and the ‘Declaration of Voluntary Service’ between the appellant, and third respondent, is indeed a form of contract. Thus the statutory presumptions of s 200A, should apply, forming part of the preferred generous and purposive interpretation (M McGregor and A Dekker (eds) Labour Law Rules! 3ed (Cape Town: Siber Ink 2017) at 25). In this regard, without individually applying the tests developed by the courts, in determining who is an employee – such as, the control, organisational, dominant impression, economic capacity, and reality test – the codification of the tests, have culminated in the enacting of the statutory presumptions of s 200A of the LRA. As thus, based on the merits of the case, it is necessary to determine which of the presumptions hold true, until the contrary is proved. The s 200A (a) – (e) presumptions of the LRA, include, inter alia

‘(a) the manner in which the person works is subject to control or direction of another person;

(b) the person’s hours of work are subject to the control or direction of another person;

(c) in the case of a person who works for an organisation, the person forms part of that organisation;

(d) the person has worked for that other person for an average of at least 40 hours per month over the last three months; [and]

(e) the person is economically dependent on the other person, for whom he or she works or renders services.’

Consequently, in casu, the CCMA, and court a quo, it was submitted that, the third respondent at para 20:

  • executed his work, subject to the control, or direction of the church;
  • work hours were subject to the control, or direction of the church;
  • worked at least 40 hours per month; and
  • was economically dependent on the church and earned no other income.

Although the existing facts in dispute, satisfies one or more of the factors in s 200A, it is trite that it does not automatically mean that the person is in fact, an employee (Code of Good Practice: Who is an employee Item 17). The substance of the employment relationship, opposed to the legal form, is determinative of the rights and remedies that ensue (Germishuys (op cit)). This determination, is thus made on a case-by-case basis. The reverse onus is thus placed on the church to prove that the third respondent was not an employee. From the onset, albeit the fact that Ndlovu JA at para 46, in casu, determined that the church ‘never intended to enter into any contract whatsoever’. I submit that such finding relates only to an employer/employee contract or relationship, as there was indeed a notion of a contractual agreement (see para 45), which was brought about, though intended – on the basis of voluntary services – to be outside the ambit of the LRA. I thus submit, that the clause within the contract (‘Declaration of Voluntary Service’ at clause 2) be treated strictly, in terms of contract law. As a result, the aim of the interpretation of a contract is to give to the intentions of the parties, or the purpose of the contract (D Hutchison and C Pretorius (eds) The Law of Contract in South Africa 3ed (Cape Town: Oxford University Press 2017) at 267). Interpretation in this manner, is based on the common intentions of the parties, and is thus not based on subjective, but rather objective intentions (Hutchison and Pretorius (op cit) at 269). To this end, the LC, questioned the third respondent, upon which, by the commissioner’s own admission, stated at para 19 that, ‘Mr Myeni did not render his service to the church, as envisaged in terms of s 200A of the LRA, but he was doing the work of God’. This satisfies the parol evidence rule (discussed in Hutchinson and Pretorius (op cit) at 271) as Mr Myeni testified in support of the averment above (see para 45 where the following exchange appeared under cross-examination: ‘Do you understand … that you are not an employee and you receive a subsistence allowance to keep you do [sic] your job working for God? [Mr Myeni:] … Yes’). Furthermore, at para 19 the commissioner failed to take into account the true intention of the parties, in terms of the contract entered thereto. Although the constitutional right to fair labour practices, is afforded to ‘everyone’, no right is absolute, similarly as the rights envisaged, inter alia, in s 28 or s 35 of the Constitution – known as the children’s clause, and the clause relating to arrested, detained, and accused persons, respectfully – apply only to the said class of persons. The documentary clauses that established contractual obligation between the appellant, and third respondent, are not found to be contrary to any public policy, or provision of the Constitution. It is however, noteworthy, that the procedure of the church, or lack thereof, in relation to the finding of the alleged misconduct, do not conform to the audi alteram partem rule – meaning ‘to hear the other side’ – and thus, in this instance only, seems prima facie, to violate the third respondent’s right to administrative justice, as envisaged in the Bill of Rights (s 33(1) and (2) of the Constitution).

Conclusion

Albeit the fact that Ndlovu JA (Waglay JP, and Davis JA concurring) held at para 57, the view that: ‘The CCMA does not have the requisite jurisdiction to entertain this dispute, by virtue of the absence of employer and employee relationship between the parties’, is, I submit supported, but with the following caveat. Interpretation of the phrase ‘regardless of the form of the contract’ as contained in s 200A of the LRA, has broadened the scope in order to enhance inclusion, under the term ‘employee’. The CCMA, as envisaged within the legislative framework of the LRA, provides for juristic competence on such matters. Furthermore, persons outside the ambit of the LRA, should be given a means of protection, in order to advance their constitutional right to fair labour practices, as afforded to ‘everyone’, which in addition, should form part of the preferred generous, and purposive interpretation (McGregor and Dekker (op cit)) at 25). It is further trite in law that the court thus, has a duty to ascribe the meaning to legislative text, that best promotes at least one identifiable value enshrined in the Bill of Rights (WB Le Roux, I Moodley and IL Nkuna Interpretation of Statutes (Pretoria: Unisa Press 2009) at 41) with the objective of developing the common, and customary law to promote the spirit, and purport of the Bill of Rights (see s 39(2) of the Constitution). Consequently, the purposive approach identifies that the judiciary has an inherent law making function during statutory interpretation (C Botha Statutory Interpretation: An Introduction for Students (Cape Town: Juta 2014) at 99). Although it was correctly held that the ‘requisite’ jurisdiction of the CCMA was found to be absent, I submit that this determination, was established both, ex post facto, and on the facta probanda. I thus, am of the view that the CCMA, does have a prerequisite jurisdiction, at the very least, as an independent juristic body (in terms of s 112, of the LRA) of first instance. It is only at a later stage, that jurisdiction may become determinative, based on the facts in dispute.

Had the s 200A presumptions applied – I further submit that the appellant, would have dislodged the s 200A presumptions of the LRA to the court’s satisfaction, on the bases of the provisions of the two documents signed, and testimony of Mr Myeni, that on the balance of probabilities, Mr Myeni, was not an employee of the church, and as thus, there existed no employer/employee relationship. The only relationship that came into existence, is one that gave rise to contractual obligation only, as thus, the principles relating to the law of contract, apply exclusively, against that of labour law. It is on this prong furthermore, that there was a meeting of the minds, and in addition, both parties where ad idem to the material aspects thereof. Consequently, the appeal was rightfully upheld, and the third respondent, Mr Myeni, to pay for the costs of review.

Romano Ismail is an LLB student in Pretoria.

This article was first published in De Rebus in 2018 (June) DR 36.

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