Soni v Commission for Conciliation, Mediation And Arbitration and Others (JR1843/13) [2014] ZALCJHB 519 (3 December 2014)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO: JR1843/13

DATE: 03 DECEMBER 2014

In the matter between

PUNIT SONI..................................................................................................Applicant

And

COMMISSION FOR CONCILIATION, MEDIATION AND

ARBITRATION................................................................................First Respondent

OLOTA LUYANDA N.O..............................................................Second Respondent

IMPALA PLATINUM LIMITED..................................................Third Respondent

EX TEMPORE JUDGMENT

STEENKAMP, J:

This is an application to have a jurisdictional ruling by Commissioner Luyanda Olota reviewed and set aside. In that ruling, the Arbitrator was required to decide whether the applicant, Mr Soni, was an employee or an independent contractor. The Arbitrator came to the conclusion that he was an independent contractor, and therefore that the CCMA did not have jurisdiction to hear the matter.

In their Heads of Argument, both parties referred to the review test as set out in Herholdt[1] and Sidumo[2]. However, that is not the test that applies in the review of a jurisdictional ruling such as this. The test that applies is that set out in SARPA v SA Rugby[3], id est simply whether the Commissioner was right or wrong in making the jurisdictional ruling and deciding that the applicant was not an employee.

In considering that question, the Commissioner correctly set out what he was required to decide. The Commissioner took into account that the parties entered into an independent consultant agreement. He took into account that the applicant provided services to the respondent, not as an employee, but operating as a sole proprietor under a vendor number and submitting invoices for services rendered. She also took into account that the applicant was excluded from normal business meetings and that he raised VAT on the invoices that he provided. And the Arbitrator then analysed the definition of ‘employee’ in section 213 of the LRA, that is:

“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 any other person who in any manner assists in carrying on or conducting the business of the employer.”

The Commissioner then took into account relevant case law of this Court and the Labour Appeal Court and analysed the evidence before her in the light of the dominant impression test. After having analysed the evidence carefully, the Commissioner came to the conclusion that the dominant impression raised by that evidence was that the applicant was not an employee but an independent contractor. That conclusion, on the evidence that was led before the Arbitrator, is in my view not only reasonable, but correct. It is certainly not open to review.

With regard to costs, the Court takes into account that Mr Soni is not legally represented. He explained that his Heads of Argument were drafted by an attorney but that was done on a pro bono basis. Mr Masher, to his credit, did not pursue the plea for costs. In law and fairness, I will not make an adverse cost order.

The application for review is dismissed.

STEENKAMP J

APPEARANCES

APPLICANT: In person

RESPONDENT: D Masher of Edward Nathan Sonnenbergs

[1] Herholdt v Nedbank Ltd [2013] 11 BLLR 1074 (SCA).

[2] Sidumo v Rustenburg Platinum Mines Ltd (2007) 28 ILJ 2405 (CC).

[3] [2008] ZALAC 3; [2008] 9 BLLR 845 (LAC).