With the recent publicity surrounding labour brokers it was inevitable that the Labour Court (the Court) would find an opportunity to pronounce on the issue and the apparent unfairness surrounding the termination of the labour broker's employees as a result of the conduct of the client.

The Court's opportunity arose in the case of Nape V Intcs Corporate Solutions (Pty) Ltd, Case Jr617/07. Acting Judge Boda, in his first written judgement, may have set the cat amongst the pigeons.

The judgment was not concerned with the constitutionality of the labour broking arrangement or the fact that section 198 of the Labour Relations Act 66 of 1995 (LRA) takes away the right of the employee to sue the Labour broker directly in unfair dismissal claims. Rather the judgment was concerned with the right of the labour broker to rely on section 189 of the LRA to justify the termination of the employment relationship after the client, for unfair reasons, insisted that the employee be removed from its premises.

After the Applicant committed an act of misconduct (he sent an email containing offensive material at the client's premises to one individual), the client, Nissan (Pty) Ltd, invoking its contractual rights, demanded that the Respondent, its Labour Broker, remove the Applicant from Nissan's premises. The Respondent, as the Applicant's employer, suspended the Applicant and after a disciplinary hearing, determined that a final written warning instead of dismissal was an appropriate sanction.

The Applicant agreed to the written warning but Nissan was not satisfied and refused to allow the Applicant access to its premises. The Respondent was obliged, in terms of its contractual relationship with Nissan, which provided that Nissan had the right to request the removal of the employee from its premises for any reason whatsoever, to accede to Nissan's demands and accordingly invoked the provisions of section 189(a) of the LRA and after a consultation meeting with the Applicant, found no alternative position and retrenched him.

The Court held that such an agreement, which provides the client with the power to remove the employee from its premises for any reason whatsoever, is against public policy and an unlawful breach of the employee's right to fair labour practices in terms of the LRA.

It held further that the Labour Broker was not powerless. It could resists the client's unlawful demand by undertaking the following-

1 The Labour Broker is entitled to approach a Court of law to compel the client not to insist upon the removal of an employee where no fair grounds exist for that employee to be removed.

2 The Labour Broker is also entitled to resist any attempt by the client to enforce a contractual provision which is against public policy.

3 If a Court were to reinstate an employee into the employ of the Labour Broker, the Labour Broker may enforce such an Order against the client to give effect to the employee's rights to fair labour practices.

4 The Labour Broker could in such a case approach either the High Court or the Labour Court for appropriate relief.

The Judgement is refreshing in one respect; namely; while it identifies the problem it seeks to offer guidance to the parties as to how to resolve the dilemma they may find themselves in as a result of the judgment. It is however important to note that the guidance offered by the court is not binding on other courts or the CCMA. This is so as it was not necessary for the court to express these views. They were not necessary in order to determine the main dispute.

The judgment does not give the employee the right to sue the client of the Labour broker directly because for that to happen the constitutionality of section 198 of the LRA, which denies that right to an employee in unfair dismissal cases, would have to be attacked. The judgment, however, empowers a labour broker to resist an arbitrary demand by the client for the employee's.

Written by: Aadil Patel, Director and National Practice Head: Employment, Cliffe Dekker Hofmeyr