What happens when an employer repeatedly evades personal service, leaving an employee high and dry, unable to ensure the implementation of a valid court order? It’s a problem that’s easier to deal with when the dispute isn’t a labour matter — the rules of the labour court are different from those of the high court and seem only to allow legal personal service.
Personal service refers to the in-person delivery of a “contempt order” to a “defendant employer”.
One labour dispute, recently back in the labour court, shows the problems that managers can cause by repeatedly refusing to accept personal service. But despite its frustration for the employee, the case holds the hope that the labour court could consider an alternative approach. And then management “evaders” could find there’s no place to hide.
It’s not difficult to imagine, and even sympathise with, the problem in this case. An employee, named only as Mr N Nhlengethwa, was dismissed by the company where he worked, Parsons Transport Operations, but he disputed his dismissal.
The two sides had talks and, on 26 November 2019, they reached a settlement agreement. Under that deal, the employee would return to work on 2 December 2019 and the issue of his accumulated backpay would be dealt with separately.
Now, exactly five years later, absolutely nothing has happened. No re-hiring, no backpay. Nothing. Nhlengethwa, who was supposed to have been re-employed five years ago, has not been given the backpay that is his due and he has missed out on five years’ worth of salary.
The matter has come to court on no fewer than 12 occasions. But it can never be finally resolved, primarily because the company director, Alwyn Parsons, has repeatedly evaded personal service and, without personal service, nothing conclusive can be done to take matters further in court.
In its latest judgment on Nhlengethwa’s problem, the labour court says that the goal of the main labour legislation in South Africa is to provide an effective, efficient way of resolving disputes. And its ability to achieve that aim is based on the court’s ability to make sure that its orders are given effect to.
But the main difficulty in doing this, is the constant need for employees to have employers placed in contempt of court. In fact, most of the unopposed roll in the labour court is taken up with applications to do just that.
The judge writes about what he sees as the “basic problem” in disputes like this — contempt applications in labour cases (to force management to implement court orders) require that the documentation must be served personally on the employer. The rules of the labour court and its judgments make this clear.
But doing so is “often difficult to effect and easy to evade”.
“The result is that, time after time, employees return to this court trying to enforce an order in their favour,” the court says.Each time the complicated dance must begin again “in the vain hope that they will be able to effect personal service the next time round”.
This case, against Parsons, “is an acute illustration of the problem”, says the judge.
What’s the problem, he asks. “Why could personal service not be effected, year after year?”
The court file has a number of affidavits in support of proof of service and returns of service by the sheriff, but each time this was not served personally on Parsons, who was said not to be available.
Now, the union argues that their latest proof of service affidavit should be regarded as showing that service was effected on Parsons. Adding to the problem is that each time the sheriff tries to serve on Parsons, the sheriff must be paid, by the union, regardless of whether Parsons agrees to accept service or not.
For its part, the company, via its industrial relations official Hendrik Bosch, says there has been “no service” on Parsons and that there has thus been no service of the contempt application against him.
Bosch adds, in his affidavit, that Nhlengethwa “did not wish to be re-employed, and wanted his backpay before taking up employment, but that backpay had not been agreed to”. This, the judge points out, is “vehemently denied” in the replying affidavit.
As to the availability of Parsons in this debacle, all that the company did was to hand up a boarding pass indicating that he was out of the country at the time of the most recent hearing.
The labour court’s rules explain the process of making a contempt application against someone. Though they might ultimately be found in contempt, and perhaps even jailed or fined, the relevant documents must first be served “personally” on the relevant person.
And on this question, said the judge, he had not been able to find any previous decision where the court was prepared to relax the requirement of personal service when it came to contempt proceedings.
It’s a different story when a dispute is heard by the high court, as opposed to the labour court. In that court, a litigant who hasn’t been able to serve papers personally on the other party can be granted permission for “substituted service”.
As its name suggests, this would allow someone to show that it isn’t possible to obtain the usual personal service and that there’s a good likelihood that an alternative form of service will come to the knowledge of the other party.
If the court agrees, then service can be via registered letter or by email, for example.
The problem in the Parsons case had not previously arisen in such stark terms before the labour court and so the judge asked the two sides to put up an argument on whether substituted service would be possible in this case, using Parsons’ email address as published on the company’s website.
For some unknown reason, however, the union didn’t file its submissions on the issue. The management side had plenty to say, however. It submitted that there were no provisions for substituted service in the case of a labour court contempt application and that it would be unconstitutional to secure a contempt order by any means other than personal service.
Further, while the high court rules formally created the possibility of substituted service, there was nothing in the labour court rules that allowed for it.
Finally, there would have to be a “substantive application” for substituted service. This had not been made by the union, and without a formal application, the court couldn’t make such an order off its own bat, so to speak.
The judge said the first three submissions didn’t persuade him. But there was merit in the last argument. If the union had filed arguments as requested, he might have been able to consider some form of substituted service. But, without the relevant submissions by the union, his hands were tied and he could do nothing — at least not in that hearing.
However, he decided to allow the union to bring an application for leave to effect substituted service on Parsons and it would then be up to the court that ultimately heard that application to decide what to do.
His final sentences show that he really understands the frustration that the union, and its member Nhlengethwa, must be feeling about this prolonged game of hide-and-seek. He noted that his order, allowing the union to come back to court with an application for leave to make a substituted service on Parsons, would surely be “cold comfort for the union and the employee who have fought tirelessly for years to enforce a settlement agreement that was made an order of this court, and are now faced with the prospect of having to bring a further and different application simply to get their contempt application heard”.
“But this,” he concludes, “is the product of Mr Parsons being, on the facts before me, a serial evader of personal service.”
This case highlights the fact that unions without labour litigation experts sometimes struggle to get around the most basic legal obstacles. Unions are often serviced only by their office bearers, who generally are not trained lawyers. There are, of course, unions of which this is not true but the numbers suggest that they are a minority.
Employer organisations, on the other hand, have scores of lawyers working with, and for, them. Why should this not be the case for unions which also operate on the basis of monthly contributions?
At the end of the day, being effective is the only yardstick that employees in the position of Mr Nhlengethwa care about. The reach of the labour court will hopefully catch up with Mr Parsons and he will get his just deserts.
The union, however, could do more to brief attorneys to get better and more effective results. Perhaps, in labour matters, allowing unions to brief members of the Bar directly would help but the unions’ reluctance to spend money on lawyers is short-sighted and requires reconsideration.
Richard Brown is a director and the employment and labour attorney at Herold Gie Attorneys.
