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[2018] ZAGPJHC 510
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South Africa State Threatre v Commission for Conciliation Mediation and Arbitration and Others (JR2607/16) [2018] ZAGPJHC 510 (20 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 2607/16
In
the matter between:
SOUTH
AFRICA STATE
THEATRE
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
ADVOCATE
GA JANSEN VAN VUURES
N.O
Second
Respondent
LINDELWA
GLOARIA
MAHLABE
Third
Respondent
Heard:
12 September 2018
Delivered:
20 September 2018
Summary:
Review application –
award
is unassailable – no reason to interfere with the amount of
compensation.
JUDGMENT
NKUTHA-NKONTWANA.
J
Introduction
[1]
This is one of the unmeritorious review applications. The applicant
(State Theatre) seeks an order to review and set aside the
arbitration award of the second respondent (the commissioner) issued
under case number GATW6553-16 dated 28 October 2018. The commissioner
found the dismissal of the third respondent (Ms Mahlabe) both
procedurally and substantively unfair and awarded her compensation
equivalent to 12 months’ salary.
[2]
The State Theatre filed supplementary heads of argument wherein, it
persisted that the commissioner committed a reviewable irregularity.
It is submitted, in the alternative, that in the event the Court
finds that the dismissal of Ms Mahlabe was unfair, compensation
equivalent to three months’ salary is fair in the circumstances
of this case.
[3]
The application is ardently opposed by Ms Mahlabe.
[4]
The essence of the State Theatre’s challenge is that the
commissioner erred in finding that there was no settlement agreement
concluded between the parties. In finding so, the commissioner
neglected to have regard to the verbal settlement agreement between
the parties; that the terms thereof were to the benefit of Ms
Mahlabe; and that Ms Mahlabe changed her mind when the settlement
agreement was presented to her.
Background
[5]
The facts in this matter are to a great extent common cause. Ms
Mahlabe had been in the employ of the State Theatre since 18
August
2008. Her contract of employment was terminated on 8 April 2016 and
she was a Marketing Manager.
[6]
Ms Mahlabe was confronted by State Theatre with rumours that she was
no longer content with her employment and wanted to leave.
In fact,
during the arbitration it was Ms Mapayi, the Human Resources Manager,
testified that Mr Jay, the Producer, requested her
to facilitate
discussions with Ms Mahlabe. There were then several meetings with Ms
Mapayi, consequently. As a result, an option
of mutual separation was
explored. The draft settlement agreement was presented but she
refused to sign as she wanted to seek legal
advice.
[7]
Ms Mahlebe’s attorneys of record corresponded with the State
Theatre seeking clarity on the terms of the draft settlement
agreement and challenged the processes that had been followed at that
stage. Unfortunately, there was no answer from the State
Theatre.
Nonetheless, Ms Mapayi conceded in cross examination that Ms Mahlabe
did indicate to her that she was no longer interested
in the proposed
mutual termination of her contract of employment and that the matter
should be dealt with through her attorneys
of record.
[8]
The State Theatre went ahead and terminated Ms Mahlabe’s
contract of employment. In its opening address during the
arbitration,
it was submitted that Ms Mahlabe’s employment was
terminated in terms of the contract of employment which allows each
party
to do so on notice. It is instructive that Ms Mapayi conceded
that the draft settlement agreement was just a mere offer by the
State Theatre which was never accepted by Ms Mahlabe.
Evaluation
[9]
The commissioner was spot on in his finding that there was no
agreement, either verbally or in writing to terminate Ms Mahlabe’s
contract of employment on mutual basis. Even if the State Theatre was
operating under the impression that Ms Mahlabe had verbally
agreed to
the terms of the draft settlement agreement, that impression ought to
have been easily dispelled by the correspondence
from her attorneys’
of record. The applicant’s counsel was all over the transcribed
record, splitting hairs in an attempt
to find something that could
hold without any success.
[10]
In the
absence of an agreement terminating Ms Mahlabe’s contract of
employment on mutual basis or evidence to justify that
her dismissal
was effected in accordance with section 188(1) of the Labour
Relations Act
[1]
(LRA), the
commissioner’s finding that Ms Mahlabe’s dismissal was
procedurally and substantively unfair is unassailable.
[11]
That takes
me to the issue of relief. We must be reminded of the principles
expressed in
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert,
[2]
endorsing the guideline in determining what is just and equitable
compensation that can be awarded under section 194(3) of the
LRA laid
down in
Minister
of Justice and Constitutional Development v Tshishonga.
[3]
The Labour Appeal Court (LAC), as per Judge President Waglay, stated
the following:
‘
Compensatory
relief in terms of the LRA is not strictly speaking a payment for the
loss of a job or the unfair labour practice but
in fact a monetary
relief for the injured feeling and humiliation that the employee
suffered at the hands of the employer. Put,
differently, it is a
payment for the impairment of the employee’s dignity. This
monetary relief is referred to as a
solatium
and it
constitutes a solace to provide satisfaction to an employee whose
constitutionally protected right to fair labour practice
has been
violated. The
solatium
must be seen as a monetary offering or
pacifier to satisfy the hurt feeling of the employee while at the
same time penalising the
employer. It is not however a token amount
hence the need for it to be “just and equitable” and to
this end salary
is used as one of the tools to determine what is
“just and equitable”.
…
In
Minister of
Justice and Constitutional Development v Tshishonga (Tshishonga)
,
this Court in an award of
solatium
referred to the delictual
claim made under the
actio iniuriarum
for guidance in what
would constitute just and equitable compensation for non-patrimonial
loss in the context of an unfair labour
practice. It stated that
since compensation serves to rectify an attack on one’s
dignity, the relevant factors in determining
the quantum of
compensation in these cases included but were not limited to:
‘…
the nature
and seriousness of the
iniuria
, the circumstances in which the
infringement took place, the behaviour of the defendant (especially
whether the motive was honourable
or malicious), the extent of the
plaintiff's humiliation or distress, the abuse of the relationship
between the parties, and the
attitude of the defendant after the
iniuria
had taken place…’ (footnotes omitted)
[12]
In this instance, it is clear that the
commissioner had had regard to,
inter
alia
, the circumstances surrounding Ms
Mahlabe’s dismissal of which he termed ‘ruthless and
brutal’. In my view, compensation
equivalent 12 months’
salary is appropriate given the fact that it is for both procedural
and substantive unfairness.
[13]
Ultimately,
it seems that the applicant is oblivious of the review test as
succinctly expounded by the LAC in
Head
of the Department of Education v Mofokeng
,
[4]
where it was,
inter
alia
,
stated:
‘
[30] The failure
by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually
be an
irregularity. However, … this court in
Gold Fields
…
held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in the setting aside of the award. It
must in addition reveal a misconception of the true enquiry
or result
in an unreasonable outcome…’
[14]
I am convinced that the commissioner aptly construed the applicable
test and consequently rendered a reasonable award.
Conclusion
[15]
In all the circumstances,
the
commissioner’s findings cannot be assailed and as such the
application stands to be dismissed.
[16]
When it comes to costs, it is trite that costs in this Court do not
follow the result. However, this is a typical case where
costs must
be granted. The State Theatre was misguided in launching the review
application as it is patently unmeritorious.
[17]
In the premises, I make the following order:
Order
1. The application for
review is dismissed.
2. The State Theatre is
ordered to pay the costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate K.A Wilson
Instructed
by:
Motalane Kgaria Inc
For
the first respondent:
Advocate G Mashigo
Instructed
by:
Motanya Madiba Attorneys
[1]
Act 66 of 1995 as amended.
[2]
[2015]
11 BLLR 1081
;
(2015) 36
ILJ
2989 (LAC) paras 22 to 24.
[3]
[
2009]
9 BLLR 862
(LAC) at para 18.
[4]
Mofokeng
[2015] 1 BLLR 50
(LAC) at paras 30 to 33; see also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[
2013] ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC);
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA).