About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2007
>>
[2007] ZALAC 35
|
|
Comtech (Pty) Ltd v Molony N.O and Others (DA 12/05) [2007] ZALAC 35 (21 December 2007)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in Johannesburg
Case no: DA 12/05
In the matter between
Comtech (Pty) Ltd
............................................................................
Appellant
And
Commissioner Shaun Molony N.O
.........................................
1
st
Respondent
Commission for Conciliation
Mediation and Arbitration
.....................................................
2
nd
Respondent
Hodoul, JD
................................................................................
3
rd
Respondent
___________________________________________________________
JUDGMENT
___________________________________________________________
Zondo JP
[1] This is an appeal against a judgment of the Labour
Court in terms of which it dismissed an application by the appellant
to have
a certain arbitration award issued by the first respondent
reviewed and set aside. The arbitration award had been issued by the
first respondent as a commissioner of the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”), the
second respondent in this matter, in respect of a dispute between the
appellant and the third respondent about the fairness or
otherwise of
the dismissal of the third respondent by the appellant from its
employ.
[2] The first respondent’s arbitration award was
to the effect that the third respondent’s dismissal by the
appellant
for operational requirements was both substantively and
procedurally unfair and it ordered the appellant “
to
reinstate [the third respondent] on the same terms and conditions as
existed on the 3
rd
April and with effect
from that date.
” The award further ordered the appellant to
pay the third respondent a sum of R 22 500 “
on the date on
which she returns to work”
. Finally, the third respondent
was ordered “
to tender her services to the [appellant] on or
before the 4
th
August 2003
.”
[3] The appellant was aggrieved by the arbitration award
and brought an application in the Labour Court to have the award
reviewed
and set aside. As already stated, the Labour Court dismissed
the review application but subsequently granted the appellant leave
to appeal to this Court. This then is the appeal heard pursuant to
that order granting leave to appeal.
[4] In the founding affidavit filed on behalf of the
appellant in support of its application for review in the Labour
Court no facts
were set which relate to how the dispute between the
parties occurred. Under the heading “
Facts
”, the
deponent to the founding affidavit simply set out the date when the
arbitration award was issued, what happened thereafter
and his
submissions as to why the award should be reviewed and set aside. The
appellant did not say in his founding affidavit that
the
commissioner’s summary of the evidence led in the arbitration
proceedings was not accurate. It seems that there was an
attempt in
the heads of argument to raise some complaint in this regard, but, in
the light of the case which Counsel for the appellant
argued in this
Court, nothing turns on this.
[5] In his arbitration award the commissioner has
summarised the evidence led in the arbitration proceedings. As the
appellant has
not in its affidavits challenged that summary of the
evidence, I propose to rely on that summary. I do not consider it
necessary
to do another summary of that evidence. I propose to simply
quote the summary of that evidence as it appears in the arbitration
award from paragraph 7 thereof to paragraph 16. It reads thus:
“
[7] Ms J D Hodoul worked for
the Respondent from the 1 July 2001. While there was some argument
over the title of the position,
it became clear during evidence that
she was employed as the Depot Manager and was based at all material
times in the Durban branch.
On the 17
th
February 2003 the Applicant and all the employees in the Durban
branch, as well as those in the Cape Town and Johannesburg offices,
were informed via email from Mr Brian Edmonds that the Respondent and
Navcomm, a competitor of the Respondent, have “joined
forces”
i.e merged, and that Mr Mike Egling the owner/founder of Navcomm will
join the Respondent together with 4 other staff
members from the 1
March 2003. The email further advised that Egling would “take
over the running of the Comtech DBN [i.e.
Durban] branch”.
Various meetings then took place at while Egling and Hodoul were
present. The Applicant was then retrenched
from the 3
rd
April 2003 by Egling.
[8] A bundle of documents labelled 1 to 7 were tendered
by the parties. It was agreed that these documents are what they
purport
to be, but their contents were placed in dispute by Mr Bush.
[9] It is common cause that the onus is on the
Respondent to show that the dismissal of the Applicant was fair.
[10] Mr J Du Plessis stated under oath that he is the
general manager, operations. He stated that after the merger Egling
replaced
the manager of the Durban branch. Hodoul was considered for
the position, and was appointed as depot manager. After the merger
they needed someone who understood the industry and so Elging was
brought in a newly created position of regional manager. After
the
17
th
February he had two or three meetings with Hodoul who
asked him about the structure, during which she said was concerned
about
her position, and he told her that the company was reviewing
the structure of the 2 companies. The Exco, a committee which was a
combination of the directors and senior management, then decided that
the position of depot manager was no longer required, while
the
company needed some one who could drive the Durban area, which as a
result of the merger was second only to Johannesburg in
turnover and
customer base size – someone was needed to manage the entire
region. Du Plessis gave evidence concerning meetings
with the
Applicant one of which took place on the 26
th
Mrch 2003,
and his letter of the 27
th
March confirms what took place.
Du Plessis stated that Hodoul was informed that, as a result of the
acquisition of Novacomm the
Respondent had to review its structure in
Durban to “
best meet the Company’s future needs and
requirements
.” The Applicant was also informed that “
the
position of Depot Manager has become redundant in the new structure,
and this has resulted in Comtech having to institute a
redundancy
process in this position ….. you are requested to consider any
alternatives and recommendations with regards
to your future position
in Comtech and to table and discuss these with Management on Monday
31 March 2003. Management will likewise
investigate future
alternatives or possibilities
.” A further meeting took
placer on the 31
st
March 2003 [page 3], at which he was
not present. During this meeting the Applicant was offered the
position as stores controller;
there were no alternatives other than
this position. The minutes of this meeting were signed by Hodoul.
A
further meeting took place on the 2
nd
April 2003 at which
he was not present. According to the minutes [page 4] Hodoul was not
prepared to discuss alternatives to her
position as Depot Manager,
will not accept less, and is not prepared to take a cut in salary to
R3000, that she “wants the
matter sorted out today and does not
want to continue any further discussion.”
The Applicant was then retrenched on the 3
rd
April 2003 [page 6]. Du Plessis stated that Hodoul was paid notice
pay of one month and severance pay in terms of the company policy.
He
agreed that the company does not in fact have a policy, but that the
severance was paid in accordance with the provisions of
the
legislation i.e. one week for each year, and that there was no
attempt to reach consensus on the amount of severance pay. Hodoul
was
assisted as she was not required to server notice but was permitted
to leave immediately. Du Plessis stated that the meeting
on the 26
th
March was to consult with the Applicant as the decision to make her
job redundant had already been made. In response to my question
as to
how the structure of the Durban branch changed as a result of the
merger. Du Plessis stated that the resources of the two
were brought
into one. The human resources of Navcomm were two technical
employees, who were placed into the technical section
of the
Respondent, a sales rep, who went into the sales division, an
accountant who was moved into the accounts section,
and Egling.
The only restructuring necessary as result of the merger was that
Egling was made regional manager, and this meant that
the position of
depot manager fell away. He distinguished the function of the former
by saying Egling’s responsibility was
largely with the network
of clients, while the depot manager simply managed the branch –
took care of the administration,
stores and so on. As for the
alternative job offered to Hodoul he agreed that the salary of a
stores controller was 20% of the
salary of the depot manager, and
stated that any job is better than no job. He stated that Hodoul was
urged to come up alternatives
but failed to do so. He denied that she
suggested an administration manager position. He agreed that as he
was not present at the
meetings on 31
st
March and 2
nd
April 2003 his evidence as to what took place was hearsay.
[11] Mr Hinds then stated that, as a result of the last
point, he wished to call Mr Egling. Mr Bush objected as Mr Egling had
been
present during the evidence of Du Plessis. I ruled that Egling
could be called, and noted that I would note that he was present
during Du Plessis’s evidence.
[12] Mr Mike Egling stated that he is the regional
manager of Comtech. He was present at the meeting on the 31
st
March and 2
nd
April confirms that the minutes properly
reflect what took place during those meetings. The business was
restructured ‘from
the ground up to the top’, with
responsibility and accountability being place where they should be,
by which he meant that
the accounts section were responsible for
accounts, sales for sales and so on. He denied that it was not a
question of himself
or Hodoul – it was evident that there was
no work for the position of Depot manager after the office was
restructured. She
wandered around the office with nothing to do. He
agreed that he made the suggestion the Hodoul’s position was
redundant.
He denied that Hodoul said that she wanted to do the
admin.
[13] Egling stated that after the sales of his business
to Comtech it was agreed that he would be employed, and subsequently
that
he be appointed to the position of regional manager. The job of
Depot manager is a separate job entirely. Hodoul assumed the
functions
in the departments, and took authority for the performance
of the various sections. When this inefficiency was corrected by him
she no longer had a job. Some people were trained or retained,
processes were stream lined and redundant systems were changed.
He
brought this about, as a result it became clear that Hodoul no longer
performed a function in the structure.
[14] Mr Hinds then closed his case.
[15] Ms Hodoul stated that she started in July 2001 as a
depot manager but all correspondence referred to her as a branch
manager.
The email of the 17
th
February surprised her, as
she had no inkling that the merger was about to take place. She got
calls from other branches and it
made her wonder about her position.
Mr Schmittgen, a director came down from Johannesburg and met with
all the staff in the board
room. He said “
No one has no
worry about no retrenchments
” Egling came into the company
thereafter, as the regional manager while she remained he depot
manager. She became concerned
when Egling took away her functions, as
she was overseeing the staff and dealing with problems. She asked Du
Plessis and he said
he could not guarantee her position. At the
meeting on the 26
th
March she was very emotional, and
asked Egling to leave the office as she did not know him. Du Plessis
told her to go home and
take some leave. She was told to come up with
alternatives, rather than the company proposing alternatives, and she
suggested that
she be given an admin manager position. Despite her
suggestion that they would not put this in the minutes, and only
offered her
stores position. She did sign the minutes, and was very
emotional. She can not afford to earn R3000 a month instead of the
R15000
she earned at the time as she lives in “Toti and the job
is in Springfield- but it is not that it is the change which
devastated
her. There was no joint consensus seeking during the
consultation, and she was informed in writing why her job was
redundant. She
was not told in writing of any alternatives, the
number of employees likely to effected, discussion of re-employment,
and the number
of employees dismissed of ops req in the last 12
months. He job as depot manager meant that she was responsible for he
day to day
running of the branch. The previous manager had committed
suicide, and there was no manager for 11 months before she arrived
and
the depot was a mess, and took her months to get sorted out.
There was also staff problems and she made them into a team. She was
worried by the phrase “
Mike would take over
” in
Edmonds email as its says nothing about her remaining as the depot
manager. Nothing changed for a few days but then Mike
came over and
everything changed. Then she asked what was to happen to her, and Du
Plessis said that he could not tell her. To
her understanding she
lost her job on the 26
th
March – the date of the
email from Edmonds. If she was offered an admin position i.e. call
centre and would have considered
the job with a pay cut, she kept on
mentioning the admin position. If they said the salary for a stores
controller was R3000 and
they did not offer it at R5000 at which
level she would have taken it. She agreed the suggestion of the job
as an admin manager
is not minuted but they were not prepared to
move. Every time she made a suggestion it was not take note of, and
when she could
not come up with anything else, she was told there is
only the store position, take it or leave it. She did say that she
wants
the matter sorted out that day – the 2
nd
April
2003, she would have accepted a salary cut up to half of her salary.
It was put to her that she did not suggest this to the
company, and
she replied that their minds were already made up. She wants to be
reinstated. She is not employed and can not find
a job.
[16] Mr Bush closed his case.”
I have quoted this part of the award without correcting
any spelling errors.
The proceedings in the Labour Court
[6] As I have already said above, the Labour Court
dismissed the review application but did grant the appellant leave to
appeal.
The appeal
[7] In this case, when one reads the review founding
affidavit it appears as if there are only two grounds of review upon
which
the appellant sought to have the arbitration award set aside in
the Labour Court.
[8] These appear to be:
that the arbitrator had no jurisdiction to arbitrate
the dispute in this matter because it was not covered by the
provisions of
sec 191(12) of the Act. This provision provides in
effect that an employee who is the only one affected by a dismissal
for operational
requirements where there has been consultation may
elect to refer the resultant dismissal dispute to arbitration or to
the Labour
Court for adjudication.
that the arbitrator committed a reviewable irregularity
by taking into account written argument presented to him by the
third
respondent outside of the agreed period without giving the
appellant an opportunity to reply.
[9] Before us Counsel for the appellant, very wisely,
informed us that he was not pursuing the point referred to in (a)
above. Although
he did not say that he was also not pursuing the
second point, he did not pursue it in oral argument. On the
assumption that he
did not intend abandoning it let me dispose of it
quickly. In my view the appellant was entitled to file a reply to the
third respondent’s
written argument before the arbitrator could
decide the matter.
[10] The facts relating to this issue can be given very
briefly. According to the appellant’s founding affidavit, at
the end
of the leading of oral evidence in the arbitration an
agreement was reached between the appellant’s and, the third
respondent’s
representative, on the one hand, and, the
commissioner, on the other, to dispense with oral argument and
replace it with written
argument. Dates were then agreed upon as to
when the third respondent would deliver her written argument and when
the appellant
would deliver its written argument. The third
respondent failed to deliver her written argument within the agreed
period. The appellant
then delivered its written argument. Thereafter
the third respondent delivered her written argument.
[11] The delivery of the third respondent’s
written argument was late. It seems to me that the appellant should
have made
an approach to the commissioner and the third respondent
for an agreement to enable it to reply to the third respondent’s
written argument if it wished to reply because it had filed its
written argument before it could see the third respondent’s
written argument. It is true that in terms of the original agreement
the appellant would have responded to the third respondent’s
written argument. However, it was the appellant which decided to file
its written argument before the third respondent filed hers
without
making any arrangements to be allowed to file a reply later once the
third respondent had filed her written argument.
[12] The appellant went outside the terms of the
agreement when it filed its written argument before the third
respondent filed
hers because the agreement was that it would file
its heads of argument after the third respondent had filed his.
Obviously it
did this because the third respondent was fairly to
comply with the agreed time frames. I think that the appellant ought
to have
secured the agreement of both the first respondent and the
third respondent before, or, at the time of the, filing its written
argument. Accordingly, I am unable to say that the commissioner
committed a reviewable irregularity in this regard. In so far as
the
appellant may not have intended to abandon this point, same is
rejected.
[13] The only ground of review that the appellant’s
Counsel pursued in argument before us was the one captured in par 15
of
the founding affidavit. There the deponent to the founding
affidavit said:
“
Furthermore the first
Respondent erred in his award in that he failed and/ or neglected
and/or refused to apply his mind to the
evidence lead (sic) at the
arbitration proceedings, and furthermore did not apply his mind to
the relevant case law, applicable
to the facts of the matter which
was presented to him, and therefore exceeding his powers as
commissioner in not applying the relevant
statutory authorities to
the applicable facts of the case
.”
[14] The question which arose during argument was
whether the appellant was entitled to seek to overturn the
declaratory order of
the commissioner that the dismissal was both
substantively and procedurally unfair because it did not appear
clearly from the founding
affidavit that such findings were being
challenged. It seems to me that the appellant was entitled to pursue
whatever case fell
within the ambit of par 15 of its founding
affidavit.
[15] The difficulty with the appellant’s case in
this regard relates to whether the founding affidavit contains the
factual
grounds required by Rule 7A(2)(c) of the Rules of the Labour
Court. Rule 7A(2)(c) of the Rules of the Labour Court requires a
party
who applies for a review, such as the appellant in this matter,
to deliver a notice of motion that must be supported by “
an
affidavit setting out the factual and legal grounds upon which the
applicant relies to have the decision or proceedings corrected
or set
aside.”
Rule 7A requires the notice of motion to call upon,
in this case, the commissioner “
to show cause why the
decision or proceeding should not be reviewed and corrected or set
aside
.”
[16] In my view, the contents of par 15 of the founding
affidavit relate to conclusions of law. There is nothing either in
par 15
or anywhere else in the founding affidavit which sets out the
factual grounds upon which the appellant sought to base its legal
grounds of review. In par 15 of the founding affidavit the deponent
said that the commissioner erred in his award in that he “
failed
and or neglected and/or refused to apply his mind to the evidence led
at the arbitration proceedings”
but did not motivate this
bald allegation by reference either to the evidence or the award.
[17] The deponent to the founding affidavit also said in
par 15 thereof that the commissioner “
furthermore did not
apply his mind to the relevant case law, applicable to the facts of
the matter which was presented to him, and
therefore exceeding his
powers as commissioner in not applying the relevant statutory
authorities to the applicable facts of the
case
.” He did
not say what case law he was referring to that the commissioner
failed to apply nor did he specify the so-called
“
relevant
statutory authorities
” applicable to the case that he
complained that the commissioner failed to apply. There is absolutely
no factual basis advanced
for these complaints.
[18] It is arguable that the award in this case could
possibly be reviewable if the founding affidavit had been properly
drawn and
the correct grounds of review had been relied upon and
proper factual basis for such grounds had been set out. But, as the
papers
stand, it seems to me that I have no choice but to find that
the appeal falls to be dismissed for the absence of a factual basis
for the appellants complaints on review.
[19] Accordingly, such of the legal grounds of review as
may be contained in par 15 cannot assist the appellant as no factual
bases
therefor were set out in the affidavit. In those circumstances
the Court a quo was justified in dismissing the review application.
Both Counsel were agreed that costs should follow the result in the
event of this result. Accordingly, the order I make is one
in the
following terms:
The appeal is dismissed with costs
Zondo JP
I agree.
Jappie JA
I agree.
Patel JA
Appearances
For the Appellant : Adv Van As
Instructed by : Anthony Hinds Attorneys
For the Respondent : Adv PT Bush
Instructed by : Weber Attorneys
Date of judgment : 21 December 2007