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[2010] ZALAC 40
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Welman v First Rand Bank Ltd (Wesbank Division) (JA10/09) [2010] ZALAC 40 (25 May 2010)
JA10/09 –
D K DE JAGER
JUDGMENT
2010-05-25
1
iAfrica Transcriptions (Pty) Limited//dkdj
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT
:
JOHANNESBURG
CASE NO
: JA10/09
DATE
: 2010-05-25
In the matter between
KEVIN WELMAN
..............................................................................................
Appellant
And
FIRST RAND BANK LIMITED
(WESBANK DIVISION)
...............................................................................
Respondent
_____________________________________________________________
Coram: DAVIS JA, TLALETSI JA, MUSI AJA
_____________________________________________________________
J U D G M E N T
_____________________________________________________________
DAVIS JA
: This an appeal against a judgment of the
court
a quo
, in terms of which Molahlehi J, reviewed and set
aside a condonation ruling issued by the first respondent (the CCMA
commissioner)
and referred the matter back to the CCMA for fresh
consideration.
The facts of the case can be summarised thus:
Appellant was employed by the respondent (the bank), as the area
manager of the Wesbank Medium Corporate Division in Bruma at the
time
of his dismissal. He was dismissed by the bank on 21 November 2006,
having been found guilty of misconduct which related to
a request for
a receipt of R4 000 from one his subordinates, which was
apparently a part payment of an incentive which was
due to her.
Appellant lodged an appeal on 22 November 2006 and attached a
handwritten manuscript to his appeal form, in terms of
which he
pleaded that respondent allow him to resign instead of having his
services terminated by way of a dismissal. This particular
plea is
illuminating insofar as the overall dispute is concerned. In that
plea, the appellant sets out the facts of the case and
then states:
“
With all this in place, I acted prematurely
and irresponsibly by suggesting to Michelle Karrim that we share part
of her incentives.
If I had approached her one month later, i.e.:
1/11/06, this agreement would have been seen as “sharing”,
which is
allowed amongst Marketers in Terms of the Bank’s Rules
of Engagement.
With no intentions to be dishonest in any way, my irresponsible
behaviour has resulted in my dismissal.
I ask the Appeal Committee to please please grant me a Voluntary
Resignation, based on the following grounds:
No defrauding/stealing of the bank’s fund, my unblemished 16
year track record with Wesbank, my first (and last) offence,
my
premature irresponsible behaviour, my demotion prior to receiving any
funds …”
He then proceeds to say the following:
“
Please give me the opportunity to go and
look for work, as hard as it will be, without being restricted, in
terms of the consequence
of a dismissal. As a true Wesbanker, who has
always given my best, I ask you all to find it in your hearts and
give me a second
chance in life”.
The plea which, as is evident from the passages that I have cited,
was couched in desperate language. It appears to have been based
on
the notion that, were the appellant to secure a voluntary departure
from respondent’s employment as opposed to a dismissal
and
particularly a dismissal for dishonesty which was the case in the
initial hearing, respondent would then be obliged to record
on the
register of employees dismissed for dishonesty (“REDS”).
This is a list held by the banking council, and an
entry thereon
would have hampered the appellant securing employment in the banking
and financial sectors. It appears that in order
to avoid this
consequence, appellant was desperate to procure a result, whereby the
dismissal would have been replaced by an agreed
voluntary termination
of his employment.
A settlement agreement was concluded. It does not form part of the
papers but if one parses through the various affidavits, it
is clear
that an agreement was entered into, in terms of which the appeal
which had been lodged by the appellant would not be conducted,
that
appellant would have been considered to have voluntarily resigned
and, further, that the appellant would have been prohibited,
not only
from working for the bank but also for other banks, including ABSA
Bank, Standard Bank, Nedbank and Investec for
a period of 24
months from the date of the signing thereof.
Notwithstanding the conclusion of this agreement, appellant referred
a dispute to the CCMA on 29 January 2007. The referral fell
outside
of the prescribed period of 30 days from the date of dismissal.
Accordingly appellant brought an application for condonation
for the
late filing of the dispute, an application which was opposed by the
bank.
In a ruling of 6 March 2007, the commissioner found some merit in the
argument that the conclusion of the agreement had been a
case of
justus
error
, that the settlement agreement could not
have been in full and final settlement and furthermore that were
there to have been an
agreement, it was one which could, arguably, be
classified as
contra bonis mores
.
It was against this finding that the respondent launched a review
application in the court
a quo
. That review application was
successful. Molahlehi J, made the order against which the present
appeal has been lodged, namely that
the late filing of the review
application condoned, the commissioner’s ruling was reviewed
and set aside, the matter was
to be remitted back to the CCMA for
consideration by a commissioner other than the commissioner that
heard the initial matter.
No order was made as to costs.
In essence, Molahlehi J, found that a commissioner does not have the
power to set aside agreements such as this settlement agreement
and
that powers of a commissioner are restricted to the interpretation,
and application of agreements envisaged in section 24 of
the Labour
Relations Act, 66 of 1995 (“LRA”), that is agreements of
a collective nature.
The learned judge found:
“
The commissioner committed a gross
irregularity and exceeded his powers in finding that the agreement
was invalid or the termination
of the employment relationship was not
by mutual agreement between the parties.
The ruling stands to be reviewed for this reason alone”.
The learned judge went on to find that the commissioner had also
committed a gross irregularity in that he had speculated about
the
validity of an agreement which was placed before him and furthermore
that the commissioner would have been empowered to have
called for
the agreement and considered it
in camera
under a seal of
confidence.
The appeal, which has now been brought, is predicated on two grounds,
namely that the appellant contends that the court
a quo
erred
and that the CCMA did have jurisdiction to interpret the settlement
agreement and secondly, that the court
a quo
erred in finding
that the commissioner had committed a gross irregularity in the
proceedings by failing to call for the settlement
agreement and
consider it
in camera
.
When the matter was argued this morning, Ms Hardy who appeared on
behalf of the appellant, submitted that the only approach which
could
logically be pursued in this matter was for the case to be referred
back as had been ordered to a commissioner, for the commissioner
then
to determine whether a condonation application should be successful
and if so, to determine further, whether the appellant
had been
unfairly dismissed.
The problem with the present case is that, were this matter to be
referred back to a commissioner, the implication would inexorably
flow from such a judgment, that this court would have sanctioned an
argument that a commissioner would have jurisdiction, not only
to
examine a settlement agreement but to set it aside. Ms Hardy was
correctly constrained to accept that, absent the setting aside
of the
settlement agreement, there could not have been a dismissal because
the settlement agreement provides for a voluntary resignation.
That
point is fortified by the further notion that, even though the
initial disciplinary body had decided that appellant should
be
dismissed for dishonesty, the appeal body had not decided the matter
because the settlement agreement was concluded in circumstances
whereby it was agreed that the appeal body would not dispose of the
case. The settlement agreement had done the work of the appeal
body
and hence the disposition of the dispute.
The question therefore arises as to whether a commissioner, faced
with a case of this kind, has jurisdiction to examine the settlement
agreement, find whether because of
justus error,
or because
the agreement is
contra bonis mores
therefore the CCMA could
consider the possibility of an unfair dismissal. I leave aside the
difficulty with such an argument, being
that due to the settlement
agreement, the domestic disciplinary procedures were never exhausted
for the reasons already set out.
It is clear that the CCMA and its commissioners require the existence
of a dismissal as a jurisdictional prerequisite for its proceedings.
See Section 186 of the LRA and the definition of dismissal as
contained therein. In terms of section 192, an onus lies on a party,
alleging a dismissal, to prove such in the event of a dispute about
whether or not a dismissal took place. Until there is a dismissal
and
the existence thereof is shown, the jurisdictional fact which would
allow the CCMA to be clothed with jurisdiction does not
apply.
In this case, until such time as the settlement agreement is set
aside, there can be no question of a dismissal. Accordingly, in
terms
of the LRA, the CCMA is not clothed with jurisdiction. It would be
anomalous for the CCMA to have jurisdiction to set aside
settlement
agreements which have to be set aside in order to attain jurisdiction
in circumstances where there is no express provision
which gives it
jurisdiction and where the CCMA is a creature of the statute.
For these reasons therefore, to remit the matter back to a body that
does not have jurisdiction is an exercise in legal futility.
What
needs to happen, were the appellant to prosecute his case further, is
for the appellant to approach the appropriate court
with an
application to set aside the agreement on a cause properly shown,
being either the High Court or the Labour Court.
In the circumstances, the learned judge in the court
a quo
was
correct to find that the commissioner did not have the necessary
jurisdiction. But there is no point sending it back to another
commissioner when that finding had been made. That finding ended the
possibility of the CCMA hearing the matter, absent a setting
aside of
the agreement. On this leg, the court
a quo
appeared to have
overlooked the implications, with respect to the learned judge, of
its own finding regarding jurisdiction.
For these reasons therefore, I make the following order:
The appeal is dismissed with costs;
The order of Molahlehi J, is set aside and replaced with the order:
The late filing of the review application is condoned;
The commissioner’s ruling is reviewed and set aside;
There is no order as to costs.
TLALETSI JA and MUSI AJA Agreed
_______________________
DAVIS JA
---oOo---
APPEARANCES:
For the
appellant: Adv. G.B. Hardy
Instructed
by: Allerdyce & Partners ( Mr K. Allerdyce)
For the
Respondent: Adv. G.A. Fourie
Instructed
by: Edward Nathan Sonnenbergs
Date of
Hearing: 25 May 2010
Date of
Judgement:25 May 2010
iAFRICA TRANSCRIPTIONS (PTY)
LIMITED