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[2012] ZALAC 39
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Shell SA Energy (Pty) Ltd v National Bargaining Council for Chemical Industry (âNBCCIâ) and Others (JA 42/10) [2012] ZALAC 39; (2013) 34 ILJ 1490 (LAC) (12 December 2012)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JA 42/10
In the matter between:
SHELL SA ENERGY (PTY) LTD
................................................................................
Appellant
and
NATIONAL BARGAINING COUNCIL FOR
CHEMICAL INDUSTRY (“NBCCI”)
..............................................................
First
Respondent
CHRIS SILIZI MBILENI N.O.
....................................................................
Second
Respondent
V MASEKO N.O.
..........................................................................................
Third
Respondent
ELMUATASIM IBRAHIM AHMED ALI
......................................................
Fourth
Respondent
CORAM:
TLALETSI JA,
MOLEMELA, AJA
et
MURPHY, AJA
Heard: 15 March 2012
Delivered: 12 December 2012
JUDGMENT
________________________________________________________________
MOLEMELA AJA
I
ntroduction
[1] This is an
unopposed appeal brought with leave of this court against the
judgment of the Labour Court (Moshoana J)
in
a review application that was brought by the appellant to that Court
to have a ruling reviewed and set aside. The first respondent
is the
National Bargaining Council for the Chemical Industry. The second
respondent is a panellist who issued the ruling in question.
This
ruling was issued under the auspices of the first respondent. The
third respondent is also a panellist who, under the auspices
of the
first respondent, subsequently issued a certificate of outcome
declaring that the dispute could not be resolved through
conciliation
of the matter.
The review, which was
brought in terms of
section 158(1)(g)
of the
Labour Relations Act 66
of 1995
, was directed at the second respondent’s ruling in
terms of which he found that there was an employer-employee
relationship
between the appellant and the fourth respondent.
Background
[2] The facts that gave rise to the
dispute were the following: The fourth respondent is a Sudanese
national. On or about 8 March
2004 and, while in the employment of
Shell Sudan, he was assigned to the appellant. Shell Sudan, like the
appellant, is a subsidiary
of Royal Dutch Shell PLC (RDS). In terms
of the Human Resources Policies and Practices of RDS, employees of
its subsidiaries are,
worldwide, allowed to be assigned to
subsidiaries in other countries where it (RDS) has operations,
including South Africa. The
assignment was for a period of four
years. The appellant paid the fourth respondent on the Expatriate
Basic Administrative Salary
(EBAS) system, which was a completely
separate remuneration structure from the one applied to the
appellant’s employees.
In terms of EBAS, pension and retirement
funds were held by Shell Sudan.
[3] While the fourth Respondent was on
assignment in South Africa, he was promoted to the position of
Engineering Manager for the
Shell Oil Products South Africa. During
2007-2008, RDS embarked on a re-organisation process of its
operations and subsidiaries
in its Africa business. During August
2008 and as a consequence of the restructuring process by RDS, the
appellant sent a letter
to the fourth respondent in which he was
advised that Shell Sudan had been sold to Oil Libya with effect from
01 December 2008.
In the same letter, the fourth respondent was also
given notice to start planning his repatriation to Sudan before the
effective
date of the sale. The appellant’s understanding at
that stage was that the sale of Shell Sudan to Oil Libya resulted in
the
fourth respondent no longer having a relationship with RDS, “the
parent company”, thus adversely affecting his assignment
to
South Africa.
[4] On or about 9 November 2008 Shell
Sudan handed a letter to the fourth respondent in terms of which he
was advised that his services
were terminated with immediate effect
due to the sale of the business to Oil Libya. The fourth respondent
received a severance
package from Shell Sudan in terms of Sudanese
laws, collective agreement with the recognised union and his
employment contract.
The fourth respondent did not challenge his
dismissal in terms of the dispute resolution mechanisms in Sudan. He
returned to South
Africa and referred an unfair dismissal dispute
against the appellant to the first respondent.
[5] The dispute was set down for
conciliation on 19 January 2009. It would seem that the proceedings
were not recorded, as no such
record was provided to the court a quo.
The appellant in its affidavit filed with the court a quo recited
what happened at those
proceedings and the fourth respondent did not
take issue therewith. The summary of the proceedings captured in this
judgment was
gleaned from the appellant’s affidavit. At the
commencement of the conciliation proceedings, the appellant raised a
point
in limine
in terms of which the jurisdiction of the
first respondent was disputed on the basis that there was no
employer-employee relationship
between the appellant and the fourth
respondent. The fourth respondent objected to the presence of the
appellant’s legal
representative at the proceedings.
[6] The fourth respondent’s
legal representative submitted (i) that the question of whether or
not the fourth respondent had
cited the correct employer had to be
determined before conciliation could take place; (ii) that the second
respondent may need
to hear oral evidence in order to resolve any
material disputes of fact regarding the true identity of the
employer; (iii) that
the parties had the right to legal
representation as the resolution of the dispute relating to the
employer-employee relationship
did not form part of the conciliation
process. The second respondent then ruled that the appellant’s
legal representative
should leave the hearing and that an employee of
the appellant should make submissions on behalf of the appellant.
Oral arguments
were presented by that employee and the fourth
respondent. During these oral arguments, both parties referred to
some documents
which were subsequently provided to the second
respondent after the hearing. No oral evidence was led by either the
appellant or
the fourth respondent.
Review application at the court
a
quo
[7] The appellant’s review was
based on the following inter-related grounds: (i) that the second
respondent improperly refused
to allow the applicant legal
representation to allow him to argue the
in limine
jurisdictional point; (ii)that the second respondent failed to invite
both parties to present submissions on whether or not legal
representation was warranted or not; (iii) that the second
respondent’s finding that the fourth respondent was an employee
of the applicant was not supported by properly admitted evidence;
(iv) that the second respondent had failed to realise that there
was
a material dispute of fact as to whether the fourth respondent was an
employee of fact of the appellant as defined in
section 213
of the
LRA. (v) that the second respondent failed to direct the parties to
adduce oral evidence when disputes of fact pertaining
to the status
of the fourth respondent emerged, thus committing an irregularity
that denied the appellant a fair hearing; (vi)
that the second
respondent misconstrued the submissions made to him and failed to
allow the parties to introduce into evidence
all relevant
documentation which would enable him to make a proper determination;
(vii) that the second respondent failed to realise
that the
repatriation of the fourth respondent to Shell Sudan did not
constitute a dismissal and that his services were terminated
by Oil
Sudan and not by the appellant; (viii) that the second respondent
failed to decide the point
in limine
on the basis of
applicable legal principles.
[8] The court
a quo
concluded
that the proceedings in which the appellant had raised the point
in
limine
were conciliation proceedings and that since a conciliator
had no discretion to allow legal representation at conciliation
proceedings,
the appellant was, accordingly, not entitled to legal
representation during the proceedings in question. The court
a quo
expressed the view that the appellant ought to have raised the
jurisdictional point by bringing a written application as
contemplated
in the provisions of
rule 31(2)
of the Dispute
Resolution Procedures of the first respondent, which would have
guaranteed it legal representation in the matter.
[9] The court
a quo
also
further expressed the view that there was in any event no absolute
right to legal representation at proceedings heard by the
first
respondent. As authority for this view the court
a quo
placed
reliance on the case of
Netherbum
Engineering CC t/a Netherbum Ceramics v Mudau NO and Others
(2009) 4 BLLR 299
(LAC). On the issue of the second respondent’s
conclusion that there was an employer-employee relationship between
the appellant
and the respondent without recourse to oral evidence,
the court
a quo
found that the second respondent was well
within his rights to do so, as
Rule 31(10)
of the first respondent’s
above-mentioned procedures allowed the first respondent to determine
an application raising a jurisdictional
point “in any manner it
deems fit”. The court
a quo
accordingly found that the
second respondent had correctly found that the appellant was the
fourth respondent’s employer.
The court
a quo
further
found that the fact that the second respondent had erroneously found
that the onus regarding the establishment of the status
of the fourth
respondent lay with the appellant was an error of law and,
accordingly, was not reviewable.
The appeal
[10] The main issue in the appeal is
the court
a quo
’s finding that the proceedings before
the second respondent, notwithstanding the jurisdictional objection
that was raised,
constituted a conciliation hearing thus entitling
the second respondent to disallow legal representation and to engage
in a fact-finding
exercise, instead of allowing the presentation of
evidence to establish the existence of the employer-employee
relationship.
Evaluation
Were the proceedings which gave
rise to the second respondent’s ruling conciliation
proceedings?
[11] In the case of
Pinetown
Town Council v President of the Industrial Court
and
Others 1984(3) SA 173 (N), it was stated as follows:
‘
Where
the jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself jurisdiction
by
incorrectly finding that the conditions for the exercise of
jurisdiction are satisfied. The conditions precedent to jurisdiction
are known as "jurisdictional facts" (see
Anisminic
Ltd v Foreign Compensation Commission
[1968]
UKHL 6
;
[1968] UKHL 6
;
[1969e
2 AC 147
(HL)
at 208 per Lord Wilberforce) which must objectively exist before the
tribunal has power to act; consequently a determination
on the
jurisdictional facts is always reviewable by the Courts because in
principle it is no part of the exercise of the jurisdiction
but
logically prior to it. (See also
Theron
en Andere v Ring van Wellington van die NG Sendingkerk in SA en
Andere
1976
(2) SA 1
(at
15).’
[12] The principle
laid down in that case has been followed in a plethora of cases in
the Labour Court.
In
Avroy
Schlain Cosmetics (Pty) Ltd v Kok and Another
(1998) 19 ILJ 336 (LC) the court had the following to say at p346:
‘
The
CCMA or any tribunal for that matter can, on a preliminary basis,
subject to subsequent review by a court, decide on its jurisdiction
i.e. it should be the very first enquiry which the CCMA will have to
make before it proceeds to determine whether the dismissal
of an
employee was fair or unfair.’
See also the case of See
Flexware
(Pty) Ltd v CCMA and Others
(1998) 19 ILJ 1149;
EOH
Abantu (Pty) Ltd v CCMA and Another
(2008) 29 ILJ 2588
(LC) and the cases referred to therein.
[13] It is evident
from the authorities mentioned in the preceding paragraphs that a
point
in limine
raised
at conciliation proceedings disputing the existence of an
employer-employee relationship necessitates a decision on the issue
before the dispute is conciliated.
In
effect,
the determination of this issue of
necessity precedes the conciliation process. That is indeed the
correct interpretation of the
LRA.
[14] A reading of the second
respondent’s ruling reveals that he had this correct
understanding in mind when he outlined the
issue to be decided as
follows:
‘
The
issue to be decided is whether or not Mr Elmuatasim Ibrahim Ahmed Ali
was an employee of Shell SA Energy. If it is established
that he was
not an employee, whether or not the Council has jurisdiction to hear
the matter/dispute.’
Clearly, the second respondent was
alive to the fact that the proceedings he presided over were not
conciliation proceedings but
rather entailed the determination a
jurisdictional point pertaining to whether the fourth respondent was
the employee of the appellant
or not, as the appellant contended that
the fourth respondent was not employed and dismissed by it but by
Shell Sudan. The court
a quo thus erred in concluding that those
proceedings were conciliation proceedings and that the second
respondent had conducted
a fact-finding exercise as part of the
conciliation process as contemplated in section 135(3) of the Labour
Relations Act 66 of
1995 (“LRA”).
Should the leading of evidence have
been allowed before the second respondent made his ruling?
[15] Having concluded that the second
respondent had a proper grasp of the nature of the proceedings before
him, the next question
to be answered is whether he acted correctly
in deciding the matter without the benefit of oral evidence. As
stated before, the
appellant had sought to lead oral evidence to
prove that no employment relationship existed between it and the
respondent. The
second respondent refused to allow such evidence. It
was clear from the submissions made by the appellant’s legal
representative
to the second respondent that there was a dispute of
fact as to whether the fourth respondent was employed by the
appellant or
Shell Sudan. In reaching his decision, the second
respondent chose to rely solely on the documents that were handed up
to him,
which included a letter of appointment issued by the
appellant. The second respondent seems to have placed heavy reliance
on this
letter of appointment. It is evident from the appellant’s
affidavit, filed with the court
a quo
, that some of the
documents handed up to the second respondent were incomplete, as they
referred to other documents that were not
handed in.
[16] The court
a quo
’s
take on the second respondent’s failure to legal representation
and the presentation of oral evidence is apparent
from the following
passages of the court
a quo’s
judgment, which read thus:
‘
The
applicant [appellant] is not contending for a moment that the fourth
respondent is an independent contractor. It simply says
it is a wrong
party. Such issue, in my view, is simple and quick to resolve. If an
employee produces a letter of appointment and
the other party does
not allege fraud, then the issue is resolved. In the matter before me
that simple issue arose. The issue became
more semantic than a real
dispute of fact as argued by the applicant [appellant]. The applicant
[appellant] says it
assigned
him for 4 years and the fourth respondent says it was
appointed
for four years. The applicant [appellant] further says the
assignment
was
terminated
when Shell Sudan was sold and the fourth respondent says he was
dismissed
.
Interestingly, the New Shorter Oxford English Dictionary defines
assign to mean appoint or designate a person to an office or
duty
.
It
defines appoin
t
to mean amongst others assign or grant authoritatively. Therefore
there was nothing complex to have deserved legal representation…
That
being so, it is in my view, inappropriate to tie a panellist to oral
evidence in order to conduct without prejudice proceedings…
Even in this court, where the dispute of fact is not genuine, it is
resolved by having regard to admitted facts. That being so,
why
should a panellist be bogged down to oral evidence in the face of
admitted letters of appointment? ... I conclude that oral
evidence
was not necessary. There was no genuine dispute of fact. Regard being
to the approach adopted in Flexware, there may be
cases deserving of
being referred for oral evidence. The one before me is certainly not
one of those, given the limited dispute
that arose… As I have
pointed out earlier, the dispute was not about the nature of the
relationship per se, but who the
liable party was. In determining
that dispute, the issue was to identify the correct party…Any
person faced with the question
whether another is an employee, he or
she must have regard to the definition of employee in section 213 of
the LRA. In this matter,
the only issue to have been determined was-
who works for another person. The contention of the applicant being
that it was not
another person. The person is Shell Sudan. The fourth
respondent was only assigned to it. In resolving such a simple issue,
the
second respondent had regard to the letters of appointment and
the advertisement. Those letters were presented by the applicant
for
that matter. Having regard to the applicant’s contentions, it
cannot be said that there was a material dispute of fact
which would
have necessitated leading of oral evidence. …I fail to
understand how a letter of appointment signed by a duly
authorised
person cannot serve as proof of employment. The applicant [appellant]
labels the letter a letter of assignment. From
the letter, it is
clear that the applicant considered itself to be the assignor and the
fourth respondent to be the assignee. As
it may be said ‘the
difference is the same’.
[17] It is evident from the extract of
the court a quo’ judgment that it endorsed the second
respondent’s approach of
deciding the point
in limine
in
question without resorting to evidence even though the appellant had
requested for same to be led. The court a quo was clearly
of the view
that the jurisdictional point raised did not warrant the presentation
of evidence. The court a quo, like the second
respondent, placed
heavy reliance on the letter of appointment apparently issued by the
appellant. Nothing much was said about
the fact that the letter of
dismissal was issued by Shell Sudan and not by the appellant, as well
as the fact that the fourth received
had subsequently received a
severance package from Shell Sudan.
[18] I am of the view that such an
approach is incorrect. I align myself with the views expressed In the
case of
Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg
and Bean Suncoast and Others
(2009) 30 ILJ 2968 (LC), where the
court had the following to say:
‘…
The
primary argument presented by the applicant’s representative
was that evidence should be heard in relation to the points
in
limine
being argued, and that for reasons unknown, the second respondent
made a ruling based only on the respective representatives’
submissions. The material properly before a commissioner on which the
commissioner can base a decision is ordinarily limited to
evidence
under oath (whether this be introduced
viva
voce
or by affidavit) or evidence introduced by agreement between the
parties. The fact that there was no proper evidentiary basis
established before the second respondent on which to make a ruling in
relation to the points
in
limine
was not a function of the applicant’s failure to adduce
sufficient evidence so much as the second respondent’s failure
to require that evidence to be led.’
[19] The issue pertaining to whether
evidence should be allowed in order to decide a jurisdictional point
regarding the existence
(or otherwise) of an employment relationship
was also canvassed in the case of
Denel
(Pty) Ltd v Gerber
[2005] 9 BLLR 849
(LAC) (“
Denel
judgment”). The court in that matter had to decide whether the
claimant was the cited respondent’s employee or whether
the
claimant was engaged as an independent contractor. The court gave a
detailed analysis of local and foreign authorities on this
aspect.
Having carefully considered and analysed such authorities, the
court’s views on the matter were aptly expressed as
follows at
para19-23:
‘
[19]
When
a court, or, other tribunal is called upon to decide whether a person
is another’s employee or not, it is enjoined to
determine the
true and real position.
Accordingly, it ought not to decide such a matter exclusively on the
basis of what the parties have chosen to say in their agreement
for
it might be convenient to both parties to leave out of the agreement
some important and material matter or not to reflect the
true
position.
[20]
If a court or other tribunal were to be precluded from looking at
matters outside of the parties’ agreement, there would
be a
serious danger that it could be precluded from determining the true
position or the true relationship between the parties
and end up
making a finding that the parties wish it to make as to the position
when in fact the true position is different. That
cannot, in my view,
be allowed in a case where the duty of the court or tribunal is to
determine that which is objectively the
position. Indeed, were a
court or tribunal faced with such a question to decide it in
accordance only with the contents of the
agreement between them,
then, in a case such as this one, where the decision whether a person
was or was not another one’s
employee goes to the jurisdiction
of the court, the parties would in effect be able by their agreement
to confer jurisdiction on
a court or tribunal which it otherwise does
not have or to take away from a court or tribunal jurisdiction that
it otherwise has
over them. That would be completely untenable and
can simply be not allowed because
whether or not a court or other
tribunal has jurisdiction in a particular matter is, generally
speaking, a matter that must be determined
objectively and not be
based on the say-so of any party or, indeed, of all parties to a
dispute
.
[21]
Furthermore, it seems to me that not to allow such evidence may lead
to the decision of the court being based on form rather
than
substance – something that for decades the courts not only in
this country but in many other jurisdictions as well have
striven to
avoid. In fact this Court has previously approved a statement by the
old Labour Appeal Court to the effect that the
parties’ own
perception of their relationship and the manner in which the contract
is carried out in practice may, in areas
not covered by the strict
terms of the contract, assist in determining the relationship. (See
SABC v McKenzie
1 (1999) 20
ILJ
585 (LAC) at 591E–F
at paragraph [10] approving
Borcherds v CW Pearce & J Sheward
t/a Lubrite Distributors
(1993) 14
ILJ
1262 (LAC) at
1277H–I). In
McKenzie
’s case this Court also said
at 591G–H (paragraph 10):
‘
In
seeking to discover the true relationship between the parties, the
court must have regard to the realities of the relationship
and not
regard itself as bound by what they have chosen to call it (
Golberg
v Durban City Council
1970
(3) SA 325
(N) at 331 B–C).
As
Brassey
The Nature of Employment
points out at 921, the label
is of no assistance if it was chosen to disguise the real
relationship between the parties, ‘but
when they are bona fide
it surely sheds light on what they intended.” I agree with the
first part of Brassey’s view
and refrain from expressing a view
on the second part of Brassey’s view . . . Indeed, it seems
that in the reported cases
where the same issue has arisen, oral
evidence was always led on whether there was an employment
relationship even when there was
a contract between the “employer”
and a close corporation or when there was a contract between the
“employer”
and the “employee” purporting to
show the relationship to have been that of an independent contractor
or to have been
one between two legal entities.
[22]
Irrespective of, and quite apart from, what has been said above,
it is, furthermore, clear from the authorities not only in this
country but also in England and elsewhere that the law is that
whether or not a person is or was an employee of another is a
question
that must be decided on the basis of the realities –
on the basis of substance and not form or labels – at least not
form or labels alone. In this regard it is important to bear in mind
that an agreement between any two persons may represent form
and not
substance or may not reflect the realities of a relationship. Any
oral or other evidence which may assist the court to
conclude what
the reality of the relationship is or was between such two persons is
admissible and is not precluded by the parol
evidence rule. In this
regard it is noteworthy that in almost all reported cases that I have
come across which relate to this question,
oral evidence was led
which related to how the parties interacted with each other and how
they handled their relationship in practice.’
(My emphasis).
[20] I am of the
view that in the
Denel
judgment, the court’s consideration of
whether there was a need for
viva voce
evidence to be led when a jurisdictional point
pertaining to the existence of an employer-employee relationship was
raised was not
confined only to instances where the question sought
to be answered was whether the person rendering service was an
employee as
contemplated in section 213 of the LRA as opposed to
being an independent contractor.
[21] My impression
is that the approach laid down in that case would be equally
applicable even where the issue to be determined
was the correct
identity of the employer, as was the case in the matter at hand,
where the second respondent had to decide whether
the fourth
respondent’s employer was the appellant or Shell Sudan.
A party referring an unfair dismissal dispute must obviously be in
the employ of the employer against whom such a dispute is referred.
Expressed differently, there cannot be a dispute relating to unfair
dismissal unless there is an employment relationship between
the
claimant and the respondent in question.
I am of
the view that even though the facts of the
Denel
judgment are not on all fours with the matter
under consideration, there are enough similarities which suggest that
the court in
that matter also envisaged the circumstances of the
present case.
[22] The
similarities I am referring to are the following facts as summarised
by the court in para 1 and 2 of the
Denel
judgment:
‘
[1]
The question for determination in this appeal is whether the
respondent was an employee of the appellant as at the 12 June 1998
when she left the appellant pursuant to what she contends was a
dismissal but what the appellant contends was not a dismissal as
there was no employment relationship between them.
On
the one hand the respondent contends that she was an employee of the
appellant while, on the other, the appellant contends that
she was
not its employee but was an employee of a company called Multicare
Holdings (Pty) Ltd (“Multicare”) which was
her company
with which the appellant had an agreement to provide certain services
which the respondent was providing to the appellant
on behalf of that
company.
[2]
A dispute concerning the fairness of the alleged dismissal arose
between the appellant and the respondent. The respondent referred
the
dispute to the Labour Court for adjudication after conciliation had
failed. In the statement of claim the respondent alleged
that she had
been dismissed by the appellant and that such dismissal was unfair
and sought reinstatement and compensation. In its
response to the
statement of claim, the appellant took the point that the Labour
Court had no jurisdiction to adjudicate the dispute.
As a basis
for this objection, the appellant denied the allegation by the
respondent that she had been employed by it.
The appellant
further alleged that it had a written contract with Multicare in
terms of which that company had an obligation to
render certain
services to, or, perform certain work for, the appellant and the
respondent was the person who performed such work
or rendered such
services to the appellant on behalf of that company.’ (My
emphasis)
.
[23] The view that
the principle enunciated in the
Denel
judgment is equally applicable to the present
circumstances is buttressed
by the
following
remarks made in para 16 and 17 of that judgment:
‘
When
a party to a dispute objects to the jurisdiction of the Labour Court,
or of any other tribunal, for that matter, in a claim
or dispute (eg
unfair dismissal claim) under the
Labour Relations Act (66
of 1995)
(“the Act”) on the basis that the claimant (or the person
on whose behalf the claim is being pursued)
was
not an employee of the respondent or was not employed by it or that
there was no employment relationship between them at the
relevant
time,
what the court or the tribunal dealing with that objection is called
upon to do is to determine whether the claimant or person
on whose
behalf the claim is being pursued was an employee within the meaning
of that word as defined in section 213 of the LRA
of the Act’.
…
On
the above authorities it seems to me that the parol evidence rule
does not preclude the leading of oral evidence where the purpose
of
leading such oral evidence is to show what the true relationship was
between parties to a dispute or where the evidence tends
to show or
may tend to show what the true relationship was between the parties
or where it may tend to show that the relationship
between the two
parties falls or fell within the ambit of the definition of the word
“employee” in section 213 of the
Act.’
(
85197210465
My
emphasis)
[24] The order made by the court in
the case of
August Lapple
(South Africa) v David Jarrett and Others
[2003] 12 BLLR
1194
(LC) and the cases discussed therein demonstrate just how
complex the determination of the identity of the true employer can
be,
even where evidence has been adduced. On the basis of these
authorities, as well as the
Denel
judgment, I am of the view
that the question of whether there is an employer-employee
relationship in the context of the present
matter is one that can be
properly determined by adducing
viva voce
evidence, unless
both parties are agreed that such a determination can be made on the
basis of documentary evidence only.
[25] As stated before, the fact that
the fourth respondent received a letter of termination of employment
from Shell Sudan and even
accepted a severance package from it were
aspects which begged for an explanation from the fourth respondent,
but these were not
considered by the second respondent at all. There
was a clear dispute of fact which the second respondent chose to
decide without
the benefit of affidavits or oral evidence. See
Flexiware (Pty) Ltd v CCMA and Others
(
supra)
.
[26] Having considered all of the
above, I am of the view that in refusing the appellant’s
request to lead
viva voce
evidence and instead being content
to dispose of the matter on the basis of documents that were not
properly admitted into evidence,
the second respondent committed a
material irregularity warranting the setting aside of his decision.
Insofar as the court
a quo
found otherwise, it erred. I am
satisfied that the court
a quo
misdirected itself materially
and that this misdirection alone warrants the setting aside of its
order.
[27] In the light of this conclusion,
it is not necessary to consider the issue relating to the onus of
proof and the issue whether
or not the second respondent’s
failure to allow legal representation was reasonable. Counsel for the
appellant in any event
conceded that those issues were ancillary.
[28] Considering the findings made
above, the appeal stands to succeed. As the appeal was unopposed, the
issue of costs does not
arise. I would accordingly grant the
following order:
Order
1. The appeal is upheld with costs.
2. The order of the court a quo is set
aside and replaced with the following:
“
(i) The
ruling issued by the second respondent under case number GPCHEM
180-08/09, dated 22 January 2009 is reviewed and set aside.
(ii) The matter is referred back to
the first respondent for a hearing de novo before a commissioner
other than the second and third
respondents.
(iii) There is no order as to costs.”
________________
MOLEMELA, AJA
Acting Judge of the Labour Appeal
Court
TLALETSI, JA and MURPHY, AJA agreed
with the judgment.
Appearances:
For the Appellant: Mr P Maserumule
(Maserumule Inc)
For the Fourth Respondent: Unopposed