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[2018] ZALAC 2
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Maepe v Commission for Conciliation, Mediation and Arbitration and Another (JA27/14) [2018] ZALAC 2; [2018] 4 BLLR 332 (LAC); (2018) 39 ILJ 1029 (LAC) (25 January 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JA27/14
In the matter between:
CLENCOR (PTY)
LTD
Appellant
and
MNGEZANA, KG
N.O.
First Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
SABAWO OBO NKOSI AND
32 OTHERS
Third to Further Respondents
Heard:
03 September 2015
Delivered:
25 January 2018
Summary: Review of
arbitration award – appeal limited to the finding of the Labour
Court – Court finding that court
a quo
making
far-reaching finding that might be detrimental to the matter when
arbitrated. Court setting aside finding by the court a
quo that
employees dismissed that the contract of employment not relevant –
appeal upheld.
Coram: Tlaletsi DJP,
Ndlovu et CJ Musi JJA
JUDGMENT
MUSI JA
[1] Ndlovu JA was
originally appointed as the scribe of this judgment. He passed away
before he could write it. The matter was allocated
to me on 28
November 2017. We apologise for the delay and inconvenience.
[2] The Labour Court
(Molahlehi J) made the following order:
‘
1. The
arbitration award under case number GAJB 16301/06 dated 12 September
2006, is reviewed and set aside.
2. The matter is remitted back to the
CCMA for consideration by a Commissioner other than the first
respondent.
3. There is no order as to costs.’
[3] This appeal, which is
with the leave of this Court, is not against the order of the Labour
Court but against certain findings
it made in its judgment.
[4] The fourth and
further respondents (employees) were employed by the appellant, a
temporary employment service provider. The
appellant alleged that the
employees were employed on fixed-term contracts that expired on 31
November 2005. The employees on the
other hand,
inter alia,
alleged that the contracts were to expire when the contract with the
appellant’s client expired.
[4] The appellant offered
the employees further employment, beyond 31 November 2005, because
its client still required workers.
It also requested them to sign new
fixed-term contracts. The employees refused. The third respondent
(union) negotiated with the
appellant on behalf of the employees. The
union was of the view that the new contracts contained substantially
different terms
whilst the appellant was of the view that the
amendments were effected to align the contracts with the prevailing
law. The employees
were permitted to work while the negotiations were
continuing. An impasse was reached.
[5] The employees were
given numerous opportunities to sign the new contracts. They refused.
On 15 June 2006, they were given until
21 June 2006 to sign the new
contracts or face termination of their original contracts. A final
extension was given until 28 June
2006 at 15h00. All the employees
who did not sign the new contracts were given two weeks’ notice
and their contracts were
terminated.
[6] Aggrieved by this,
the employees referred an unfair dismissal dispute to the Commission
for Conciliation Mediation and Arbitration
(second respondent).
Conciliation failed.
[7] The arbitration
proceedings were conducted before the first respondent
(Commissioner). The appellant and the employees called
witnesses. The
appellant omitted to include the original contracts in its bundle of
documents. It is common cause that during the
arbitration hearing
both the employees and the appellant endeavoured to favour the
Commissioner with copies of the original contracts.
He refused to
accept them.
[8] The commissioner made
the following finding:
‘
The
onus
is on the respondent to show the employment contracts if alleges were
on a fixed term duration (sic). Furthermore, if according
to
the respondent’s case the contracts signed expired on 30
November 2005 as also indicated in the letters written to the
individual employees, why were the employees allowed to work until
June 2006? Again why has it been so impossible to make
these
employment contracts available because if that is true, it more
favours the respondent’s case than that of the applicants.’
[9]
The Commissioner ordered the appellant to reinstate 20 employees and
to pay each of
them two months’ salary.
[10]
The appellant was dissatisfied with the Commissioner’s award
and applied to the Labour
Court to review and set it aside. The
Labour Court was also requested to remit the matter to the CCMA for
re-hearing before another
Commissioner. The sole review ground was
that the Commissioner grossly misconducted himself by not accepting
the appellant’s
offer to submit the original contracts and
thereafter drawing a negative inference against the appellant because
it had not produced
the contracts. The appellant also argued that the
Commissioner had a duty to assist it since it was represented by a
lay person.
[11] The Labour Court
found that the Commissioner had to consider two things. First,
whether there were dismissals and second, whether
the dismissals were
fair. The learned Judge analysed the evidence and found that
the Commissioner cannot be faulted in finding
that the employees were
dismissed.
[12] The Labour Court
then continued to make the following strange findings. It said the
following:
‘
The issue
that remained for determination was whether the dismissal was fair or
otherwise. In my view the Commissioner can
be criticised for
basing his finding on the basis of failure to produce the contracts
by the applicant.’
[13] The Labour Court
further stated:
‘
In the
present case, the Commissioner failed to apply his mind because he
considered irrelevant facts relating to the production
of the
contracts of employment of the employees. In my view, the
contracts were irrelevant because it was never disputed
that
fixed-term contracts were concluded with the employees and that they
expired during November 2006.’
[14] I accept that the
reference to November 2006 is a typographical error because the
employees’ contracts were terminated
during July 2006.
[15] In this Court, the
appellant argued that the findings of the Labour Court are wrong and
they may prejudice it because the findings
are conclusive. If the
findings are allowed to stand then there would be no need for the
matter to be heard by another Commissioner.
That Commissioner would
be bound or may regard himself or herself bound by the Labour Court’s
findings.
[16] The issue before the
Labour Court was a crisp one. Did the Commissioner commit a material
irregularity of the kind that rendered
his conclusion unreasonable or
one which a reasonable decision-maker could not reach? When the
Labour Court correctly answered
that question in the affirmative,
that ought to have been the end of the matter. There is no
cross-appeal against that finding
of the Labour Court.
[17] The Labour Court
erred by pronouncing itself on the relevance of the contracts. The
employees’ pleaded case was that
the contracts came to an end
at the expiry date or the date on which the contract between the
appellant and its client came to
an end. At the arbitration hearing,
their witness testified that they were not employed on fixed-term
contracts. The appellant
contended that the contracts expired on the
date stated in them and no other date. This was a live dispute. The
contracts were
therefore relevant.
[18] The commissioner
found that there was a dismissal. There was no need for the Labour
Court to confirm that finding because it
was not an issue brought to
it to adjudicate. The review ground was clearly and crisply
articulated by the appellant.
[19]
In
Tao
Ying
,
[1]
Ngcobo
CJ stated:
‘
Subject to
what is stated in the following paragraphs, the role of the reviewing
court is limited to deciding issues that are raised
in the review
proceedings. It may not on its own raise issues which were not
raised by the party who seeks to review an arbitral
award.’
[2]
[20] The Commissioner
effectively interpreted contracts that he had not seen. The Labour
Court did no better, for it pronounced
on the relevance of contracts
it too had not seen. The Labour Court erred in making those findings.
It effectually settled the
dispute by deciding that the employees
were dismissed and that the contracts were irrelevant. Are these
findings appealable?
[21]
In
Cilliers
v Ellis
,
[3]
the
following was said:
‘
[15] It is
trite that, generally speaking, a judgment or order is susceptible to
appeal if it has three attributes, namely:
‘
The
decision must be final in effect and not susceptible of alteration by
the court of first instance; second, it must be definitive
of the
rights of the parties; and it must have the effect of disposing of at
least a substantial portion of the relief claimed
in the main
proceedings’
[16] As emphasised
in
Makaleng
,
these three attributes are not necessarily exhaustive. Even
where a decision does not bear all the attributes of a final
order it
may nevertheless be appealable if some other worthy considerations
are evident, including that the appeal would lead to
a just and
reasonable prompt solution of the real issues between the parties.
Furthermore the interest of justice may be a paramount
consideration
in deciding whether a judgment is appealable.’
[4]
[22] Although the appeal
is aimed at findings and not the order, the judgment contains
far-reaching and conclusive findings that
are dispositive of
substantial issues in the matter.
[23] The main dispute was
whether there were dismissals or expiration of contracts due to
effluxion of time. The finding that there
were dismissals might lead
to the employees arguing that this point was definitively decided by
the Labour Court in the same proceedings,
between the same parties.
If the findings should stand the employees might argue that the only
issue for the Commissioner to decide
is the fairness of the
dismissals. It is in the interests of justice that the factual
findings of the Labour Court should be set
aside, lest they cause
confusion and protracted arguments and litigation. The appeal should
succeed.
[24] There is no reason
in law or fairness why a costs order should be made.
[25] The following order
is made:
i
The appeal is upheld.
ii.
The findings by the Labour Court that the employees were dismissed
and that
the fixed-term contracts are irrelevant to the arbitration
of the unfair dismissal dispute are set aside.
iii.
The order by the Court
a
quo
stands as it was granted.
________________
CJ
Musi JA
Tlaletsi
DJP concurs in the judgment of C J Musi JA.
APPEARANCES:
FOR
THE APPELLANT:
Mr Halgryn SC
Instructed by Hogan
Lovells (South Africa) Incorporated as Routlegde Modise Inc Sandton
FOR
THE THIRD AND FURTHER
RESPONDENTS:
Mr Lennox
Instructed by Waldeck
Attorneys Melrose Arch
[1]
CUSA v Tao Ying
Metal Industries and Others
2009 (2) SA 204 (CC).
[2]
At para 66. The
qualification in para 67 relating to points of law is not applicable
in this matter.
[3]
Cilliers NO and
Others v Ellis and Another
(200/2016)
[2017] ZASCA 13
(17 March 2017).
[4]
At paras 15 and
16. Footnotes omitted.