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[2002] ZALCJHB 14
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Knightwatch Security (Pty) Ltd v Mbileni NO and Others (JR806/2001) [2002] ZALCJHB 14 (27 August 2002)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD AT JOHANNESBURG
REPORTABLE
CASE NO. JR
806/2001
In
the matter between:
KNIGHTWATCH
SECURITY (PTY) LTD
Applicant
and
MBILENI,
N N.O. (cited in her capacity as commissioner
of
the Commission for Conciliation, Mediation and
Arbitration)
First
Respondent
THE
COMMISSIONER FOR CONCILIATION, MEDIATION
AND
ARBITRATION Second
Respondent
MDIDIMA,
P & 5 OTHERS
Third
and Further Respondents
J U
D G M E N T
NTSEBEZA
AJ:
1.
This matter came before me on 21 June 2002
when I ordered that the matter be postponed
sine
die
because the papers were not in
order. The contents of the review application were missing from
the file and, according to
Mr Snyman, who appears for the Applicant,
the disappearance of file contents in this matter had become the rule
more than the exception.
Indeed, on 27 June 2002 my brother,
Sutherland AJ asked Mr Snyman to file an affidavit giving a history
of why it appeared documents
seemed to be disappearing from the Court
file and that the matter was being delayed from being finalised.
Sutherland AJ also
ordered that Mr Snyman once again prepare
documents for the Court file and that the Registrar should not
release the Court file
out of his/her control. The matter was
set down for 25 July 2002 when it again came before me. Mr
Snyman duly complied
with this Court order and, on 25 July 2002, the
documents that were filed as copies of the originals which had
disappeared out
of the Court file, were the Applicant’s heads
of argument filed on 7 June 2002 and an entire Court file bundle
containing
all the indexed pleadings which had been filed on 7 June
2002, which bundle has an index and 175 bound pages.
2.
I may indicate here that when the matter
was heard, Mr Ndzimande, who appeared on behalf of the Third and
Further Respondents, claimed
that he had not been served, by Mr
Snyman, with any documents for the hearing on 25 July 2002. Mr
Snyman produced another
Court file bundle which he handed over to Mr
Ndzimande. Mr Snyman claimed that he had in fact given the same
Court file bundle,
indexed and paginated, to Mr Ndzimande on 7 June
2002. It is not for me to investigate and decide on the
circumstances surrounding
the disappearance of documents from the
Court file, save only to remark that this is an extraordinary
occurrence and does not augur
well for the administration of
justice. It also begs the question as to how it is possible for
documents to disappear out
of the Court file with such regularity as
has been testified to by Mr Snyman in the affidavit which my brother
Sutherland ordered
him to file. It is a matter of grave
concern, and one which the Registrar of this Court must take
particular notice of.
The affidavit of Mr Snyman is a serous
indictment and it would be hoped that definite steps are being taken
in the office of the
Registrar to ensure that occurrences of this
nature do not take place.
3.
This is an application for the review of an
arbitration award by a commissioner of the Commission for
Conciliation, Mediation and
Arbitration (“the CCMA”) in
terms of section 145(1)(a), 145(1)(b) and 145(2) of the Labour
Relations Act, No. 66 of
1995 (“the Act”). The said
arbitration award was handed down by Commissioner Mbileni (the First
Respondent) in
terms whereof the Third and Further Respondents
(hereinafter referred to as “the employees”) were found
to have been
unfairly dismissed and were awarded compensation.
The Applicant seeks to set aside that finding.
4.
The employees allege that they were
unfairly dismissed by the Applicant on 22 August 2000. The
Applicant posts security guards
at the premises of its customers
whose property it safeguards. From time to time, and for a
variety of reasons – Applicant’s
permanent guards being
off duty, or being off sick, or being on leave --- the Applicant
procures the services of casual guards
to fill in the particular
posts for the particular day. These “
casuals”
are normally selected from a group of guards who usually gather at
the Applicant’s premises hoping to be selected for a casual
position for the day. All casuals so appointed by the Applicant
get posted and are paid for the day so posted. Simply
put,
there was always a large “
pool”
of casuals from which the Applicant was able to fill daily posts that
became vacant on a day-to-day basis.
5.
Due to discrepancies that developed in this
system of selecting casuals from a pool of people who would merely
gather at the gates
of the Applicant’s premises, the Applicant
decided to conclude independent contracts with a group of casual
employees in
terms whereof they would be appointed for a specific
period of time to work as and when required by the Applicant during
such periods.
It is from such “
casual
pool”
that the employees in this
application were drawn. According to the Applicant, all the
employees were appointed on the first
occasion on the basis of a
casual position for one day on either 29 June or 3 July 2000
respectively. They were given letters
of appointment for the
one day. Subsequent to this first appointment, they continued
to work on an
ad hoc
basis, and from time to time, as and when required to fill a vacant
post, being a part of the group of casuals gathered at the
Applicant’s premises every day.
6.
In this regard, casual job sheets were made
out for each day’s work in respect of each of the individual
employees.
From the documents filed as part of the Court
bundle, it is clear from these documents that the employees only
worked on an
ad hoc
basis. Towards the middle of July 2000 the Applicant had
vacancies for permanent staff appointments. The casual workers
were invited to apply for such posts, by way of agreeing to undergo a
free two-day course, with the Applicant in selecting the
top
performers on such courses as permanent employees. All the
individual Respondents applied in writing. These courses
took
place on 18 and 20 July and 19 and 21 July respectively.The employees
were not successful in obtaining permanent positions,
having failed
to complete the relevant courses. Only one of them actually
completed the course but he also was unsuccessful
in obtaining
employment. Having failed to obtain permanent employment, the
employees however remained part of the “
casual
pool”
.
7.
The Applicant has given a detailed account
of how these employees were engaged by it. For an example, one
Price Mdidimba,
according to the Applicant, applied for employment on
29 June 2000. His application was not successful. He was
however
given casual jobs from time to time, as part of the casual
pool. He worked on 29 June and on 6, 7 and 8 July. He
again
applied for a permanent position as part of the 19 and 21 July
2000 test candidates referred to herein above. He did not
succeed in his employment application and was not appointed. He
was then appointed on a fixed term contract of employment
from 17
November to 16 December 2000 which contract was signed by him.
His fixed term contract of employment terminated on
15 December 2000
which fact was confirmed in writing to him on 8 January 2001.
8.
The Applicant has similar details in
respect of Dyson Maluleke, Meshack Mashiola, Simiso Dalton Ndzimande
and one George Mncube.
In the Applicant’s submission, no
evidence whatsoever exists, nor was any presented by any of the
employees to, illustrate
or prove any dismissal on 22 August 2000,
which is their only stipulated date of dismissal. All of the
allegations by the
Applicant are fully supported by substantial
documentary evidence and it does appear that all of this evidence,
including documentary
support thereof, was placed before the First
Respondent (the arbitrator). The criticism of the arbitrator’s
award is
the fact that it does not seem to refer to this substantial
documentary evidence presented to him nor does it fully record the
evidence available to it. The further criticism is that the
arbitrator failed also to appreciate the fact that the employees
had
the onus to prove that they had been employed, as well as the
existence of a dismissal, all of which had always been in dispute.
See
Lewis and Another v Contract
Interiors CC
(2001) 22 ILJ 466 (LC);
Ngcobo and Others v Blyvooruitzicht Gold
Mining Co. Ltd
(1999) 20 ILJ 1996
(LC);
Sappie Kraft (Pty) Ltd t/a
Tugela Mill v Majake N.O. and Others
(1998) 19 ILJ 1240 (LC).
9.
Mr Snyman submitted that the failure by the
arbitrator to even record all the evidence which was placed before
her was a gross irregularity
and a clear indication of her
fundamental failure to apply her mind to the facts before her.
Consequently, the arbitrator’s
award being neither in
accordance with or supported by the bulk of the evidence properly
before it, is irregular, unreasonable
and unjustifiable. All
evidence shows that the employees signed one-day contracts of
employment, each of which expired on
each of the days that they were
contracted for. Where there is no evidence, either by way of a
letter of dismissal or any
particulars given by the employees
concerning an alleged dismissal on 22 August 2000, and where there is
no evidence by any of
the employees that they in fact worked on a
continuous basis from the end of June/beginning of July until 22
August 2000, their
purported date of dismissal, it is totally
unreasonable for the arbitrator to record, as she did, that all the
employees worked
from either 29 June or 3 July until 22 August 2000
when they were dismissed. Further, argued Mr Snyman, if, as
they allege,
the employees were permanent as from either 29 June
and/or 3 July 2000, why did they apply for positions as part of the
programme
on 18 and 20 and 19 and 21 July 2000? This is an
inconsistency that should have been taken into account by the
arbitrator,
and to the extent that she did not do so, to that extent
it shows that she did not apply her mind at all to this evidence and
therefore
acted in an irregular, unreasonable and unjustifiable
manner.
10.
Mr Snyman further argued that the
arbitrator misdirected herself by concluding that because the
Applicant “
allowed”
the employees to work beyond their initial one-day contracts the
Applicant had created a “
legitimate
expectation”
that their services
would not be terminated without due process. This was a
misdirection because it was never the contention
of the employees
that they had been employed as “
casual”
employees who had developed an expectation of being classified as
permanent employees. At all material times they had been
contending that they had been appointed as permanent employees and
were dismissed without reason or process. Mr Snyman also
contended that in any event, section 186 of the Act does not provide
for alleged legitimate expectation of due process. It
provides
for an expectation of continued employment. Where the employees
themselves contend that they were permanent employees
from the
outset, there can be no room for arguing that they had an expectation
of continued employment. Mr Snyman finally
submitted that in
none of the responses in their answering affidavits do the employees
in any way contradict the factual averments
made on behalf of the
Applicant. To that degree, therefore, such factual evidence
must be accepted as uncontradicted evidence.
11.
Mr Ndzimande, on behalf of the employees,
did no more than merely state to me that they were permanently
employed because their
employer had told them so. According to
him, the company had given them application forms and had told them
that they were
being employed permanently. He provided as
“
proof”
that they had been employed the fact that they had referred their
matter to the CCMA. In his argument, he asked a question
as to
how they could have been before the CCMA if they had never been
employed. He argued that the matter should not revert
to the
CCMA but must be dealt with to finality in this Court and he made a
prayer for compensation and reinstatement.
12.
On the evidence before me, and on the
documentation provided, there is no support for any of the
contentions made by Mr Mdzimande
on behalf of himself and his
colleagues. I find as a matter of fact and law that the
arbitrator’s award cannot stand.
It is reviewable and
must be set aside.
Insofar
as the arbitrator, in ordering compensation to be paid, does not
appear to be motivating or giving reasons for its compensation
award,
this constitutes an irregularity, rendering its award reviewable,
argued Mr Snyman. Mr Snyman referred me to a number
of
authorities in support of his submission that it is incumbent upon an
arbitrator to properly motivate a determination of the
quantum of
compensation to be awarded in favour of a successive party.
La
Vita v Boymans Clothiers (Pty) Ltd
(2001) 22 ILJ 454 (LC);
Zeelie v
Price Forbes (Northern Province)
(2001)
(1) 22 ILJ 2053 (LC);
Alpha Plant
and Services (Pty) Ltd v Simmonds and Others
(2001) 22 ILJ 359 (LAC).
13.
It is not necessary for me to refer to any
of the authorities quoted to me by Mr Snyman to any great length.
I accept that
in the view that I have taken of the matter, the
arbitrator did not exercise her discretion judiciously in her award
of compensation
for all the reasons submitted by Mr Snyman. In
the result, the order is as follows:
(a)
The award of the First Respondent, being
Commissioner Mbileni of the Second Respondent, under Case No. GA
108298, dated 13 May 2001,
in the arbitration proceedings between the
Applicant and the Third and Further Respondents is hereby reviewed
and set aside;
(b)
The finding that “
the
dismissal of the Applicants was unfair”
in the award of the arbitrator is substituted by a finding that none
of the Third and Further Respondents were employed by the
Applicant,
and the CCMA accordingly has no jurisdiction to entertain the matter;
(c)
The order of compensation is substituted by
the order that there is no compensation due to any of the Third and
Further Respondents.
___________________________
D B NTSEBEZA
ACTING
JUDGE OF THE LABOUR COURT
Date
of hearing:
25 July 2002
Date
of Judgment: 27
AUGUST 2002
For
the Applicants:
MR SNYMAN
On
behalf of Snyman van der Heever Heyns
Isle
of Houghton, Harrow Court 1
Boundary
Road, Houghton
P O
Box 280 Parklands, 2121
For
Respondents:
MR S D MDZIMANDE
On
behalf of
MDIDIMA & OTHERS
Extension
7A, Orange Farm
P O
Box 12156 Orange Grove, 1805