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[2008] ZALCJHB 40
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Ambigee v Commission for Conciliation Mediation And Arbitration and Others (JR717/06) [2008] ZALCJHB 40 (27 March 2008)
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Certain
personal/private details of parties or witnesses have been
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IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. : JR 717/06
In
the matter between:-
BEARAM
AMBIGEE
Applicant
and
THE
COMMISSION FOR
CONCILIATION,
First
Respondent
MEDIATION
AND ARBITRATION
COMMISSIONER
N. MASEKO
N.O.
Second
Respondent
JUTA
BOOKS
Third
Respondent
JUDGMENT
RAMPAI,
AJ
[1]
These proceedings are about a review application. The applicant
applies to have the arbitration
award, issued by the second
respondent acting under the auspices of the first respondent in
Johannesburg on 27 February 2006 under
case number GAJB 20252/05,
reviewed and set aside. Only the third respondent opposes the
application. The first and
the second respondents abide.
[2]
The third respondent’s principal place of business is situated
at Mercury Crescent, Wetton, Cape
Town, Western Cape. The third
respondent carries on business in the publishing industry and its
operations include the selling
of books to its customers. Its
business is characterised by seasonal peaks and troughs. It has
several bookshops in
and around Johannesburg.
[3]
The applicant is an [……] of […….].
She previously worked for Picsie
Books also in Johannesburg.
Early during February 2005 she approached the third respondent at its
Johannesburg bookshop.
There she had a meeting with Mr. Andrew
Cruickshank, the bookshop manager. She enquired about
employment opportunities with
the third respondent. After that
initial meeting she left without clinging any deal. A few days
later, on 21 February
2005 to be precise, she again visited the
bookshop. She informed Mr. Cruickshank that she had resigned
her employment with
Picsie Books. At that stage the bookshop
was experiencing a seasonal peak. On account of such upswing in
the third
respondent’s sales operations, the manager needed an
additional orders clerk.
[4]
In the circumstances the bookshop manager employed the applicant from
22 February 2005. The applicant
was employed as orders clerk by
the third respondent at its bookshop in the Carlton Centre,
Commissioner Street, Johannesburg.
Her contract of employment
was temporary. In that capacity she earned R6 400,00 per
month. The applicant’s employment
with the third
respondent terminated on 31 July 2005. During that period her
fixed term contract was twice extended.
The duration of each
extended term of employment, was one month. Towards the end of
July 2005 the third respondent informed
the applicant that her
services would no longer be needed after 31 July 2005.
[5]
On 1 August 2005 the applicant referred a labour dispute to the first
respondent. She alleged
that she had been unfairly dismissed.
The dismissal, she alleged, was procedurally and substantively
unfair.
[6]
The first respondent appointed a commissioner to conciliate the
dispute. The third respondent
did not attend the conciliation
hearing. On 29 August 2005 the conciliator issued the
certificate of outcome. The applicant
then requested that the
dispute be referred for arbitration. Her request was granted.
[7]
The first respondent then appointed the second respondent to
arbitrate the dispute. The arbitration
proceedings were held on
21 February 2006. The applicant appeared in person. Ms M.
Kingma, a group human resources
manager, appeared for the third
respondent. Having heard the evidence, Commissioner N. Maseko
reserved his decision.
[8]
On 27 February 2006 the second respondent issued an award which reads
as follows:
“
It
is my finding that the dismissal did not occur. The matter is
accordingly dismissed.”
Vide
paragraph 6 award.
[9]
It is the aforesaid award which aggrieved the applicant and which I
am now called upon to review and
to set aside. There are three
grounds of review. The first ground is that the arbitrator
committed an irregularity
in that he failed to have the arbitration
proceedings mechanically recorded. The second ground is that
the arbitrator committed
an irregularity in that he refused to grant
the applicant a postponement thereby denying her a fair hearing.
The third ground
is that the commissioner committed a misconduct in
that the award was not rational.
[10]
It was the employee’s case that during her interview for
employment she was offered permanent employment
on condition she
served a two months probation period. However, the third
respondent put up the defence that the applicant
was offered
temporary employment and that at no stage was she ever offered
permanent employment on condition she served a probation
period.
Therefore the issue which the commissioner had to determine was the
status of the employment relationship between
the parties.
[11]
The commissioner was not impressed by the applicant’s
contention. He dismissed it and upheld the contention
of the
third respondent. He reasoned that the version of the third
respondent was more probable than that of the applicant.
His
critical finding was that the applicant was not unfairly dismissed as
she alleged and that her fixed term contract simply came
to an end.
The applicant was aggrieved by the findings.
[12]
I proceed to examine the facts and to analyse the evidence in order
to ascertain whether the applicant has made
out a case which
justifies the review of the arbitration award. The first ground
of the review relates to the refusal to
postpone the arbitration
hearing. The applicant puts it as follows:
“
18.
I submit that I made a formal request at the commencement of the
proceedings that the 2
nd
Respondent postpone the matter as I intended to find a representative
who would represent me after the one whom I secured disappointed
me
at the 11
th
Hour but the 2
nd
Respondent declined my request saying he did not have time to play
and he was proceeding with or without his tape recorder which
he
could not find.”
[13]
The third respondent denies the allegation. Its response was as
follows:
“
51.2
It is denied that the Applicant at any stage requested a postponement
of the arbitration proceedings. As
noted above, the
Commissioner offered the Applicant a postponement, but the Applicant
insisted that the arbitration proceedings
continue.”
[14]
The arbitrator’s notes are silent on this issue. The
arbitrator noted nothing concerning the alleged
request for a
postponement.
[15]
In her statement of claim the applicant did not raise the complaint
that she applied for a postponement in order
to get the services of
another representative and that her application was refused.
Her original founding affidavit was made
on 30 March 2005. The
issue surfaced in the supplementary affidavit she made on 1 June
2006, some 14 months later.
In its answering affidavit the
third respondent alleged that the applicant did not make any
application for the postponement of
the arbitration hearing.
[16]
There are three indicators which tend to support the third
respondent’s averment. Firstly, such a complaint
emerged
in the supplementary affidavit for the first time. Secondly,
even in her supplementary affidavit the applicant did
not state what
the third respondent’s attitude was towards her application.
Thirdly, she did not give any explanation
why the arbitrator refused
her application for postponement.
[17]
Moreover she did not mention any reasons advanced by the third
respondent for opposing her application if the third
respondent ever
opposed it. The fact that the arbitrator’s notes are also
silent about the matter, gives credence to
the third respondent’s
argument that no such an application was presented to the
arbitrator.
[18]
The applicant complains that:
“
... At the
commencement of the proceedings it was in the eyes of the second
respondent that the parties before him were not balancing
in terms of
representation...”
What
the applicant was trying to convey here, was that she did not have a
fair hearing because she was not represented by someone
knowledgeable
in labour law matters as compared to the third respondent. I
have already found that the applicant, who claimed
that she was left
in the lurch in the eleventh hour by her representative, did not
apply to have the matter postponed for that
reason. Through her
conduct, therefore, she declared herself able and willing to proceed
with the hearing on her own.
[19]
Her complaint that she was forced to proceed by the arbitrator, who
compelled her to proceed against her will,
but shyed away from his
prime responsibility to explain the arbitration process and to guide
her along the way, fails to impress
me. I am inclined to find
that she was not forced to proceed with the hearing against her
wish. It follows, therefore,
that her first ground of review
cannot succeed. I am satisfied that the arbitrator did not
commit any irregularity as alleged
by the applicant.
[20]
The second ground of review relates to the recording of the
proceedings. The applicant complained that the
arbitrator
unilaterally commenced with the proceedings without mechanically
recording them. She alleged that the arbitrator
could not find
his recorder and that he decided to record the proceedings by long
hand without first canvassing the views of the
parties relating to
the problem.
Vide
par. 17 of the supplementary
affidavit, p. 22 of the record.
At
par. 19 thereof the applicant states the following:
“
19.
After finding his tape recorder he became even more furious when the
batteries of that tape recorder
failed him.”
[21]
The third respondent denies the applicant’s claim. Its
response was formulated as follows:
“
22.
At the commencement of the arbitration the Commissioner informed the
parties that he would not be able
to record the arbitration
proceedings mechanically and enquired whether the parties had any
objection to proceeding in the absence
of a mechanical recording.
Both the Applicant and I, on behalf of the Third Respondent, informed
the Commissioner that we
were willing to proceed in the absence of a
mechanical recording of the proceedings.”
[22]
Once again the arbitrator’s notes are silent about the
recording problem. Once again the issue cropped
up for the
first time in the supplementary affidavit. It appeared nowhere
in the original founding affidavit of the applicant.
It is not
the applicant’s case that she objected to the manual recording
of the proceedings and that the arbitrator overruled
her. It
may therefore be argued that she tacitly condoned the method used by
the arbitrator to record the proceedings.
Her complaint is
disputed by the third respondent. According to the third
respondent’s deponent the arbitrator informed
the parties about
the problem of recording the proceedings mechanically. The
contention of the third respondent that the
arbitrator noted the
proceedings by long hand with the express consent of the parties is
more persuasive to me. Therefore,
I find that the arbitrator
did not commit the irregularity as alleged by the applicant.
Accordingly, the second ground of
review fails.
[23]
The third ground of review was that the decision of the arbitrator
was not rationally justifiable. The version
of the applicant
was narrated by the applicant herself. Briefly stated her
evidence was that she was a permanent employee
of the third
respondent and that she was unfairly dismissed. The dismissal,
she said, was both procedurally and substantively
unfair.
[24]
The employer’s response was narrated by its bookshop manager,
Mr. Andrew Cruickshank. Briefly stated,
its response was that
the applicant was a temporary employee and not a permanent employee,
as she claimed. The third respondent
relied on written
documentation in support of its case. Its witness vehemently
denied that he made an oral offer or promise
to the applicant for
permanent employment. He denied the claim that the third
respondent dismissed the applicant and averred
that the applicant’s
fixed term contract came to an end.
[25]
The arbitrator analysed the evidence and found that the version of
the applicant was more probable than that of
the applicant; that the
third respondent’s witness never offered the applicant any
permanent job; that the applicant was
bound by the fixed term
contracts and that the applicant had not been dismissed from
employment as she had claimed.
[26]
The version of the third respondent, as fully set out in its
answering affidavit, is uncontested. The applicant
did not file
a replying affidavit. Therefore, wherever there is conflict
between the two versions, the version of the third
respondent must
prevail. See
PLASCON EVANS PAINTS LTD v VAN RIEBEECK
PAINTS (PTY) LTD
1984 (3) 623 (AD). The
applicant claims that at her first interview Mr. Andrew Cruickshank
promised her permanent
employment. Apparently the promise was
made in the presence of two persons, namely, a certain M. Farreire
and a certain Ms
Vanessa Bodrick. But she did not call these
possible witnesses to give evidence on her behalf. This was
important because
the employer testified first and denied such an
oral offer.
[27]
As regards the three fixed term contracts her evidence was that she
was made to sign these three written temporary
contracts to make up
for the two months probation period she was obliged to serve.
The arbitrator was not impressed by this
argument. So am I.
The very first problem I have with the alleged probation story is
that the total length of the three
contracts was approximately 5.25
weeks, in other words, some 3.25 months longer than the alleged
probation period of 2 months.
The arbitrator found that the
applicant had failed to prove the existence of the oral offer for
permanent employment and that she
was bound by the written fixed term
contract which expired on 31 July 2005. I am satisfied that the
documentary evidence
presented to the arbitrator by the third
respondent, strongly militates against the applicant’s version.
[28]
The documentary evidence which the arbitrator referred to during the
course of his reasoning consisted of the following:
28.1 A
temporary employment contract dated 17 March 2005 which makes it
clear that the third respondent appointed the applicant
on a
temporary basis as an orders clerk as from 22 February 2005 to 31 May
2005. This was the first fixed term contract of
employment.
28.2 A
temporary employment contract dated 31 May 2005 which also makes it
clear that the third respondent appointed the applicant
on a
temporary basis as an orders clerk with effect from 1 June 2005 to 30
June 2005. This was the second fixed term contract.
28.3 An
application for a letter of employment dated 5 July 2005 which shows
the date of engagement as 5 July 2005 to 31 July
2005 and states
clearly that there was no expectation of continuation despite
renewal.
[29]
The first and the second fixed term contracts contained the following
caveat:
“
CONFIRMATION
OF TEMPORARY NATURE OF EMPLOYMENT
By accepting the
appointment you agree that your appointment is temporary and lapses
automatically at the expiry of the contract
period unless it is
renewed and signed by both parties before hand. You further
agree that you shall not entertain any expectation
of renewal or
extension of the contract or
re-appointment
to any position including permanent position
.
Any extension of the contract shall be at management’s sole
discretion and shall not be construed as an indication
or promise of
further renewal. To be valid any renewal must be in writing and
signed by both parties.....”
These
temporary contracts of employment were signed by the applicant.
[30]
The applicant carried the onus to prove that there had been a
dismissal. This averment was disputed by the
third respondent.
The applicant admitted that she had signed the fixed term contracts
and understood the temporary nature
and fixed duration of her
employment as clearly stated in the contracts. Her signature
notwithstanding, her exculpatory contention
was that she had been
promised a permanent appointment. This too was denied.
[31]
The evidence presented on behalf of the third respondent was that no
such promise was made and that it could not
have been made when
permanent members of staff were facing retrenchment. Such
members of staff who were retrenchment had
been in the employ of the
third respondent for a considerable period of time. The third
respondent’s evidence that
it could only offer the applicant
fixed term contracts on account of its seasonal upswing in its
operations, is persuasive.
[32]
The applicant took up another employment with the third respondent
from 22 February 2005 while she was still legally
an employee of
Picsie Books. She certainly knew that what she was doing was
wrong. This knowledge prompted her to send
an untrue message to
Picsie Books to the effect that she was ill disposed while in trust
and in reality, she was not. This
has a direct bearing on her
allegation that she was made to sign the fixed term contracts under
the pretext that it was necessary
to do so in order to make up for
her probation period. But the three temporary contracts she
signed make no mention of a
probation period. The third
respondent denies her claim that the temporary contracts was intended
to serve as a probation
period in anticipation of a permanent
appointment.
[33]
The applicant has shown herself to be an untrustworthy witness.
The third respondent has denied the applicant’s
allegations
pertaining to the recording of the proceedings, the postponement
application, as well as the probation period and now
the promise for
permanent employment. The applicant was entitled to rebut all
these denials by way of a replying affidavit.
She chose not to
do so. In the circumstances it has to be accepted that the
version of the third respondent is the most probable
and credible
version.
[34]
The applicant merely raised as an issue in her heads of argument an
allegation that the third respondent was not
in the process of
retrenching employees. It must be accepted that the third
respondent was indeed in the process of retrenching
some of its
permanent employees. The applicant did not present any evidence
to the arbitrator why the employer’s evidence
in that respect
was untrue. The arbitrator accepted the evidence of the third
respondent in this regard. I am not persuaded
that he was wrong
in doing so.
[35]
The applicant commenced working for the third respondent on 22
February 2005 while she was still in the books of
another employer.
She signed the first fixed term contract with the third respondent on
17 March 2005, for almost three weeks
she had been absent from her
previous employer under false pretences. According to her
founding affidavit she resigned from
her previous employment on 18
March 2005. It is blatantly clear that when she resigned, there
was absolutely no written indication,
whatsoever, that the first
fixed term contract was a prelude to her permanent appointment.
[36]
In her statement of claim she did not aver any promise of permanent
appointment. Instead, she averred that
“she was made to
believe that she was at all times a permanent employee”.
Such belief apparently emanated from
an oral promise which was
disputed by the third respondent. She claimed she had two
witnesses but made no effort to explain
why she could not annex any
confirmatory affidavits from them or why they did not testify during
the arbitration hearing.
[37]
The applicant attempted to rely on annexure “AB4” dated 5
July 2005 as proof of a promise for permanent
appointment.
Indeed the form appears to be a document used by the third respondent
in connection with permanent appointment.
But it is not so much
the matter of form but substance that counts. In relation to
the question in the form which requires
any additional comments or
specific unusual terms of employment, the following is stated by hand
in the printed form:
“
There shall
be no expectation of continuation despite renewal.”
The
contention by the applicant that the form in itself substantiates the
promise of permanent appointment is indeed without substance,
as Mr.
Maenetje submitted.
[38]
In the absence of proof by the applicant that she reasonably expected
the third respondent to renew the fixed term
contract for the third
time after its expiry on 31 July 2005, the arbitrator could not have
been justified had he found that the
applicant was dismissed.
The only legitimate conclusion justified by the evidence was that the
applicant had not been dismissed
but that her fixed term contract was
simply terminated by effluxion of time.
[39]
Section 186(1)
of the
Labour Relations Act, No. 66 of 1995
, provide
that dismissal means:
“
(a)
...........
(b)
an employee reasonably expected the employer to renew a fixed term
contract of employment on the same or similar
terms but the employer
offered to renew it on less favourable terms, or did not renew it;”
An
alleged promise of permanent appointment does not fall under
section
186(1)(b).
See
DIERKS v
UNIVERSITY OF SOUTH AFRICA
[1999] 4
BLLR 304
(LC) par. [137] to [138];
AUF
DER HEYDE v UNIVERSITY OF CAPE TOWN
[2000] 8 BLLR 877
(LC) par. [17];
MALANDOH
v SABC
[1997] 5 BLLR 555
(LC);
UNIVERCITY OF CAPE TOWN v AUF DER
HEYDE
[2001] 12 BLLR 1316
(LAC)
par. [20] where the issue was raised but not decided. The
applicant attempts for the first time in her heads of argument
to
make out a case of dismissal in terms of
section 186(1)(b).
It
is impermissible.
[40]
It is not open for a party to attempt to make out a case in the heads
of argument which was not made out on papers
or to argue a
proposition on new facts embodied in the founding affidavit which
were not presented earlier to the arbitrator.
RUSTENBURG
PLATINUM MINES (PTY) LTD v CCMA & OTHERS
[2004] 1 BLLR 34
LAC par. 15. No evidence was led before the arbitrator by the
applicant to show that, taking into account all the facts,
it could
reasonably be said that she had a subjective expectation that her
fixed term contract would be renewed or that she would
be offered a
permanent employment at the end of such contract. As I see it,
the arbitrator committed no misconduct as alleged
by the applicant.
There was a rational connection between the conclusion he reached and
the evidence presented to him.
It follows therefore that the
third ground of review must also fail.
[41]
In all the circumstances of this matter I have therefore reached the
conclusion that no case has been made out
to justify any interference
with the arbitrator’s decision by way of a review of the award
he issued in Johannesburg on 27
February 2005 under the aforesaid
case number.
[42]
Accordingly I make the following order:
1. The review
application is dismissed.
2. The applicant is
ordered to pay the costs relating to this application.
_______________
M.H.
RAMPAI, AJ
HEARD
:
23
February 2007
DELIVERED
:
27
March 2008
On behalf
of applicant:
Mr. T.A. Ntela
Instructed
by:
National Contract Workers Union
JOHANNESBURG
On behalf
of first and the second
respondents:
No appearance
On behalf
of third respondent:
Adv. N.H. Maenetje
Instructed by:
Cliffe Dekker Inc
Jozi
R van Voore
CAPE TOWN
sp