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[2009] ZALCJHB 5
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Big Sky Coaches v Mothupi NO and Others (JR1370/04) [2009] ZALCJHB 5 (25 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE NO: JR1370/04
IN
THE MATTER BETWEEN:
BIG
SKY COACHES
APPLICANTS
AND
MOTHUPI,
T
N.O.
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
MARUMO
STEVEN
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the First Respondent (the
Commissioner) under case
number FS1949-03 dated 20
th
April 2004. In terms of that award the Commissioner found that the
Third Respondent (the employee) to have been unfairly dismissed
by
the Applicant.
Background facts
[2]
It is common cause that the employee was
employed as a bus driver of the Applicant prior to his dismissal. At
the arbitration hearing
the parties were in dispute about the nature
of the employment contract. The Applicant contended that the employee
like most of
its employees was employed on a temporary contract in
terms of which his services would be engaged as and when work was
available.
The work was allocated to any of the drivers who would be
available at the Applicant’s premises on any particular.
[3]
The person responsible for allocating trips
to be undertaken by the available drivers was the traffic manager, Mr
Mitchel. According
to the Applicant trips for driving would not be
allocated to a person who is not present at the time the allocation
is made and
drivers were paid only for the trips actually undertaken.
These trips are allocated on the basis of “
first
come first serve”
and no
disciplinary action would be taken against any driver who does not
present himself at the Applicant’s premises for
work
allocation.
[4]
The employee was however disciplined for
reckless and negligent driving during January 2003, was found guilty
and dismissed. The
dismissal was reversed at the appeal hearing on
the ground that the dismissal was a severe sanction. The dismissal
was replaced
with a final written warning which meant that, the
casual employment relationship, on the version of the Applicant
continued.
[5]
During February 2003, another employee, Mr
Struis was disciplined and dismissed for fraudulently claiming
kilometres he never travelled.
According to the Applicant, the
employee was also implicated into forging his travel claims during
that hearing.
[6]
After the outcome of Struis disciplinary
hearing Mitchel informed the employee that disciplinary proceedings
would be instituted
against him and no work would be allocated to him
pending the finalization of the hearing. This was the last time the
Applicant
heard from the employee and thus assumed that he was no
longer interested in his employment. The next time the Applicant
heard
from the employee was when it received the CCMA papers.
[7]
The employee’s contention is that he
was an employee of the Applicant and employed as such in terms of
section 213
of the
Labour Relations Act 66 of 1995
, read with
section
1
of the
Basic Conditions of Employment Act 75 of 1997
.
[8]
The version of the employee is that he
travelled on duty to Cape Town on 9
th
March 2003 and returned on the 10
th
March 2003. He was off duty on the 11
th
March 2003. When he returned to work on the 12
th
March 2003, he was summoned to the office of Mitchel where he was
told that there was no more work for him and that his services
were
terminated. According to him his insistence that he be given the
reason for the dismissal did not help as Mitchel insisted
that he was
dismissed.
The grounds for
review and the award
[9]
The grounds for review upon which the
Applicant attacks the Commissioner’s award are based on the
complaints that he:
·
did not determine the evidence before him
in a reasonable and justifiable manner.
·
failed to have regard to the nature of the
employment relationship between the parties.
·
failed to have regard to the probabilities
in the version which were before him.
·
drew a negative inference against the
Applicant without affording the opportunity to rebut information upon
which the Commissioner
based such inference.
·
failed to provide reasons for his twelve
months compensation.
·
failed to correctly construe the true
nature of the dispute before him.
[10]
After ruling on the
locus
standi
and the application for his
recusal (these two issues are not subject of this review), the
Commissioner proceeded to deal with
both the procedural and
substantive nature of the dismissal.
[11]
In as far as procedural fairness is
concerned the Commissioner found that the Applicant had failed to
adduce evidence as to the
date when the employee was notified of the
disciplinary hearing and also as to when did the hearing take place.
The Commissioner
further found that the Applicant failed to produce
the notice which the employee refused to sign as an acknowledgment of
receipt
of notice of the disciplinary hearing.
[12]
It was on the basis of the above that the
Commissioner rejected the version of the Applicant that the employee
left on his own accord.
The Commissioner made this finding after
noting that the employee was to have been charged with misconduct
related to dishonesty.
[13]
After finding that the Third Respondent was
indeed dismissed the Commissioner proceeded to determine the
procedural and substantive
fairness of the dismissal.
[14]
The Attorney for the Third Respondent
initially argued that the Commissioner was entitled to determine the
issues of procedural
and substantive fairness on the basis of the
evidence led concerning the issue of whether or not there was a
dismissal. He contended
hat the approach adopted by the Commissioner
was justified by the fact that the evidence before him indicated very
clearly that
there was no hearing before the dismissal. However when
invited to address the Court as to whether the approach would be
correct
as concerning the substantive fairness he conceded that it
would not. In other words the Commissioner failed in his duties when
he did not conduct the enquiry as to the substantive fairness of the
dismissal. In the absence of an agreement between the
parties
authorising him to use the evidence led during the enquiry as to
whether there was a dismissal, the Commissioner could
not use that
evidence to determine the substantive fairness of the dismissal.
[15]
When invited to address the Court as to
what should be made of the intervention of the Commissioner at page
1014 of the transcript,
the Third Respondent’s attorney
initially contended that that issue was not before the Court because
it was not raised by
the Applicant as a ground for review. The
Commissioner intervened and stopped the Applicant’s
representative from cross-examining
the Applicant’s witnesses
regarding the issue of the true nature of the employment
relationship. The argument relating to
the above issue was not
pursued further when the Court invited the Third Respondent to
address the connection between the intervention
and the complaint by
the Applicant that the Commissioner failed to have regard to the
nature of the employment relationship between
the parties.
[16]
In my view, the Commissioner misconstrued
the nature of the investigation he needed to conduct and thereby
committed a gross irregularity.
The Commissioner failed to appreciate
that whilst he has wide powers to determine the process to follow in
conducting the arbitration
proceedings in terms of section 138 of the
Labour Relations Act 66 of 1995 (the LRA), he had to exercise such
powers in a manner
that ensures that fairness prevails. Fairness can
not prevail where the Commissioner exercising his powers under
section 138 of
the LRA, designs a process that prevents the parties
from ventilating the material issues. The Commissioner by preventing
the Applicant’s
representative from cross-examining the Third
Respondent on the true nature of the relationship prevented a fair
and full ventilation
of the issues for determination by him.
[17]
The other issue that arises in this matter
is that the Commissioner misconstrued the case which was put before
him. He misconstrued
the version of the Applicant which was never
that the Third Respondent was summoned to a disciplinary hearing or
given notice to
attend the disciplinary hearing but that he was
informed that the disciplinary hearing against him would be
instituted. It was
further the case of the Applicant that pending the
finalisation of the disciplinary hearing no work would be allocated
to the Third
Respondent.
[18]
It is trite that the duty to show the
existence of a dismissal rests with the employee. In the present
instance had the Commissioner
applied his mind and appreciated the
task before him he ought to have found that the Third Respondent had
on the balance of probabilities
failed to discharge his duty of
showing the existence of the dismissal.
[19]
The Commissioner was faced with two
competing versions. The version of the Applicant was that he was
dismissed by Mitchel, whereas
the Applicant’s version on the
other hand was that he was never dismissed but simply told that no
work would be allocated
to him pending the disciplinary action.
[20]
The version of the Third Respondent is on
the balance of probabilities not sustainable, in particular having
regard to the inconsistencies
in his version. There is a fair amount
of fabrication of the facts by the Third Respondent. In his answering
affidavit he states
that Mitchel told him “
you
are fired.”
This is not supported
by the transcript of what transpired at the arbitration hearing.
[21]
The transcript reveals the Third Respondent
having stated during examination in chief that:
“…
I
then said I didn’t know what happened. He just got me aside and
said that my duties have been terminated (sic) since and
then came to
the union I told them that my services has being terminated (sic).
They asked me where the charge sheet was. I told
them that I was then
dismissed, he then filed a case with the CCMA.”
[22]
When asked during examination in chief
whether he could remember any person who could have been present when
told that was dismissed
the Third Respondent indicated a certain
Johannes Motshwane was present and that he would be calling him as a
witness to confirm
his version. Motshwane was never called as a
witness to confirm the version of the employee. This is the version
presented by the
employee during evidence in chief. Earlier on when
asked during evidence in chief what happened on 12
th
March 2003, the employee, states that he had left for Cape Town on
the 9
th
March 2003 and came back on 10
th
March 2003 and was off duty on 11
th
March 2003. He further states:
“
I
went back to work on 12
th
to look at trips while I was busy looking at the board where the
trips are booked… so… (inaudible) called me aside
he
said telling me that I should leave and I asked him why …
(inaudible).”
[23]
The other version of the Third Respondent
as put by his representative was that he was suspended by Mitchel. He
persisted with this
version even when the Commissioner put to him
that he did not remember the Third Respondent saying that he was
suspended by Mitchel.
[24]
In the light of the above, it is my view
that had the Commissioner applied his mind and appreciated the task
before him, he ought
to have found that the employee had failed to
show that he was dismissed. And in this regard, the Commissioner
ought to have found
that the Second Respondent did not have
jurisdiction to entertain the dispute.
[25]
In my view, in the circumstances of this
case it would not be fair to grant costs.
[26]
In the circumstances the arbitration award
of the Second Respondent issued under case number FS1949-03 dated 20
April 2004, is reviewed
and set aside.
[27]
The arbitration award is substituted with
the following:
“
(a)
The Applicant, Mr Marumo Steven, was not dismissed.
(b)
The CCMA does not have jurisdiction to entertain the Applicant’s
disputes, and accordingly the claim
is dismissed.”
_______________
Molahlehi
J
Date
of Hearing :
17
th
February 2009
Date
of Judgment :
25
th
February 2009
Appearances
For
the Applicant :
Mr S Snyman of Snyman Attorneys
For
the Respondent: Mr M Lehong
of Medupi Lehong Incorporated