About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2009
>>
[2009] ZALCJHB 58
|
|
Gretev (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR250/07) [2009] ZALCJHB 58 (10 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 250/07
In
the matter between:
GRETEV
(PTY) LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
& ARBITRATION (LIMPOPO)
First
Respondent
MANNDE,
CHRISTOPHER N.O
Second
Respondent
CURRAN,
WILLIAM KAY
Third
Respondent
JUDGMENT
BHOOLA
AJ:
Introduction
[1]
This is an application to review and set aside the arbitration award
made by the second respondent (“the arbitrator”)
acting
under the auspices of the first respondent, on 26 December 2006 under
case number LP3394/06 in terms of which the third
respondent’s
dismissal was found to have been both substantively and procedurally
unfair.
Background
[2]
The third respondent was employed by the applicant as Facility
Manager at the University of Limpopo (‘the client”).
It is common cause that third respondent resigned on 1 June 2006, and
his resignation was accepted by the applicant on 12 June
2006.
[3]
All the parties were aware that the position of Facility Manager had
been advertised and that a selection process was under
way.
[4]
On 29 June 2006, as a result of a request from the client, the third
respondent was persuaded to retract his resignation. He
understood
that this meant that he resumed his position. However, he was
informed the next day that the position had been filled.
He
accordingly declared a dispute claiming that he had been unfairly
dismissed.
[5]
The arbitrator concluded that the parties had entered into an
agreement which renewed the third respondent's contract for the
period 1 July to 31 December 2006. He further found that as a result
of the conclusion of the agreement, the third respondent was
dismissed and that such dismissal was both substantively and
procedurally unfair.
Grounds
of review
[6]
The applicant submits that as it was common cause between the parties
that the third respondent resigned and that his resignation
had been
accepted by his employer, he bore the onus of proving that a new
contract of employment had been concluded between the
parties.
Notwithstanding his failure to establish all the requirements
relating to conclusion of a valid contract, the arbitrator
found that
a contract had been concluded between the parties. This conclusion
was not justified and was in the light of the evidence,
unreasonable
in that the arbitrator,
inter alia,
confused the issue of "acceptance" which is a requirement
for a valid contract to come into being, with the issue of
"awareness" on the part of the applicant that the third
respondent was willing to retract his resignation. It was clear
from
the evidence that there had been no acceptance of the third
respondent’s withdrawal of his resignation, nor was there
a new
agreement concluded between the parties. It was clear from the second
meeting between the applicant and third respondent
on 29 June 2006
that the applicant was informed that the third respondent was willing
to withdraw his resignation. The second respondent
understood this
"awareness" to be acceptance by the applicant of his
withdrawal of the resignation. This was clearly
not the case as can
be seen from the third respondent’s own evidence when he
confirmed that the applicant's Director would
revert to him the
following day.
[7]
The third respondent testified that the reason why the applicant
would revert to him the following day was,
"...
make sure that everything was in place..."
for him to continue in his position.
[8]
There was clearly no agreement concluded between the parties as there
was no finality given that the applicant would revert
to the third
respondent the following day regarding whether or not the position
was still available or whether it had been offered
to another
candidate.
[9]
Unfortunately, as is common cause between the parties, the position
had already been offered to another candidate who had accepted
the
offer. The applicant was therefore not in a position to offer that
position to the third respondent.
[10]
It was also common cause that the applicant, as promised at the
meeting of 29 June 2006, reverted to the third respondent the
following day and advised that the position had already been filled.
[11]
It is clear from the evidence, the applicant submitted, that no
contract of employment was subsequently concluded between the
third
respondent and the applicant after third respondent's resignation.
Hence the third respondent failed in discharging the onus
upon him
and his dispute should have been dismissed. In coming to the finding
that there was indeed a contract concluded between
the applicant and
the third respondent after the third respondent's resignation, the
second respondent misdirected himself to such
an extent, it was
submitted by the applicant, that justice does not appear to have been
done between the parties in that the arbitrator
committed a gross
irregularity.
[12]
Furthermore, the applicant submitted that the arbitrator erred in
awarding compensation to the third respondent (who did not
seek
reinstatement) for three months when the evidence was that he had
been unemployed for one month after his dismissal. Accordingly,
it
was submitted, the award of the second respondent stood to be
reviewed and set aside.
Third
respondent’s submissions
[13]
The third respondent submitted that there was no basis to set aside
the award of the second respondent either on the grounds
of
misconduct, gross irregularity or exceeding his powers as is required
under section 145 of the Labour Relations Act 66 of 1995
(“the
LRA”), or on the reasonableness test espoused in
Sidumo
& Another v Rustenburg Platinum Mines Ltd
& others (2007) 28 ILJ 2405 (CC)
.
[14]
The third respondent relies on a verbal contract of employment for
the period 1 July 2006 to 31 December 2006, concluded on
29 June and
which he contends was unilaterally terminated by the applicant on 30
June 2006. He submits that the evidence at the
arbitration
established that the third respondent's withdrawal of his resignation
had been accepted by Mr Trevor Pierce Jones (“Pierce
Jones”)
on behalf of the applicant and that the parties had agreed that third
respondent’s employment would continue
on the same terms and
conditions as before, until the end of December 2006.
[15]
The third respondent contends furthermore that Pierce Jones
communicated the withdrawal of his resignation to the client, Mr
Masoga (“Masoga”), and confirmed the continued employment
of the third respondent until end December 2006. He submits
that the
acceptance of the withdrawal of his resignation was unconditional.
[16]
Third respondent submits that on a proper construction of the
evidence, on a balance of probabilities, the second respondent
came
to the correct conclusion that a contract of employment had in fact
been concluded on 29 June 2006. The evidence to this effect
was
substantiated by Masoga, who was an independent witness, as well as
Ms Brayden, who was at that stage an employee of the applicant.
[17]
Third respondent submits that the evidence of Pierce Jones was
improbable in that it was inconceivable that he would not be
aware of
whether a key position had been offered to another individual or had
been accepted by such person on 29 June 2006 but
became aware of it
the next day. Furthermore, his evidence that the offer of continued
employment to the third respondent was conditional
upon the
availability of the position was contrary to the evidence of the
third respondent and Masoga. Furthermore, the applicant
did not
tender proof from the Human Resources Department to the effect that
the position had been offered to someone else and had
been accepted.
[18]
In calculating the compensation due to the third respondent as a
result of his procedural and substantive unfair dismissal
it was not
disputed that the relationship between employer and employee had
irretrievably broken down and that the third respondent
no longer
wished to be employed further by the applicant. The dispute was
finalised on 26 December 2006 and the third respondent’s
employment would in any event have terminated by the effluxion of
time on 31 December 2006. In calculating the compensation the
second
respondent was required by the provisions of section 194 (2) to award
compensation to a maximum of 12 months but subject
to the minimum
stipulated in section 194 (1) and accordingly the award of the second
respondent in this regard should be confirmed.
The
arbitration and award
[19]
The second respondent summarises the evidence of Masoga that he was
concerned about the third respondent’s resignation
and
expressed his view to the applicant that the that third respondent
should remain and continue the projects he had been involved
in. On
29 June 2006 Pierce Jones met with him and informed him that he would
ask the third respondent to withdraw his resignation.
Later that day
he was telephonically informed by Pierce Jones that he had succeeded
in getting the third respondent to retract
his resignation, and he
understood that this meant that the third respondent would stay on in
his current role until the contract
between the university and the
applicant ended on 31 December 2006. The following day he was
informed by Pierce Jones that the
third respondent would no longer be
employed by the applicant. He confirmed in cross examination that he
was aware that the applicant
had taken steps to seek a replacement
for the third respondent. Furthermore he confirmed “
that
Mr Pierce Jones phoned him and said that the Applicant withdrew his
resignation and that no condition was attached to his withdrawal”
(award, para 4.2.10).
[20]
The second respondent summarised the evidence of Ms Ilona Brayden
(“Brayden”) as follows: she was aware that the
third
respondent had tendered his resignation and he informed her and other
staff members of this in a meeting on 30 December 2006
(this is
incorrect – the arbitrator must have intended to refer to
June). She testified furthermore that the contracts of
all staff
members of the applicant had been extended until 31 December 2006.
[21]
The second respondent summarised the evidence of Pierce Jones as
being that the resignation of the third respondent was accepted
and
it was agreed that his last working day would be 30 June 2006. His
post was advertised in the local press and Pierce Jones
confirmed in
an e-mail to the client that efforts were being made to obtain a
replacement. He met with the third respondent on
29 June 2006 and the
latter indicated his willingness to agree to continue working on the
campus should an offer being made to
him. Pierce Jones informed him
that he would consult with the Human Resources Department to
establish how far the recruitment process
had gone and would revert
to him in this regard the following day. The next morning he became
aware that the offer that had been
made to another candidate had been
accepted and he contacted the third respondent and advised him
accordingly. He also testified
in cross examination that the third
respondent did not have a written contract because he had refused to
sign contracts of employment.
He confirmed that he had consulted with
his Managing Director with a view to persuading the third respondent
to remain in the applicant’s
employ because he was respected by
the client.
[22]
The third respondent’s confirmed in his evidence that on 29
June 2006 he informed Pierce Jones that he would withdraw
his
resignation, and the latter said he would inform Masoga. He had
agreed to continue working until the end of the year as the
contracts
of all staff members of the applicant had been renewed until then. He
informed his staff the following day that he would
remain in the
applicant’s employ until its contract with the client came to
an end in December. However, later the same day
he received a
telephone call from Pierce Jones informing him that the applicant was
not going to renew his contract and that the
position had been
filled. In cross examination he stated that he had understood that
the withdrawal of his resignation had been
confirmed by Pierce Jones
and also by the client.
[23]
The arbitrator states in his award that it was common cause between
the parties that the third respondent’s contract
(which had
been a verbal contract renewable on a monthly basis), had been
renewed on 1 July 2006 until 31 December 2006. The applicant
contends
that this was not common cause. It was the nub of the dispute and was
contrary to all the evidence presented.
[24]
Secondly, the arbitrator found on a balance of probabilities that
Pierce Jones informed Masoga that the applicant had withdrawn
his
resignation. This in fact was common cause and there was accordingly
no need to make a finding in this regard. The issue was
whether the
withdrawal of his resignation was accepted by the applicant and there
was a dispute of fact in this regard. The arbitrator
should have
enquired further into whether, on the evidence before him, the
understanding by the third respondent that the withdrawal
of his
resignation had been accepted was a common understanding. The
arbitrator also indicates that the applicant’s representative
in closing argument stated that the applicant did not enter into a
verbal contract with the applicant. He states: "
I
was not expecting this argument from the respondent. All the
contracts except one, the applicant entered with the respondent were
verbal contracts."
The applicant
submits that this is simply nonsensical.
[25]
Pierce Jones testified that there was no verbal contract concluded on
the afternoon of 29 June 2006, and confirmed that he
gave the
applicant “
an undertaking to
explore the human resources process that was underway regarding the
making of an offer and the acceptance thereof
by the alternate
candidate for the position of facilities manager on the university
campus”.
He stated further that
he did not have the authority to accept the withdrawal of the third
respondent's resignation and conclude
a new contract with him.
[26]
The arbitrator accordingly found that, on a balance of probabilities,
the third respondent was dismissed and that his dismissal
was both
procedurally and substantively unfair. In considering the extent of
the compensation to be awarded he states that the
applicant was
employed a month after he was dismissed and that ““
[H]e
lost a month’s salary and some minor inconveniences. I will
award three month’s compensation”.
Evaluation
of award and submissions
[27]
The applicant submits that the arbitrator made a gross error
concerning what was common cause between the parties and his finding
flowed from that. Accordingly, his finding is inexplicable. There was
no evidence on which he could have found that on a balance
of
probabilities there was a meeting of minds between the parties in
respect of the renewal of the contract. He therefore he failed
to
apply his mind to the evidence before him and to interpret the
evidence, which led to an incorrect finding. It was quite clear
that
the second respondent did not have regard to the evidence that
acceptance of the third respondent’s withdrawal of his
resignation was conditional on confirming whether an offer had been
made to someone else. This is apparent from his expression
of
surprise in his award that the applicant would argue that there had
not been a contract. He accordingly committed a gross irregularity
and could not by any stretch of the imagination have reached the
finding he did.
[28]
The Constitutional Court recently reaffirmed the requirements,
considered at some length in
Sidumo &
Another v Rustenburg Platinum Mines Ltd
& others (2007) 28 ILJ 2405 (CC) that a
commissioner is required to apply her mind
to the issues properly before and that failure to do so would result
in an arbitration
award being set aside. This requires
inter
alia
an assessment of the weight that
the arbitrator placed on factors that must be taken into account,
whether the decision is supported
by adequate evidence and adequate
reasons, and the existence of a sustainable, logical connection
between the two. This point
was made furthermore in the
unreported decision of my brother Van Niekerk J in
Maksal
Tubes v MEIBC and others
(Case number
JR 2450/07), where the court also reaffirmed the distinction between
a reasonableness enquiry and a process related
enquiry on the grounds
set out in section 145 of the LRA.
[29]
Mr Van As, the third respondent’s counsel, submitted that this
court should adopt a holistic attitude to determining
the
reasonableness of the award, alternatively whether any procedural
irregularity in terms of section 145 had been committed.
If neither
was present there was no basis to set aside the award. He submitted
furthermore that the probabilities were overwhelming
that the purpose
of the meeting on 29 June would have been to get the third respondent
to retract his resignation as has been confirmed
by Pierce Jones when
he stated “
.. there was a desire
from my client to have Mr Curran continue on site and by and large
our relationship was good in my opinion
except for one or two matters
that Mr Curran and I disagreed on”.
This is an admission made under cross-examination. The evidence
clearly was that the withdrawal of his resignation was done at
the
instance of the employer, and it is clear furthermore on a balance of
probabilities, that it was an unconditional withdrawal
and was not
subject to the employer having found a suitable candidate.
Furthermore, it was in keeping with Masoga’s evidence
that the
purpose of retracting his resignation on 29 June in circumstances
where his contract ended the following day i.e. 30 June,
was the
continuation of the contract of employment until December. This is
clearly what the second respondent refers to in when
he expresses
surprise about the submission that there had been no verbal
agreement. Clearly the parties had anticipated, and this
was clear
from the evidence on a balance of probabilities, that a verbal
agreement would be entered into and that a letter and
contracts would
eventually be sorted out. In other words, the contract was extended
with a view to the parties concluding a formal
further contract. This
was not improbable given that the third respondent was employed on
the basis of a verbal contract that was
renewed monthly, according to
his undisputed evidence. Mr Van As submitted that no aspect of the
reasoning of the arbitrator constitutes
a reviewable irregularity in
terms of the
Sidumo
test. The second respondent clearly made a credibility finding
against Pierce Jones, supported by the balance of probabilities,
and
when viewed together concluded that there was an agreement to extend
the contract of employment. It was submitted furthermore
that the
present matter was on all fours with the Labour Appeal Court decision
in
Wyeth SA (Pty) Ltd v Manqele and
others
[2005] 6 BLLR 523
(LAC) and it
would accordingly have been unfair of the employer to terminate in
this instance. I agree with these submissions.
[30]
In my view there was sufficient evidence furthermore for the
arbitrator to conclude that a verbal contract had been concluded,
even though he erred in finding it was common cause . This clear from
the following exchanges:
(a)
Mr Scholtemeyer: Sorry, what specifically did Mr Trevor
Pierce Jones communicate to you? Did he accept your resignation?
Mr
Curran : Yes, he did. He accepted my withdrawal of my resignation,
yes.... he said he would speak to me tomorrow – sorry,
the next
day... with regard to make sure that everything was in place, that
they were to be continued as the facility manager,
that I would
continue as a facility manager”....
Mr Scholtemeyer: What
have you agreed to?
Mr Curran: I agreed to
continue working for Gretev until the end of the year.”
(Transcript,
page 23 - 24).
(b)
Further, in cross examination the third respondent confirms that his
discussion with Pierce
Jones was that: “[Masoga had said]
That
they did not want me to go, they wanted me to withdraw my resignation
if it was withdrawn it would be – the contract
would just
extend to the end of the year, month by month and I agreed to that
and I agreed to withdraw my resignation for that
period of time”.
(Transcript, page 62)
(c)
Masoga’s evidence was that he received a call from Pierce Jones
indicating that
he had been successful in getting the third
respondent to retract his resignation, and he was satisfied because
this meant that
the third respondent would continue to be employed by
the University for a further six months. He confirmed that after his
discussion
with Pierce Jones: “
It
was my understanding that an agreement was reached and that he will
stay and therefore he would be back on Monday”.
( Transcript, page 64). Furthermore, Pierce Jones did not specify
that there were any conditions attached to the third respondent’s
return, and that the “
....message
was that discussion seems fruitful that WILLIAM must come back on
board and indeed it was agreed..INAUDIBLE....there
would not be
interruption of service, there would be continuity...”
(Transcript,
p99). He stated in cross examination that the purpose of the
meeting on the campus on 29 June was for Pierce
Jones to get the
third respondent to agree to withdraw his resignation. Masoga’s
evidence in this regard was that :
“
Mr
Da Costa : Because
MR TREVOR PIERCE JONES will give evidence that he could not
have
accepted that verbal resignation if that position had been
offered to someone else .
Mr
Masoga: ...yes that is probably the case but I am
just...INAUDIBLE...that my understanding was if there was somebody
that has been taken I would not have said in that meeting...I had a
meeting with MR PIERCE JONES in the morning that he must
pursue
....”[a reference to his
instruction to the applicant to seek retraction of third’s
respondent’s resignation]
(Transcript,
page 102).
[31]
The
dictum
in
Sidumo
that the grounds of review
set out in section 145 of the Act are suffused by reasonableness
requires an evaluation both of the process
by which the arbitrator
reached his conclusions as well as the content of those conclusions.
The
Sidumo
test of unreasonableness has been applied in a
number of judgments of this court and has been aptly described by
Zondo JP in
Fidelity Cash Management Service v
CCMA & others
[2008] 3 BLLR 197
(LAC)
at para 96 as requiring that an award “
must be
reasonable and if it is not reasonable, it can be reviewed and set
aside”.
I am not persuaded that, having regard to the
material before the arbitrator, it
can be said
that the arbitrator failed to apply his mind to the evidence as a
result of which the award was based on a misdirection
or gross
irregularity in terms of section 145, nor can his conclusion be said
to be one that a reasonable decision maker could
not have reached. In
regard to the sanction, the
Sidumo
judgment makes it clear that where the award and conclusion of the
arbitrator, which is essentially a value judgment, falls within
a
band of reasonable responses to the evidence before him, this should
not be interfered with.
[32]
In the premises, I make the following order:
The
application is dismissed, with costs.
_____________________
Date
of hearing: 05.06.09
Date
of judgment: 10.07.09
Appearance:
For
the Applicant: Advocate M B G Da Costa instructed by Grant Rae
Attorneys
For
the Third Respondent: Advocate M Van As instructed by Jan
Scholtemeyer Attorney