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[2009] ZALCJHB 30
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Naidoo v Commission for Conciliation, Mediation and Arbitration and Others (JR950/06) [2009] ZALCJHB 30 (27 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 950/06
In
the matter between:
JAYSEELIN
NAIDOO
APPLICANT
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
C J B
SCHOEMAN
2
ND
RESPONDENT
VODACOM
(PTY)
LTD
3
RD
RESPONDENT
JUDGMENT
N
YATHELA
AJ
Introduction
[1]
This is an application for review of an
arbitration award issued by the second respondent (the commissioner)
on 10
th
March 2006 under case number GAPT 9198-06. In terms of the award the
commissioner found the dismissal to have been both procedurally
and
substantively unfair and ordered only compensation. The complaint of
the applicant (employee) as appears more in details later
relates to
the issue of reinstatement.
[2]
The application is opposed by the third
respondent.
The facts
[3]
The employee who was employed by the third
respondent on 1
st
July 1999 as a call centre consultant was charged with misconduct and
dismissed subsequent to a disciplinary hearing which was
held on 14
th
July 2005. The dismissal took effect on 2
nd
September 2005.
[4]
The employee referred a dispute concerning
his alleged unfair dismissal to the first respondent on 20
th
September 2005. The dispute which remained unresolved after
conciliation was subsequently referred to arbitration.
[5]
As indicated earlier the Commissioner
issued his award on 10
th
March 2006, in terms of which he found the dismissal of the employee
to have been procedurally and substantively unfair. The third
respondent was ordered to compensate the employee in the sum of R20
433-09 which was an equivalent to employee’s three months
salary.
[6]
Applicant seeks to review the order and
have it side aside.
The parties
[7]
The applicant is Jayseelin Naidoo, an adult
male ex-employee of the third respondent.
[8]
The first respondent is the Commission for
Conciliation Mediation and Arbitration, a juristic person established
in terms of
section 112
of the
Labour Relations Act, 66 of 1995
.
[9]
The second respondent is JCB Schoeman an
adult male Commissioner of the first respondent. The second
respondent is cited herein
in his capacity as the Commissioner who
presided at the arbitration proceedings under case No: GAPT 8918/05.
[10]
The third respondent is Vodacom (Pty) Ltd,
a company duly incorporated with limited liability in accordance with
the company laws
of the Republic of South Africa with its registered
offices at Vodacom Corporate Park, 082 Vodacom Boulevard, Vodavalley,
Midrand
Johannesburg.
Grounds for review
[11]
In the founding affidavit the employee
contends that:
(a)
The second respondent erred in finding that
the employee failed to take
him into his confidence and thereby finding that he was unable to
reinstate the employee.
(b)
The second respondent committed misconduct
in relation to his duties by failing to take into account and
attaching sufficient weight
to the evidence of the third respondent’s
witness that she had
,
as
the initiator in the employee’s disciplinary hearing
,
requested the chairperson to impose a final written warning.
(c)
The second respondent failed to properly,
rationally and justifiably apply his mind to the facts and evidence
properly placed before
him and the factual findings made by the
second respondent is therefore not justifiable in relation to the
reasons given for such
award.
(d)
Factual findings made by the second
respondent did not correspond with the evidence properly placed
before him.
(e)
The second respondent failed to comply with
the provisions of the
Labour Relations Act pertaining
to the
conducting of fair and proper arbitration proceedings and the award
made by the second respondent is therefore not justifiable
in
relation to the reasons given for such award.
(f)
The award is not justifiable in relation to
the reasons given for such award and such award is not rational or
justifiable in its
merit or outcome.
[12]
The employee submitted that the reasons
formulated by the second respondent for not ordering reinstatement
being “
applicant’s
persistent denial of the alleged activations and his failure to take
me into his confidence make it difficult
for me to reinstate him
”
are in no way related to the merits of the dispute.
[13]
In opposing the application for review, the
third respondent raised points in limine and stated amongst others
the following:
Point in limine
[14]
The third respondent raised a point
in
limine
relating to:
(i)
Failure by the employee to serve a copy of
an Index on it (the respondent).
(ii)
The employee’s notice in terms of
Rule 7A(8)(b)
is defective as the affidavit was not deposed before a
commissioner of oaths.
(iii)
There is no record of the proceedings
before the Honourable Court. The Arbitrator submitted an affidavit to
confirm that the CCMA
has no records of the proceedings. The
Applicant failed to have the handwritten notes transcribed.
(iv)
The employee is obliged to transcribe the
hand written notes if the record is incomplete.
(v)
The application for review should be
dismissed.
Applicant’s
Submissions
[15]
In his submissions, employee reiterated the
grounds for review stated above. His main contention was that since
the commissioner
had found that his dismissal was substantively
unfair, he should have granted reinstatement instead of compensation
as a remedy.
He submitted that second respondent’s failure to
grant reinstatement in the circumstances constitute a gross
irregularity
warranting that the order be reviewed and set aside.
Third Respondent’s
Submissions
[16]
The award handed down by the second
respondent was a reasonable award and there is no reason for the
honourable court to intervene.
[17]
The employee failed to tender any plausible
explanation as to why he activated the value added services without
the consent of the
customers. The applicant remained defiant
throughout the proceedings and showed no element of remorse for his
actions.
[18]
The employee is wrong to state that the
second respondent failed to apply his mind by commenting that
“
applicant’s persistent
denial of the alleged failure to take me into his confidence make it
difficult for me to reinstate
him”
are in no way related to the merits of the dispute.
[19]
Third respondent will be severely
prejudiced to litigate in a matter where the only reason for the
review is that the Applicant
does not like the award that was made.
The personal likes and dislikes do not constitute grounds for review.
[20]
The second respondent considered all the
evidence before him and did not commit misconduct as envisaged in
Section 145(2)(a)(i)
of the LRA.
[21]
There was no evidence placed before second
respondent to justify a reinstatement order.
Analysis
[22]
I now proceed to deal with the point
in
limine
raised by the third respondent,
starting with the issue of serving the index on the respondents. In
this matter it is not in dispute
that the employee did not serve a
copy of the index on the respondent. However while serving an index
is necessary to ensure that
a party is able to use the documentation
provided with ease, the respondent has not indicated in what way it
was prejudiced save
to state that it had took more time to prepare
due to the absence of the index. This issue can however not be a
ground to dismiss
a review application but can however be relevant in
dealing with the issue of costs. However in this matter, employee was
not legally
represented and in my view, it may not be appropriate to
saddle an unrepresented employee with an order for costs in the
circumstances.
[23]
I have perused the documents referred to
above and I found that, contrary to the third respondent contention
the affidavit referred
to has in fact been deposed to before a
commissioner of oaths, I therefore reject the third
respondent’s contention
in this regard. However what has not
been deposed before a commissioner of oaths is an
annexure to the founding affidavit.
In my view the nature of the
ground for review which applicant relies on is such that this review
can be decided upon without the
annexures in question. I have
therefore not considered the annexure to the founding affidavit for
purposes of this judgement. I
am satisfied that the applicant has
complied with
Rule 4(2)(a).
The point in limine is therefore
dismissed.
[24]
Turning to the transcribed record of the
CCMA proceedings, it is common cause that the record has not been
made available, the handwritten
notes of the arbitrator are illegible
and the arbitrator has filed an affidavit stating that the tape
recordings of the arbitration
proceedings could not be located and
that he (the commissioner) is not in a position to reconstruct the
record using his handwritten
notes.
[25]
The issue which is subject of this review
proceeding is the order to compensate the employee. I am of the view
that this court is
in a position to deal with the issue even without
the record as the arbitrator has recorded his reasons why he is of
the view that
reinstatement is not an appropriate remedy.
[26]
The employee is only reviewing the order to
compensate him which order was made by the commissioner. The said
order reads as follows:
“
5.
AWARD
Having read the papers
and having considered the evidence and arguments advanced on behalf
of the parties I rule as follows:
5.1
The dismissal of Applicant on 2 September 2006 was unfair –
procedurally and substantively;
5.2
Respondent, Vodacom, is ordered to compensate Applicant, J Naidoo, in
the amount of R20433-09 –
this is equivalent to three months’
salary;
5.3
Amount to be paid not later than 31 March 2006;
5.4
Amount of R20 433-09 will earn interest from 1
April 2006 at the rate prescribed in section 2 of the Prescribed Rate
of Interest
Act 55/75.”
Legal position
[27]
The issue of relief in an unfair dismissal
case is governed by section 193 of the Labour Relations Act 66 of
1995 (the LRA). Section
193 of the LRA provides:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the Court
or the arbitrator may –
(a)
order the employer to re-instate the employee from any date not
on earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee was employed
before the dismissal or in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal;
or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
re-instate or re-employ the employee
unless –
(a)
the employee does not wish to be re-instated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would
be intolerable;
(c)
it is not reasonably practicable for the employer to re-instate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
[28]
In
Adams &
others v Coin Security Group (Pty) Ltd
[1998] 12 BLLR 1238
(LC),
the court per Zondo J (as he then was) held that the norm should be
to order re-instatement and the denial of that primary relief
should
occur only as an exception” under the circumstances set out in
paragraphs (a) to (d). In
Kroukam v SA
Airlink (Pty) Ltd
[2005] 12 BLLR 1172
(LAC)
at
para 116 Zondo JP suggested in a minority judgment that:
“
the
absence of a discretion on the part of the Labour Court or an
arbitrator to deny reinstatement to an unfairly dismissed employee
in
the absence of any one of the situations set out in section 193(2)…
must be understood against the background that reinstatement
was made
a statutory primary remedy in unfair dismissal disputes in return for
organised labour’s agreement that there should
be a capping of
compensation that could be awarded to unfairly dismissed employees.”
[29]
In
Sidumo &
another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ
2405 (CC)
Navsa AJ at para 72 stated
the following:
“
In
deciding how commissioners should approach the task of determining
the fairness of a dismissal, it is important to bear in mind
that the
security of employment is a core value of the Constitution which has
been given effect to by the LRA. This is a protection
afforded to
employees who are vulnerable. Their vulnerability flows from the
inequality that characterizes employment in modern
developing
economies...”
[30]
Section 193(2) therefore obliges courts and
arbitrators to order reinstatement or re-employment of an employee
whose dismissal is
found to be substantively unfair unless the
dismissed employee does not wish to return to the employer, or where
the commissioner
or the Judge is satisfied that the resumption of the
employment relationship would be “
intolerable
or impracticable.”
[31]
In this case, the arbitrator found that the
dismissal of the applicant was both procedurally and substantively
unfair. One would
have expected the arbitrator to have ordered
reinstatement unless the applicant did not wish to be reinstated, or
the commissioner
is satisfied that the resumption of the employment
relationship would be intolerable or impractical.
[32]
On page 8 paragraph 4.2 of the arbitration
award the second respondent stated the reasons for not granting
re-instatement to the
applicant as follows:
“
A
pplicant’s
persistent denial of the alleged activations and his failure to take
me into his confidence make it difficult for
me to reinstate him”.
[33]
After making a finding that the dismissal
was substantively unfair, the commissioner should have checked if the
exceptions as contained
in Section 193(2) existed. What is apparent
from the award is that the reason why the second respondent did not
grant reinstatement
is firstly that employee persisted in denying the
alleged activations for which he had been charged. At any rate, this
ground as
stated in the award does not fall under any of the grounds
listed in section 193(2) as a ground for denying reinstatement to an
employee whose dismissal is substantively unfair.
[34]
The second reason advanced by the second
respondent that Applicant did not take him into his confidence
also does not fall
within any of the factors mentioned in section
193(2) which justify denying an applicant reinstatement.
[35]
I am satisfied that the reasons advanced by
the second respondent for denying applicant reinstatement were
irrelevant more
particularly in that they do not fall under the
exceptions listed in section 193(2) which justify denying
reinstatement to an employee
whose dismissal is substantively unfair.
The second respondent therefore misdirected himself and thus
committed a gross irregularity.
[36]
In
Sidumo
(supra)
the court held that in
reviewing an arbitration award, the test should be whether “
...
having
regard to the reasoning of the commissioner,
based
on the material before him, it cannot be said that his conclusion was
one that a reasonable decision maker could not reach.”
[37]
In this matter, the second respondent had
found that the applicant’s dismissal is both procedurally and
substantively unfair.
As stated above, section 193(2) obliges an
arbitrator or judge who has found that the dismissal is substantively
unfair to reinstate
an employee unless any of the exceptions
mentioned in the section existed. I have already found that the
reasons advanced by the
commissioner in this matter for not granting
reinstatement do not fall under the exceptions mentioned under
section 193(2). I am
therefore satisfied that a reasonable decision
maker could not have reached the conclusion which the second
respondent has reached
in the circumstances. The order is thus
reviewed and set aside.
Order
[38]
In light of the above analysis, I am of the
view that the arbitrator’s award stands to be reviewed and
corrected.
[39]
In the premises I make the following order:
(i)
The award issued by the arbitrator under
case number GAPT 9198-06 dated 10
th
March 2006 is reviewed and the order made is substituted with the
following:
“
1.
The respondent is ordered to reinstate the applicant, J Naidoo
without loss of salary and benefits and conditions
not less
favourable than the ones applicable prior to his dismissal.
2.
The applicant should report for duty within 14 (fourteen) days of
date of this order.”
(ii)
There is no order as to costs.
_______________
Nyathela
AJ
Date
of Hearing :
30 April 2009
Date
of Judgment :
27 July 2009
Appearances
For
the Applicant :
Applicant appeared in person
For
the Respondent: Adv. U
Nunes