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[2009] ZALCJHB 25
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Sibande v Commission for Conciliation Mediation And Arbitration and Others (JR1032/04) [2009] ZALCJHB 25 (30 July 2009)
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
REPORTABLE
CASE NO: JR1032/04
In the matter
between:
MORGAN
SIBANDE
APPLICANT
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND
ARBITRATION
1
ST
RESPONDENT
COMMISSIONER
S. KHOZA
2
ND
RESPONDENT
DUNWELL
PROPERTY SERVICES
3
RD
RESPONDENT
JUDGMENT
Molahlehi J
Introduction
[1]
This is an application to review and set
aside the arbitration award issued by the Second Respondent (the
Commissioner) under case
number GA 21845/03 dated 16
th
April 2004. In terms of that award the Commissioner found that
dismissal of the applicant Mr Morgan Sibande, who in this judgment
is
referred to as the employee, to be fair and confirmed the dismissal.
[2]
The review initially came before Rampai J
on the 20
th
March 2007. In his judgment subsequent to hearing and considering the
matter on the unopposed basis the Learned Judge reviewed
and set
aside the arbitration award of the Commissioner and ordered that the
employee be reinstated in the position he occupied
prior to his
dismissal.
[3]
Rampai J’s judgment was made in
default, the third respondent having failed to oppose the review
application. On receipt of
the judgment the third respondent filed an
application to rescind the judgment granted in default. The judgment
was rescinded on
12
th
June 2008 by Cele J.
Background facts
[4]
The employee who prior to his dismissal was
employed as a manager by the third respondent was dismissed because
he was alleged to
be an illegal immigrant.
[5]
After his dismissal the employee referred
an unfair dismissal dispute to the first respondent, the CCMA which
dispute was subsequent
to failure of conciliation arbitrated by the
Commissioner. The Commissioner found the dismissal to have been fair
and upheld the
dismissal.
[6]
The third respondent in support of its case
during the arbitration hearing relied on the testimony of Mr Xulu who
testified that
prior to the dismissal he accompanied the employee to
the YMCA. Apparently on their arrival at the YMCA they found the
employee’s
wife, Mrs Sibande involved in a fight with a
security guard. The fight between the two concerned an office which
Mrs Sibande claimed
she was entitled to occupy.
[7]
According to Mr Xulu, the employee took
sides and attacked the security guard. He had to intervene to stop
the employee from continuing
assaulting the security guard.
[8]
The issue of the assault was reported to
the other staff members by Mr Toda, the director of the third
respondent, and Mr Watkins
the following Monday. After the report a
meeting was convened attended by Mr Watkins, the employee and Mr
Xulu. At this meeting
Mr Watkins informed the employee that the third
respondent had a problem in keeping him (the employee) in its employ
because his
citizenship was questioned by the Department of Home
Affairs.
[9]
The employee in testifying on his own
behalf during the arbitration hearing indicated that he was arrested,
charged but found not
guilty of the alleged assault on the security
guard. He believed that the real reason for his dismissal was because
of the alleged
assault including the fact that the third respondent
sought to avoid having to pay him compensation in the amount of R250
000.00
arising from an incident where he was shot in the neck while
on duty. It was for this reason, according to him that the third
respondent
conspired with Mr Chivoze, the immigration officer of the
Department of Home Affairs, to have him deported out of the country.
[10]
The employee denied that he was an illegal
immigrant and testified in this respect that he was a holder of a
valid South African
identity document. He further testified that Mr
Chivoze seized his identity document, because he suspected him to be
a Zimbabwean
citizen. Thereafter, the employee filed an application
to the High Court demanding that Mr Chivoze should return his
identity document.
The grounds for
review
[11]
The employee contended that the award was
reviewable because the Commissioner disregarded the certified copy of
the identity document
which he produced during the arbitration
hearing confirming that he was a South African citizen. In this
regard the employee further
contended that the Commissioner ought not
to have found the dismissal to have been fair in the absence of
documentation confirming
that he was an illegal immigrant.
[12]
The employee further contended that the
Commissioner committed a gross irregularity in finding that the
dismissal was fair in the
absence of proof that he was an illegal
immigrant.
The Commissioner’s
award
[13]
As concerning procedural fairness of the
dismissal the Commissioner found:
“…
although
the applicant disputed that a disciplinary
hearing
was held… prior to his dismissal, he however did not dispute
that a
meeting
did take place between himself and Mr Watkins in the presence of
Patrick wherein he was
informed
about the
reason
for his dismissal.”
[14]
The Commissioner found the dismissal to
have been substantively fair because the employee was not dismissed
for any misconduct,
“
but was
dismissed after he was declared an illegal immigrant.”
Evaluation
[15]
Whilst the judgment of Rampai J was
rescinded as indicated earlier in this judgment, I had the
opportunity to read it and fully
agree with the reasons and the
conclusions reached therein. Firstly, I concur with the conclusion of
the Learned Judge concerning
the procedural fairness of the dismissal
of the employee. In this respect the Learned Judge had this to say:
“
[19]
Certainly a meeting between an employer and an employee can never be
a substitute for a disciplinary
inquiry as the relevant labour
legislation envisages. To the extent that in the instant case the
commissioner reasoned that it
could, I find that she committed a
gross irregularity. The employer’s second witness testified
about the meeting of 23 June
2003 between the employer’s
director, Mr. Watkins, and the employer’s manager Mr. Sibande.
What happened there came
nowhere close to a hearing of any sort. Mr
Watkins, speaking on behalf of the employer, did not go over there to
ascertain Mr.
Sibande’s response to Mr Chivoze’s
suspicion that he was an illegal immigrant. He was clearly not on a
fact-finding
mission. According to Mr. Xulu, Mr Watkins went over
there and informed the employee that his status as a citizen was
questioned.
[20]
The employer heard only one side of the story and without hearing the
other side as well, concluded that
the employee was an illegal
immigrant, informed him accordingly and dismissed him. Mr Xulu’s
evidence showed that Mr. Watkins
merely informed the employee of a
decision already taken elsewhere. He did not invite the employee to
any disciplinary hearing.
In short, no formal charge was formulated,
no notice of hearing was served and no disciplinary hearing was held.
[21]
The commissioner’s finding that:
“…
this
was one of the cases which did not require a disciplinary hearing to
be held because the applicant was not dismissed for any
misconduct…”
is untenable. If the
employee had committed no workplace misconduct, then he should not
have been dismissed. Obviously, the employer
accepted the immigration
officer’s suspicion that the employee was an illegal immigrant
as the absolute truth and saw no
need to afford the suspected
employee an opportunity of defending himself. No papers from the
Department of Home Affairs referred
to in Mr. Xulu’s evidence
were ever shown or given to the employee during the meeting he had
with Mr. Watkins.”
[16]
As to the reason why the third respondent
ought to have held a disciplinary hearing the Learned Judge held
that:
“
[22]
… Therefore, a disciplinary inquiry should have been held. The
immigration officer should have been
called and the alleged documents
in support of the claim that the employee was an illegal immigrant,
should have been produced
to prove the misconduct and the employee
afforded an opportunity to answer an answerable case. It was never
done. As a result of
the defective steps taken by the employer, the
employee was denied procedural fairness. He was clearly prejudiced.
In my view,
the dismissal was procedurally unfair. Therefore, I would
set the commissioner’s contrary finding aside.”
[17]
Mr Boda for the third respondent argued
that, Rampai J was wrong in his conclusion about the Commissioner’s
finding in relation
to substantive fairness, because at the time the
applicable legislation at the time was Aliens Control Act 96 of 1991
(Aliens Control
Act).
[18]
The Immigration Act 13 of 2002 (Immigration
Act) repealed the Aliens Control Act. Both pieces of legislations
give the immigration
officers certain administrative powers in
dealing with the issue of a person being suspected or regarded as an
illegal immigrant.
[19]
Mr Boda further argued that the status of
the employee as an illegal immigrant was determined by the
immigration officer and if
the employee was dissatisfied with that
determination his remedy lied with the Immigration Court in terms of
the
Immigration Act. The
argument went further to say that once the
immigration officer has made a decision determining the citizenship
of a person such
a decision is binding until set aside by the Court.
It is for this reason that the CCMA would not have the powers to go
beyond
the decision of the immigration officer.
[20]
I accept the argument that an order by an
Immigration Officer declaring a person to be an illegal immigrant is
valid and enforceable
until it is set aside by a competent Court or
tribunal.
[21]
Thus in the present instance the key issue
is whether or not the employee was declared an illegal immigrant? The
contention of the
third respondent during the arbitration hearing was
that the employee was dismissed because he was declared an illegal
immigrant.
The third respondent relied on what it was told by Mr
Chivoze, in particular that the employee’s case interdicting
the Department
of Home Affairs from deporting him was dismissed. This
understanding is confirmed in the letter of dismissal which the
relevant
part reads as follows:
“…
The
reason for the termination is that your employer has been informed by
the Department of Home Affairs that you have been using
a fraudulent
identity document and that Home Affairs has obtained a court order to
have you deported…”
[22]
In the rescinded judgment of the Labour
Court, Rampai J found that the real reason for the dismissal was
because the employee deceitfully
represented to the employer that he
was a lawful citizen of South Africa when he was not. The Learned
Judge found that it was this
perceived misconduct which led to the
dismissal of the employee and accordingly a disciplinary hearing
should have been held.
[23]
The issue of the validity of a contract
concluded between a South African employer and an illegal immigrant
received attention in
Discovery Health
Ltd v CCMA & Others
[2008] ZALC 24
;
(2008) 7 BLLR 633
(ILC)
.
The other issue which the Court was confronted with in that case was
whether an illegal immigrant can be regarded as an employee.
This
issue did not arise in this matter. The issue of the validity of an
illegal contract received attention also in
Kylie
v CCMA and Others
[2008] ZALC 86
;
[2008] 9 BLLR 870
(LC).
[24]
Van Niekerk J in
Discovery
Health
held firstly that even if the
contract between Lanzetta and employer was invalid, Lanzetta would
still fall within the definition
of an “
employee”
in terms of the
Labour Relations Act 66 of 1995
and accordingly the
definition would have to be reconciled with the fair labour practice
conferred on every employee by the Constitution.
In “
Kylie”
the Court held that prostitutes were
entitled to constitutional protection “
as
persons”
but not as employees.
The Court found that prostitutes did not have the protection provided
for in the
Labour Relations Act because
their activity was
criminalized by the Sexual Offences Act 23 of 1957. Thus the
difference between these two cases is in the nature
of the work which
the tow people were doing. In
Kylie’s
case
the work was declared illegal by
the Sexual Offences Act whereas in the
Discovery
Health’s case
the work done by
the employee was not prohibited, but the issue concerned the status
of the person.
[25]
The facts of the present case whilst very
similar to those in
Discovery Health
,
they are however distinguishable. In the
Discovery
Health
matter it was common cause that
the employee was an illegal immigrant whereas in the present matter
the employee contended that
he was a South African citizen and that
his identity document was wrongfully taken from him by the
immigration officer.
Discovery Health,
had to do with the issue of jurisdiction of the CCMA and thus Court
on review did not have to deal with the merits and the remedy
to be
made if it was to be found that the dismissal was unfair.
[26]
Before dealing with the issue of the status
of the employee, I need to dispose off the argument raised on behalf
of the third respondent
that Rampai J was wrong in applying the
provisions of the Aliens Control Act instead of the
Immigration Act.
I
may mention that Stegmann J in the High Court case also applied the
same Act in dismissing the employee’s application. The
reason
for the approach adopted by both Courts is simply that the
Immigration Act which
repealed the Aliens Control Act came into
operation on the 12
th
March 2003. Thus at the time the immigration officer seized the
identity document of the employee on the 27
th
March 2002, the
Immigration Act had
not yet come into operation. The
application to interdict the Minister of the Department Home Affairs
from causing the employee
to be arrested for purposes of arranging
his deportation was brought on 24
th
June 2002.
[27]
The process which had to be followed in
determining and declaring the employee an illegal immigrant is thus
set out in the repealed
Aliens Control Act. The Aliens Control Act
gave the immigration officer the power in terms of section 7(1)(ii)
to require any person
who in the opinion of such officer is not
entitled to be in South Africa, to produce documents showing that he
or she was authorised
to enter or to be in South Africa. The
immigration officer had powers in terms of section 9(1) to declare a
person, who failed
to produce documentation showing that he or she
was entitled to be in South Africa, to be a prohibited person. Having
declared
a person to be a prohibited person, the immigration officer
has further powers in terms of section 10(1)(a) to issue such a
person
with a provisional permit authorising the person to remain in
South Africa for a given period.
[28]
Another important section in the
consideration of this matter is section 10(5)(a) of the Aliens
Control Act, which provides that
before the expiry of a provisional
permit the immigration officer shall after making such investigation
as he or she might deem
necessary make a determination as to whether
the person is a prohibited person. If he or she determines that the
person is a prohibited
person, he or she is obliged to inform the
person of his decision in writing and give him notice to leave South
Africa.
[29]
It is trite that in terms of section 192 of
the Labour Relations Act 66 of 1995 (the LRA), the burden to show
that the dismissal
was fair rests with the employer, the third
respondent in this instance. In my view the facts and the
circumstance of this case
show that the third respondent had failed
during the arbitration hearing to discharge its duty in as far as the
burden of proof
was concerned.
[30]
In this respect it was never, in my view,
the finding of the High Court that the
rule
nisi
was to be discharged because the
immigration officer had declared the employee a prohibited person or
an illegal immigrant for
that matter. The critical finding of the
High Court in this respect is found at page 15 line 4 to 14 of the
judgment, where Stegmann
J had this to say:
“
It
must also be pointed out that the respondent’s immigration
officer had not complied with the requirements of section 10(5),
namely, that before the expiry of the permit he should make a
decision on the question whether or not the appellant was a
prohibited
person (my emphasis). If he had decided that the applicant
was not a prohibited person, it would presumably have become
unnecessary
for the respondent to take any further steps against the
applicant. On the other hand, if he had decided that the applicant
was
a prohibited person, then further powers would have come into
play. But in the absence of any decision, further powers did not,
as
I see it, automatically come into play.”
[31]
It was also on the basis of the above that
Rampai J concluded that:
“
[31]
It follows from the aforegoing passage that the employee was never
declared
to be an illegal immigrant. Therefore, the commissioner’s
finding that the employee “was dismissed after he was declared
an illegal immigrant” was incorrect. Such a finding was based
on the aforesaid High Court judgment which was clearly misconstrued.
Stegmann J found that Mr. Chivoze, the immigration officer, failed to
make the requisite decision and to serve the requisite notice
in
terms of section 10(5)(a). The practical implications of the
immigration officer’s non-compliance with this particular
section are obvious. Firstly, the employee did not know that he was a
prohibited person because he had not been declared to be
one.
Secondly, the employee did not know that he had to leave the country
because he had not been officially informed by a way
of a written
notice to do so.”
[32]
I align myself with the above conclusion
and the finding which the Learned Judge had made earlier on in the
judgment at paragraph
22 when he said:
“
[22]
… Therefore, a disciplinary inquiry should have been held. The
immigration officer should have been called and the alleged
documents
in support of the claim that the employee was an illegal immigrant,
should have been produced to prove the misconduct
and the employee
afforded an opportunity to answer an answerable case. It was never
done. As a result of the defective steps taken
by the employer, the
employee was denied procedural fairness. He was clearly prejudiced.
In my view, the dismissal was procedurally
unfair. Therefore, I would
set the commissioner’s contrary finding aside.”
[33]
In essence, had the Commissioner applied
her mind to the evidence before her she ought to have realised that
the case of the third
respondent was based on what it was told by the
immigration officer. That information did not establish as fact that
the employee
was a prohibited person or an illegal immigrant. The
case of the third respondent was based on the suspicion of the
immigration
officer that the employee was an illegal immigrant. The
suspicion that a person is a prohibited person does not establish a
fact
or legal position that such a person is a prohibited person but
simply in law give rise to a process which is intended to establish
the true status of the person. The suspicion which the immigration
officer had that the employee was an illegal immigrant was accepted
by the High Court and it was for that reason that the Court
discharged the rule
nisi.
The
reason for discharging the rule
nisi,
was because the Court found that there was good grounds for the
suspicion by the immigration officer that, the employee was a
prohibited person. The Court further found that because there was
reasonable ground for suspicion the immigration officer could
not be
said to be abusing the powers given to him by the provisions of the
Aliens Control Act. In other words the immigration officer
was
entitled to proceed with the process as set out in both sections 9
and 10 of the Aliens Control Act. There is no evidence that
that such
a process was concluded in a way that it would have supported the
case of the third respondent namely that the employee
was declared a
prohibited person in terms of section 10(5)(a) of the Aliens Control
Act.
[34]
It therefore follows that the conclusion
reached in the award cannot be supported by the evidence which was
presented before the
Commissioner. In this respect the Commissioner
failed to appreciate the task which was before her which was to
determine on the
evidence whether or not the third respondent had
discharge its duty of showing on the balance of probabilities that a
fair and
valid reason existed for the dismissal of the employee. The
reason could never been valid because it was based on a suspicion of
the true status of the employee. Mr Chivoze was never called to
testify as to the true status of the employee, neither did the
third
respondent produce any document confirming that the employee was an
illegal immigrant.
[35]
The key ground upon which the employee
based its challenge to the arbitration award is gross irregularity as
envisaged in
section 145
of the
Labour Relations Act. Section
145(2)
of the
Labour Relations Act reads
as follows:
“
(2)
A defect referred to in subsection (1), means -
(a)
that the commissioner -
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in
the conduct of the arbitration proceedings; or
(iii)
exceeded the commissioner’s
power;. . .”
[36]
In
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR
1097
(CC),
held that the provisions of
section 145
of the
Labour Relations Act was
suffused by the
constitutional standard of reasonableness. The standard of
reasonableness is determined by answering the question
which was
formulated in
Bato Star Fishing (Pty)
Ltd v Minister of Environmental Affairs & Others 2004(7) BLLR
687(CC) as
follows; “
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[37]
The test for gross irregularity as was
articulated in
Gold Fields Investment
Ltd & another v City of Johannesburg & another
1938 TPD 551
is summarised
in
Sidumo
by Ncobo J (at page 1178-F) as follows:
“
.
. . patent irregularities,” that is irregularities tat takes
place openly as part of the proceedings, on the one hand, and
“patent
irregularities, that is irregularities that take place inside the
mind of the judicial officer which are ascertainable
from the reasons
given by the decision maker.”
[38]
The crucial enquiry in determining the
existence of gross irregularity in terms of
Sidumo
is whether the conduct of the decision
maker complained of prevented a fair trial of the issues. This
inquiry focuses on the method
or conduct of the decision-maker and
does not concern itself with the correctness of the decision reached
by the decision-marker.
It is not every irregularity that would
constitute gross-irregularity. It has however been found in a number
of cases that a commissioner
commits gross irregularity if he or she
fails to apply his or her mind to a matter material to the fairness
of the sanction. See
Sidumo at 1179 A-C
and 1180 A-C).
[39]
In my view had the commissioner in the
present instance applied his mind and appreciated the task before
him, he ought to have found
that the third respondent had failed to
discharge its duty of showing that the dismissal of the employee was
for both a valid and
fair reason. Accordingly, the Commissioner has
committed a gross irregularity in that he failed to fairly determine
the issues
before him.
[40]
In the light of the above, I am of the view
that the Commissioner’s award stands to be reviewed. I see no
reason why the matter
should be remitted back to the CCMA, as there
is sufficient information and material upon which this Court can
determine the matter.
[41]
In the premises I make the following order.
(i)
The arbitration award issued by the second
respondent, on 16
th
April 2004 under case number GA 21845-03 is reviewed and set aside.
(ii)
The dismissal of the applicant was both
procedurally and substantively unfair.
(iii)
The third respondent is directed to
reinstate the applicant to the position he held immediately prior to
his dismissal on 23
rd
June 2003 on terms and conditions no less favourable and with full
benefits.
(iv)
There is no order as to costs.
_______________
Molahlehi J
Date of Hearing
: 26
th
February 2009
Date of Judgment
: 30
th
July 2009
Appearances
For the Applicant
: Mr Morgan Sibande
(in person)
For the
Respondent: Adv Boda
Instructed by
: Chiba-Jivan
Incorporated