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[2010] ZALCJHB 45
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Ncaphayi v Commission for Conciliation Mediation And Arbitration and Others (JR865/09) [2010] ZALCJHB 45 (3 August 2010)
IN THE LABOUR COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NO: JR 865/09
In the matter between:
M
NCAPHAYI
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
1
st
Respondent
COMMISSIONER
LUNGILE MTIYA
2
nd
Respondent
GAUTENG
PROVINCIAL RETAIL
OPERATIONS
3
nd
Respondent
JUDGMENT
LAGRANGE,AJ
Introduction
1.
This applicant seeks to set aside an award
by the second respondent (‘the commissioner’) handed down
on 25 March 2009,
in which the commissioner concluded that the
applicant’s referral of an unfair dismissal dispute to the CCMA
was defective
because in CCMA proceedings on 17 November 2008 he had
withdrawn a previous unfair dismissal case between himself and the
third
respondent (GP Retail Operations).
Background
2.
The chronological sequence of events as
outlined by the applicant in his founding affidavit in this
application is summarised as
follows:
2.1.
He was employed by GP Retail on 10 August
2001 and was deployed to work for various retail clients of the
company performing work
relating to the retrieval of shopping
trolleys. The last time the applicant worked he was supervising
trolley collection at a branch
of Woolworths.
2.2.
On 9 September 2008, an incident occurred
involving four other employees the applicant was supervising, which
led to all of them
being excluded from the client’s premises.
GP Retail tried to remedy the situation with the client but it seems
the client
refused to allow the employees to continue working for it.
2.3.
According to the applicant, GP Retail
management advised them to wait at home until it could arrange
another work site for them.
No alternative work was provided by
the firm and the employees concluded they had in fact been dismissed.
2.4.
This led to the first referral of an unfair
dismissal dispute, made jointly by the four employees and the
applicant, in which they
claimed they had been dismissed on 11
September 2008, which was the last day they worked. The referral was
made under CCMA case
number GAJB 31687-08.
2.5.
At the conciliation hearing on 17 November
2008, the applicant claims that GP Retail’s HR manager said
they were all still
employees of GP Retail. This led them to withdraw
the case, apparently in the renewed hope that the firm was still
looking for
an alternative work site for them.
2.6.
The applicant claims he then asked for his
UIF form U119 and saw that it showed he had absconded on 16 October
2008.
2.7.
The applicant claims the last time he
received a salary was for September 2008.
2.8.
The applicant then referred a dispute to
the CCMA again under a new case number GAJB 399-09 on 2 January 2009.
This dispute was
unsuccessfully conciliated on 9 February 2009 and
set down for arbitration on 17 March 2009.
2.9.
In the second referral the applicant cited
the date of his alleged dismissal as 19 December 2008, which is
the date he claims
he learned of his supposed absconsion on 16
October 2008.
3.
The respondent’s answering affidavit
did not respond in detail to events related in the applicant’s
founding affidavit,
but the following can be gleaned from the vague
response contained in the answering affidavit:
3.1.
At the arbitration hearing GP Retail’s
HR manager testified that the applicant had absconded on 16 October
2008, when a client
of the firm had advised that it no longer
wanted the applicant on its premises and the firm had wanted to place
the employees
with another client.
3.2.
The applicant then made the first referral.
3.3.
The referral was withdrawn on 17 November
2008 as the CCMA did not have any jurisdiction as there had been no
dismissal and the
applicant elected to withdraw the matter.
4.
In passing, I note that the respondent
complains of the limited numbering of paragraphs in the applicant’s
founding affidavit.
It is true that the applicant should have
broken up his numbered paragraphs into more digestible
sub-paragraphs, but I do not think
the failure to do this prevented
the respondent from providing a more comprehensive response to the
allegations set out there.
It could still have set out its own
version in more detail.
5.
From the transcript of the arbitration
proceedings of 17 March 2009 it appears that the employer raised the
withdrawal of the previous
referral as an
in
limine
issue. It argued successfully
that the matter could not be reconsidered as it had already been
disposed of on 17 November 2008.
6.
At the hearing the applicant appears to
have stated his version of why he withdrew the first referral. He
claims he did so because
the company had advised him and his
co-complainants that they were still part of the company, but they
had to wait for the company
to organise another work site for them.
He expressed his confusion as to why the respondent subsequently
claimed he had absconded.
7.
At no stage during the arbitration hearing
did the employer offer an explanation for the entry on the
applicant’s UIF form
showing that he absconded on 16 October
2009. The employer’s representative at the hearing, Mr D
Khumalo, who is GP Retail’s
HR manager, appeared to have no
personal knowledge about when the alleged absconsion took place.
He claimed to be ignorant
of how the date of 16 October 2008 came to
be entered on the UIF form as the termination date because he did not
deal with the
forms.
8.
Mr Khumalo was nonetheless adamant that the
applicant had absconded and there had been no employment relationship
between GP Retail
and the applicant since that time. He denied that
any undertaking had been made to the applicant that he remained an
employee of
the firm.
9.
He further claimed that the
commissioner at the first conciliation hearing had advised the
applicant that he had no case which led
him to withdraw the matter.
The
commissioner’s ruling
10.
According to the arbitrator it was common
cause the applicant had not been employed by GP Retail Operations
after the dispute had
been withdrawn on 17 November 2008. It seems
that in making this observation, the arbitrator was trying to say
that there could
not have been a subsequent dismissal of the
applicant which could have been referred to the CCMA after that date,
and therefore
the second referral of an unfair dismissal dispute
could only have concerned the same dispute which had been withdrawn.
11.
The commissioner then concluded that,
unless the notice of withdrawal in respect of the previous referral
was set aside by the Labour
Court, the re-referral of that dispute
could not be considered by the CCMA. This is the essential
ratio
of the commissioner’s ruling.
12.
Despite finding that he could not
reconsider the earlier termination of the applicant’s
employment because that dispute had
been withdrawn and this court had
not set aside the notice of withdrawal, the commissioner was clearly
inclined to the view that
the applicant’s services had
terminated when he supposedly absconded on 16 October 2008.
13.
The hearing of the
in
limine
objection raised by the employer
was conducted in a loose and freewheeling manner with no evidence
being heard on oath, without
following any clear sequence as to who
was supposed to be presenting evidence or argument, or any
distinction been made between
evidence and argument. In the
course of the proceedings, the employer’s representative
refused to answer questions
the applicant sought to ask him about why
the date of absconsion reflected on the UIF form appeared to be 16
October 2008, whereas
he last worked on 11 September 2008. The
arbitrator made no attempt to persuade the employer’s
representative to answer what
were obviously relevant questions about
its version of events.
14.
The conduct of the proceedings alone would
warrant the award being set aside in my view, but the applicant did
not attack the arbitrator’s
conduct on these grounds.
Grounds
of Review
15.
Although the applicant was represented by
an attorney at the hearing of the review application, Mr Scholtz, he
seems to have drawn
up his founding affidavit without any advice or
assistance. Accordingly the grounds of review are not articulated
with the clarity
one might expect in the case of professionally
drafted papers.
16.
However he does appear to identify the
following issues as a basis for his review application:
16.1.
The commissioner took the respondent’s
side in not considering the employer’s failure to engage him on
another site
as constituting a dismissal.
16.2.
The commissioner failed to address the
question about when he was supposed to have absconded if his
last day at work was 11
September 2008 yet his termination date on
the UIF form is stated to be 16 October 2008.
17.Essentially
the applicant’s attack is that the commissioner did not
consider all the relevant evidence in deciding that
he had not been
dismissed.
18.
A pillar of the arbitrator’s
reasoning on the question of the applicant’s employment status
was that it was common cause
the applicant was not employed by the
respondent at any time after the conciliation of the first dispute on
17 November 2008. Given
this, the commissioner appears to have
accepted that the applicant could not have been dismissed on 19
December 2008, but must
have been dismissed by 17 November 2008.
19.
Having
reached this conclusion, the arbitrator did not go further to
determine the actual date of termination though it seems he
was
inclined to accept it was 16 October 2008, which is the date
appearing on the applicant’s UIF form when the employer
claims
he absconded. He is also sympathetic to the third respondent’s
contention that the applicant withdrew the case on
17 November 2008
because he accepted that he had not been dismissed.
[1]
The applicant took issue with the analysis not because of the legal
flaws in the reasoning, but because he felt the arbitrator
had failed
to consider the absence of evidence from the employer explaining why
16 October 2008 was the date he supposedly absconded,
when he not
worked since 11 September 2008.
20.
Immediately after making his observations
on the termination of the applicant’s services owing to his
absconsion and the withdrawal
of the first referral, the commissioner
concludes in paragraph 5.3. of the award: “The applicant’s
re-referral of the
matter is therefore defective unless the notice of
withdrawal is set aside by the Labour Court.” It is an
inescapable
inference that the arbitrator had concluded that the only
dispute over the termination of his services which the applicant
could
have referred was the same one he had previously withdrawn.
21.
Having decided that the second referral was
essentially the same dismissal dispute as the one in the first
referral, the commissioner
concluded he had no power to entertain the
dispute afresh. This amounted to a jurisdictional finding. This
aspect of his award
was not attacked in the grounds of review raised
by the applicant in his founding affidavit, but was raised in
argument at the
hearing of the application by Mr Scholtz.
22.
The respondent’s representative, Ms
Strijdom, recognised the jurisdictional component of the arbitrator’s
award and
argued that the review ought to have been brought under
section 158(1)(g) of the LRA for this reason. There is merit in this
argument
but when a jurisdictional question of this nature arises the
court cannot simply ignore it because it was not raised in the
founding
papers. When a commissioner makes an incorrect
jurisdictional finding that finding may be set aside by this court
under section
145(2)(a)(iii) of the LRA.
23.
Mr Scholtz argued that the commissioner had
effectively approached the withdrawal of the first dispute as if the
subject matter
of the first dispute should be treated as
res
judicata.
24.
To give both parties a fair opportunity to
address the jurisdictional question, they were invited to make any
further written submissions
on the question whether or not a
commissioner has jurisdiction to conciliate or arbitrate a dispute
which was previously withdrawn,
if the Labour Court has not set aside
the notice of withdrawal. By the end of June, supplementary written
submissions were received
from both parties, which I have considered.
25.
The essential issue is whether the
commissioner was correct in concluding that he could not entertain
the applicant’s unfair
dismissal claim unless the notice of
withdrawal in respect of the first referral was not set aside by this
court.
26.
Implicit in the commissioner’s
reasoning is an assumption that the applicant’s submission of a
notice of withdrawal
by a referring party constitutes action which
this court can review. However, the withdrawal of a dispute referral
to the CCMA
is not an act of any functionary, but the action of an
employee party to a dispute. The commissioner plays no role in that
decision.
This is the first difficulty with the commissioner’s
reasoning in arriving at his conclusion that he had no jurisdiction
to entertain the matter.
27.
The
second reason relates to the effect of a withdrawal of a referral to
conciliation. The LRA does not deal with the withdrawal
of matters
referred to the CCMA and neither do the rules of the CCMA. Rule
13 of the Labour Court merely deals with the procedure
to be followed
if a party wishes to withdraw proceedings. It is instructive to note
how the High Court has considered the effect
of a withdrawal of a
matter. It has been held that the withdrawal of a matter by a party
is akin to an order of absolution from
the instance.
[2]
Ordinarily, an order of absolution from the instance does not prevent
a party from reinstituting proceedings and the defendant
absolved in
the first proceedings will not be able to raise the
exceptio
rei judicatae
[3]
if sued again on the same cause of action
.
28.
If
the withdrawal of a matter in the High Court at a stage when it is
ripe for hearing does not necessarily prevent the institution
of
fresh proceedings, it would be anomalous if the withdrawal of a
matter at the conciliation stage of dispute resolution under
the LRA
– when no decision on the merits of the dispute is even
possible - precluded a party from making a fresh referral.
Obviously,
if the withdrawal under consideration is part and parcel of a final
settlement of the dispute the situation would be
quite different.
However, in this case, the withdrawal was at the applicant’s
own instance and not an intrinsic part of a
settlement agreement. It
should also be mentioned that the commissioner presiding at the first
conciliation did not issue a certificate
of outcome so the question
of whether or not that would have to be set aside before the matter
could be reconsidered does not arise
in this case.
[4]
29.
In the circumstances, I believe the
commissioner misconstrued his power to conciliate the dispute by
concluding that the applicant’s
withdrawal of the dispute
needed to be set aside by this court before he could entertain it.
30.
For the purposes of this decision it is not
necessary to determine the actual date on which the applicant’s
services with
the third respondent terminated and whether he was in
fact dismissed. These are matters which will have to be considered
when the
matter is reheard. If the applicant claims that his date of
alleged dismissal was not 19 December 2009, which is the date he
claims
he learned of the date of his supposed absconsion, but that it
was some date before 3 December 2009, he ought to file a condonation
application with the CCMA, in respect of the second referral on 2
January 2010, to be considered by the commissioner appointed
to
rehear the matter.
Costs
31.
While the applicant might ordinarily
have had some expectation that the costs of his representation in
court would be paid by the
third respondent, his conduct in not
serving documents at the third respondent’s chosen address for
service and his failure
to raise the jurisdictional challenge until
the matter was argued, would make such a cost order inequitable in
the circumstances.
Accordingly, no order is made as to costs.
Order
32.
Accordingly, it is ordered that –
32.1.
the ruling of the second respondent under
case number GAJB399-09 dated 25 March 2009 is reviewed and set aside;
32.2.
the first respondent must set the matter
down for arbitration before a commissioner other than the second
respondent, and
32.3.
no order is made as to costs..
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing : 19 March 2010
Date
of judgment: 3 August 2010
Appearances:
For
the Applicant:
W
P Scholz of Jansens Inc. Attorneys
For
the Respondent:
H
Strijdom of Helena Strijdom Attorneys.
[1]
It
should be noted that if the arbitrator had decided the matter on
this basis he would have done so by relying on a misconception
that
an act of absconsion by an employee means the employee terminates
the contract unilaterally. The correct legal construction
is that an
act of desertion is a material breach of contract by an employee
which entitles the employer to terminate the contract
by dismissing
the employee on account of that breach. The position is clarified by
Sutherland AJ in
SA
Broadcasting Corporation v Commission for Conciliation, Mediation &
Arbitration and others
(2001) 22 ILJ 487 (LC)
at 492-3, par [16].
[2]
See
Kaplan
v Dunell Ebden and Co
1924 EDL 91
at 93 where Van der Riet J stated that the effect of a withdrawal of
a case by a plaintiff was that “…
the
case disappears from the roll as though absolution from the instance
had been given.”
,
cited approvingly in
Wildlife
and Environmental Society of South Africa v MEC for Economic
Affairs, Environment and Tourism, Eastern Cape, and others
2005 (6) SA 123
(E)
at 127I-128C
[3]
MV
Wisdom C United Enterprises Corporation v Stx Pan Ocean Co Ltd
[2008] ZASCA 21
;
2008 (3) SA 585
(SCA)
,
at 588, par [9]
[4]
In
this regard see the case of
Dairybelle
(Pty) Ltd v Lupondwana NO & others
[2001] 7 BLLR (LC)