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[2010] ZALCJHB 36
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Glenaire Hyper Meat And Chicken v Bargaining Council for Meat Trade Gauteng and Others (JR1144/09) [2010] ZALCJHB 36 (26 October 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE
NO: JR1144/09
In
the matter between:
GLENAIRE
HYPER MEAT AND CHICKEN
FRANCHISE
CC Applicant
and
BARGAINING
COUNCIL FOR MEAT TRADE GAUTENG First
Respondent
DEACON,
C
N.O. Second
Respondent
SERRAO,
JS
Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review and set aside an arbitration award
issued by the second respondent (the commissioner) in terms
of which
the commissioner found that the applicant could not prove the
substantive and procedural fairness of the dismissal or
the
contemplated retrenchment of the third respondent and ordered the
applicant to pay the third respondent R200 000.00 compensation
which
is ten months remuneration.
2.
The third respondent was employed by the applicant as an assistant
manager. His rate of earnings is in dispute.
He
claims that he was unfairly dismissed on 1 September 2008 and
referred an unfair dismissal dispute to the Bargaining Council
for
Meat Trade Gauteng (the first respondent) on 14 October 2008.
The conciliation meeting took place on 2 December 2008
and a
certificate of non resolution was issued on the same day. The
matter was referred for arbitration and the hearing took
place on 21
January 2009. The applicant contended that no dismissal had
taken place and that the third respondent was retrenched.
The
third respondent contended that his dismissal was procedurally and
substantively unfair and that no disciplinary hearing had
taken
place.
The evidence led
at the arbitration hearing
3.
The third respondent testified at the arbitration hearing and said
that he previously worked as a store manager for Supersave
Butchery
in Johannesburg from mid November 2006. In February 2007 he
became a 30% shareholder at Supersave Butchery until
the end of April
2008. Tony and Frank were the other shareholders. At the
end of April 2008 Frank and Tony offered
him employment at the
applicant. Salary was discussed as well as a bakkie and petrol
expenses. He was employed as an
area manager, and would earn a
net salary of R20 000.00 per month. Part of his duties was to
go to the stores and assist
the managers with problems. At the
end of June 2008 he was forced to work at the Hillfox store under the
supervision of one
Joe. His salary package was changed to R12
000.00 cash and the balance would be paid by the applicant’s
head office.
His duties were to be Joe’s right-hand man.
4.
The third respondent testified that on Sunday, 31 August 2008 at
about 17h30 he asked for his salary as he usually got paid on
the
last day of the month. On Monday, 1 September 2008, at closing
time, Joe called him in and told him that they could not
work
together, and he must go. He then phoned Emmanuel, the
applicant’s representative but could only get hold
of
Terrance - Emmanuel’s secretary. He told the
secretary that the applicant could not just dismiss him.
On 4
September 2009 Joe phoned him and told him to bring back the
uniform. When he got to the shop, a notice of contemplated
retrenchment was handed to him. He was surprised to see this
letter and attended a meeting on 17 September 2008 as requested.
At this meeting, Robbie the shareholder and Emmanuel offered him one
month’s salary and severance pay. No reasons were
given
for the retrenchment nor was he given a counter proposal.
During the meeting he went outside to telephone his representative,
Thabo Sethiba and was informed not to sign any documentation.
The letter that he was given said that it was a ‘contemplated
retrenchment’. No other employee was consulted or
retrenched and the applicant did not attempt to avoid the
retrenchment.
He believes that the retrenchment was a
smokescreen for his unfair dismissal, because they did not follow any
procedure to dismiss
him. He was dismissed on 4 September 2008
and was given a notice of contemplated retrenchment. No
disciplinary action
was involved in his dismissal.
5.
The applicant called Thabo Sethiba as its witness. He testified
that on 5 September 2008 the applicant gave the third respondent
a
notice of a contemplated retrenchment. At a meeting on 17
September 2008, the applicant made the third respondent an offer
which he declined. He was the last person who was employed and
was the first person to be retrenched. The applicant
believes
that there was not a dismissal but a retrenchment.
The arbitration
award
6.
The commissioner has set out in his award the evidence led at the
arbitration. It is not necessary to repeat it.
He said
that in evaluating and analysing the evidence presented by the
parties, he must reach an unambiguous award. He said
that in
dealing with the procedural aspect of this case it was common cause
that no hearing was held. The commissioner said
that this
clearly lacked any basis of procedural fairness. The applicant
attempted to remedy this situation by giving the
third respondent a
‘Notice of Contemplated Retrenchment’ on the 4 September
2008. The commissioner said that
he had to look at the
intention of the applicant with a contemplated retrenchment after
dismissing the third respondent.
The conclusion one draw from
this act was that the applicant wanted to remedy a wrong and in so
doing effecting a dismissal that
has been dealt with procedurally.
The commissioner found that the offer of ‘contemplated
retrenchment’ was not
unconditional but one that had the intent
of terminating the third respondent after having covered the
procedural defect in the
original dismissal. The applicant at
no time cross examined or challenged the third respondent’s
evidence.
7.
The commissioner said that considering the third respondent’s
length of service with the employer and the merits of this
matter he
concluded that the employer should compensate the third respondent
remuneration equal to the amount of 10 months salary.
The
commissioner found that the applicant could not prove the substantive
and procedural fairness of the dismissal, or the ‘contemplated
retrenchment’. The applicant was ordered to pay the third
respondent the sum of R20 000.00 x 10 months = R200 000.00
within 14
days from receiving this award.
The grounds of
review
8.
The applicant contended that the commissioner committed a gross
irregularity, alternatively misconduct, in the performance of
his
duties for the following reasons:
8.1
The commissioner failed to consider the evidence properly before him
that the third respondent
worked for Glenaire Hyper Meat and Chicken
Hillfox CC and not the applicant at the time of his dismissal.
8.2
The commissioner failed to consider the evidence properly before him
and incorrectly recorded
the salary as R20 000.00 when in fact not
supported by the third respondent’s own bank account detail
which was R12 000.00.
8.3
The commissioner seems to have viewed the conversation between the
third respondent and
the representatives of the applicant on 31
August 2008 and 4 September 2008 as constituting a dismissal.
He has concluded
that the section 189 notice on 4 September 2008 was
nothing more than a rise to deal with an unlawful dismissal.
The evidence
does not suggest that the third respondent was dismissed
before 4 September 2008. The conclusion reached by the
commissioner
is simply not supported by the evidence properly before
him. If he was so dismissed, it follows that the referral made
by
the third respondent to the first respondent was out of time since
in his 7.11 he states that the dismissal occurred on 17 September
2008. If the conclusion is incorrect, the commissioner simply
failed to consider the evidence that the third respondent frustrated
the consultation process by walking out of the consultations on 17
September 2008.
8.4
The commissioner ought not to have admitted or had reference to the
evidence led in relation
to the settlement discussions held on 17
September 2008. The settlement discussions are by its nature
without prejudice and
there are sound reasons for the trier of the
fact not being made aware of same. The commissioner’s
conclusions were
based in part on his being privy to those
discussions.
8.5
To the extent that the commissioner found that the dismissal rather
than the retrenchment
of the third respondent was neither
procedurally nor substantively unfair, the referral was brought out
of time and condonation
was not sought for the late filing thereof, a
factor which the commissioner failed to consider. If there was
a dismissal
then same would have taken place on either 31 August 2008
or 1 September 2008 and his referral should have been made before 30
September 2008. The commissioner was precluded from hearing
such a complaint without a condonation application.
Analysis of the
facts and arguments raised
9.
The applicant has raised a number of review grounds. The
applicant has abandoned the first ground of review which relates
to
who the third respondent’s employer was. The third
respondent had pleaded in his answering affidavit that he was
employed by the applicant. The applicant admitted this. At the
arbitration hearing the applicant’s representative did
not
dispute that the third respondent was an employee of the applicant.
10.
It is not necessary to deal with all the other grounds of review save
for the issue of whether a dismissal had taken place.
One of
the issues that the commissioner had to decide is whether a dismissal
had taken place. Obviously if a dismissal had
taken place, the
commissioner had to make such a finding. Once he had made such
a finding he had to decide when the dismissal
had taken place and of
so whether the referral was made on time. It is not entirely clear
whether the commissioner has made a finding
that a dismissal had
taken place. He said that the applicant could not prove the
substantive and procedural fairness of the
third respondent or the
contemplated retrenchment. It is also not clear why the
third respondent had tried to speak
to Emmanuel and complained to his
secretary that Joe could not just dismiss him. It is also
unclear why he attended the meeting
on 17 September 2006 if he had
already been dismissed on 1 September 2006. It is also unclear
why in his referral to the
first respondent he stated that his
dismissal took place on 17 September 2006. If he was dismissed on 17
September 2006 his referral
would have been on time.
11.
It cannot be said that the commissioner’s award is one that a
reasonable decision maker would have made. The application
stands to be dismissed.
12.
I do not believe that this is a matter where costs should follow the
result.
13.
In the circumstances I make the following order:
13.1
The arbitration award dated 31 March 2009 made under case number
MTG-0537-2 by the commissioner is
reviewed and set aside
13.2
The dispute is referred to the first respondent for a
de
novo
hearing before another
commissioner other than the second respondent.
13.3
There is no order as to costs.
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: M
LENNOX INSTRUCTED BY MONI ATTORNEYS
FOR THIRD
RESPONDENT :
H P VAN NIEWENHUIZEN INSTRUCTED BY BOUWER CARDONA INC
DATE OF
JUDGMENT
: 26
OCTOBER 2010