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[2010] ZALCJHB 32
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Mtimkulu v Commission for Conciliation Mediation And Arbitration and Others (JR1212/08) [2010] ZALCJHB 32 (2 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO JR 1212-08
In
the matter between
MTIMKULU
M
N 1st
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION 1st
Respondent
NTSOANE
D S
(N.O.) 2nd
Respondent
SOUTH
AFRICAN CIVIL AVIATION
AUTHORITY 3rd
Respondent
JUDGMENT
LAGRANGE,
J
Introduction
1.
The applicant has applied to set aside an arbitration award in which
the arbitrator found that he and another trainee’s
learnership
contracts had not been unfairly terminated by the third respondent,
the employer. The applicant’s colleague was
not a party to the
review proceedings.
Background
2.
The applicant was engaged on a learnership contract by the employer
from 5 April 2004 to 31 March 2006. When the contract came
to an end
on the latter date the applicant continued to be paid by the
employer. According to the employer’s only witness,
an HR
manager, it was only when she was investigating the payroll system in
October 2007 that she realized they were still on the
employer’s
payroll after their contracts had expired. She then took steps
to notify them of the termination of their
contracts during
October 2007. The applicant was called in so that the he could be
personally advised of the termination.
Ultimately, the applicant was
effectively given more than a month’s notice of the termination
of the relationship which ended
on 31 December 2007
3.
The applicant did not dispute that the learnership contract was due
to run for two years. He and his co-complainant were registered
at
tertiary institutions for various courses, though the applicant
complained that they were not provided with any relevant practical
training or guidance. It seems it was the first time the employer had
introduced a learnership scheme. The applicant testified
that towards
the end of 2005 he and his co-complainant had discussions with
management where they raised their concerns with the
inadequacy of
the training programme. This led to a recommendation by the acting HR
manager to the CEO to refinance their learnerships
which the
applicant alleged was agreed to. He testified that the employer
gave them the impression they would be permanently
employed and they
were not treated like trainees.
4.
The arbitrator found that the recommendation made by the acting HR
manager had been to enable them to finish their studies as
the
employer felt it did not want to leave them in lurch having
previously assisted them to register for tertiary courses. The
employer had agreed to it to enable them to finish their studies.
The applicant conceded that between 2007 and 2008 he had
not
registered for any course. The arbitrator expressed the view that in
those circumstances the applicant should have reported
back to the
respondent for further assignment. The arbitrator was also satisfied
that neither of the complainants could prove
they were still
studying nor that they were engaged in any form of employment
relationship with the employer at the time their
services were
terminated.
5.
The arbitrator found the termination of their learnerships was not an
unfair dismissal.
The
state of the record
6.
A transcript of the hearing was filed by the applicant which leaves
much to be desired. It was the subject matter of an application
by
the employer to dismiss the review application on the basis that the
applicant had failed to file a properly reconstructed record.
The
matter came before the learned judge Francis J who declined to grant
the order and directed the third respondent to proceed
with filing
its answering affidavit. Costs of that application were reserved. It
seems that the applicant had expressed the view
that he was satisfied
to proceed on the record as it was, believing that it was sufficient
for the purposes of his application.
7.
Both parties reiterated their respective stances on the state of the
transcript in the proceedings before me. It must be said
that it
despite the applicant’s confidence in it, it really cannot be
said to be a reliable account of what the various witnesses
said.
For the most part it is very garbled, quite apart from frequent
‘inaudible’ or ‘indistinct’
portions of the
record. Although there are a few relatively lucid intervals in the
transcript, not only does it seem that much
of the tie the
transcriber failed to record the actual words spoken but also managed
to order them in a consistently ungrammatical
fashion, irrespective
of whose evidence was being transcribed. Two examples, of which there
are many, will suffice to illustrate
how difficult the transcript is
to interpret.
8.
One example from the evidence of Mrs Hofmeyer, the HR manager, under
cross-examination reads:
“
Mr Mthimkulu:
Which document A1?
Mrs Hoofmeyer:
Basically document that
he was written period actually CEO from the acting senior manager
(indistinct) to making the concerning
there learnerships of three
managers. The (indistinct) statement I stated in here and there is
recommendation that is made there
and the document and sign.
Signature by the acting CEO does one indicated very (indistinct)
through (indistinct) does not improve
it to propose by Mr En Wesbee
acting actually manager. That was direct to the acting CEO but I do
not see what see to relation
firstly and I do not see the name was
proved on multiple. Again bascially this was looking at the date and
the (indistinct) 2 October
2006. I do the draft cash this document it
was I do not accepted or whatever might have be in this case or is it
appearing was
the (indistinct) even if it was implement I will refer
time to different evidence when I looked into the learner ships. At
this
stage we not enquire this page which was basically more that a
year after the date is not proved.” (
sic
)
9.
Another extract taken from the applicant’s evidence in chief at
page 163 of the record reads as follows:
“
Not student into
the fact that 2007 the CEO was moved I think on September 2006. can
you made the report on the HR as to (indistinct)
organization. And I
believe the biggest (inaudible) that is where problem like because
the people who were in charge was about
the manager. The (indistinct)
do not look before the (indistinct) at our (inaudible) in an
attendance to cover up their short comings
(inaudible). But I can
highlight to (indistinct). So 2007 I was never any training, I only
avoid myself did not sure this respective
duties of which were not in
(indistinct). However they did not dispend because you are of
(indistinct) that organization is then
prove the matter.” (
sic
)
10.
Trying to make sense of a record of this nature, requires the reader
to impose their own sense of coherence on the text which
might well
create further distortions of what was really said. Although one can
detect strands of thought and narrative beneath
the chaotic
transcription, these are not always complete, and following these
fragments is a bit like trying to follow the movement
of fish beneath
a surface of choppy waves. In the end, where the record is
insufficiently comprehensible I am compelled to
rely on the summary
of evidence by the arbitrator. Where the arbitrator has not dealt
with a particular aspect of evidence and
it cannot be determined with
any certainty from the record, I have simply not been able to draw
any conclusions about that evidence.
This may result in unfairness to
both parties, but I feel constrained to deal with the record as it
is, in view of the previous
ruling in which the court declined to
compel reconstruction of the record.
Grounds
of Review
11.
The applicant takes issue with the arbitrator’s findings on a
number of grounds, only some of which relate directly to
her findings
on the fairness of the applicant’s termination. The applicant
disputes both the substantive and procedural fairness
of the
termination of the learnership.
12.
In this
regard it must be mentioned that it is apparent from the applicant’s
evidence at the arbitration and some of the issues
raised by him on
review that he felt the learnership programme was completely
inadequate and poorly managed. There might
well have been some
justification for his complaints, and his frustrations in that regard
could have laid the basis for a substantial
grievance. Such a
grievance, if unresolved could ultimately have been referred as
an unfair labour practice dispute under
section 186(a)
of the
Labour
Relations Act, 66 of 1995
.
[1]
Nevertheless the applicant did not pursue that path at the time,
which he should have.
13.
As a result, even if there is substance to some of the applicant’s
complaints about the learnership programme, those issues
are not all
necessarily directly relevant to the question of whether or not his
employment was fairly terminated. If there had
been some binding
obligation on the employer not to terminate his services before a
particular training goal or identifiable outcome
had been attained,
or if he had been guaranteed employment on the achievement of a
certain level of skill or qualification his
complaints about the
defects of the training might well have had a direct bearing on the
fairness of the dismissal. The evidence
before the arbitrator did not
support such a conclusion. As it turns out, the only basis for the
ongoing relationship was to allow
the applicant to complete his
studies, which is discussed further below.
14.
The applicant’s grounds of review are essentially four fold. He
contests that the commissioner committed reviewable conduct
by:
14.1. disregarding
crucial evidence;
14.2. misrepresented his
evidence;
14.3. not requiring proof
of certain of the respondent’s allegations, and
14.4. in finding that his
dismissal was unfair when there was no basis for it.
15.
In his heads of argument the applicant appears to add further
grounds, but I am confined to consider the grounds of review cited
in
the founding application as supplemented by anything additional in
the applicant’s supplementary affidavit which must
set out the
factual basis of an applicant’s grounds of review.
Disregarding
crucial evidence
16.
In is well
established that an arbitrator commits a reviewable irregularity if
the arbitrator fails to consider evidence critical
to the
determination of the matter before him or her.
[2]
It follows of course that it is not necessary for an arbitrator to
consider evidence that does not have a significant bearing on
the
determination of the crucial issues.
17.
The evidence the applicant claims the commissioner failed to have
regard to was: the learnership contract identified as ‘A2’;
correspondence between the applicant and the employer which described
what the applicant refers to as the ‘status quo’
between
the contract identified as the memo ‘A1’ and the
termination period; proof of the employer’s fabrication
of
evidence of that the termination based on the expiry of the contracts
was discriminatory; proof of the employer’s intention
to avoid
its ‘responsibility’ to the applicant in terms of ‘A1’.
The applicant makes a further claim under
this ground relating to
cross-examination and the arbitrator’s analysis of evidence,
but does not provide any details of
this in his founding affidavit.
18.
The pertinent sub-clauses in clause 3 of A2 relating to the “Contract
period” read as follows:
“
3.1 The
learnership contract period shall commence on date 5 April 2004 and
shall continue for a period of 24 Months (“the
fixed period”),
terminating automatically on 31 March 2006.
3.2 This contract of
fixed term learnership programme should not be considered by the
Learner, after the fixed period, in any circumstances,
to give rise
to any expectation of continued contract or to form any contract
relationship between him /her and the CAA, other
than on the basis
expressly contained in the agreement.
3.3 In the event that
the Learner continues to be in the employ of the CAA after the expiry
of the fixed period in the absence of
any agreement concerning
contract for a further period, then the provisions of the Basic
Conditions of Contract Act No 75 of 1997,
shall apply and the CAA may
terminate his/her contract upon giving him/her one month’s
written notice.
” (
sic
)
19.
The learnership contract A2 merely records that if a learner is not
already employed the employer must conclude a contract of
employment.
It is common cause that there was such a contract but it was due to
terminate on 31 March 2006. The applicant appealed
in writing for its
extension for another two years on 19 January 2006, thereby
confirming his knowledge that the initial contract
was coming to an
end. A letter of motivation sent by the acting HR manager for the
renewal of the contract was drawn up on 10 February
206, which is
referred to as ‘A1. The acting HR manager motivated an
extension of the learnership on the basis that even
though the
original contract was silent on the question of the employer paying
for the studies of learners, the employer had instructed
them to
register at various institutions and had paid for their studies. The
courses they registered for ran for a period in excess
of the
contract periods. On the basis of a legal opinion, the HR
manager concluded that the employer might have created an
expectation
that it would fund the learners’ studies and morally it might
be justified to continuing to do so. Accordingly,
the refinancing of
the learners ‘to enable them to complete their studies’
was recommended and further that their contracts
be reviewed and
overhauled.
20.
There was no subsequent written contract concluded which sets out in
any detail the terms governing the relationship after the
expiry of
the initial contracts on 31 March 2006. It is also noteworthy that
the sole basis advanced in the memo for extending
the relationship is
related to the expectation that might have been created in relation
to payment for the learner’s studies:
no mention is made of the
need for them to still have more practical exposure to the work
environment or to acquire some level
of expertise in a particular
area of work relating to their academic qualifications.
21.
The applicant objects to the arbitrator’s characterization of
the reconsideration of the memo A1 as an ‘extension’
of
the contract. He contends instead that it entailed a review, overhaul
and redrafting of the contract in the light of what led
to the
recommendation. Indeed, this is what is recommended, but the
difficulty is that there was no evidence this was done.
It is
difficult therefore to speculate what form such an overhauled
contract might have taken. To the extent it was acted upon,
the only
reasonable inference that could be drawn from the recommendation in
favour of the applicant is that the employer would
have made a
commitment to continue to employ the applicant so that he could
complete his studies. A recommendation is merely
evidence that
such a route was contemplated, and certainly one cannot speculate on
the particular detailed form it would assume
if it was reduced to a
written contract.
22.
There is no basis in the motivation for assuming that the employer
would have undertaken further commitments such as guaranteed
employment on completion of the applicant’s studies. The
applicant did not appear to have been able to lead any clear evidence
on the agreed contractual nature of his relationship with the
employer after 31 March 2006. All he could rely on was the memorandum
which contained a motivation for extending the contract. There was
another memorandum issued earlier in January by the same acting
HR
manager in which he motivated against the extension of the
applicant’s contract, but it appears this was superseded by
the
memo of 10 February 2006, after legal advice on the expectations
created by the employer paying for learners’ studies
had been
considered. If anything, the arbitrator was generous to the
applicant’s version in accepting that the relationship
had been
allowed to continue on the basis of the HR manager’s
recommendation.
23.
In the absence of a fresh contract being concluded, it would seem
that the continued relationship was terminable on a month’s
notice in terms of clause 3.3 of the original learnership agreement
and was no longer subject to a fixed term of employment.
Assuming, in the applicant’s favour that the employer was also
prepared to extend his engagement on the basis suggested in
the memo,
which the arbitrator implicitly did, then the continuation of the
relationship would also have been contingent on him
continuing to
complete his studies with the tertiary institutions he was registered
with. Once those were completed or if he ceased
to pursue them, the
condition for ending the relationship would be met. Unlike in
the case of the fixed term contract that
ends on a particular date,
the duration of his extended employment was linked to the happening
of an event, whenever it occurred.
24.
The arbitrator did consider the applicant and his co-complainant’s
claim that they had been discriminated against in having
their
employment terminated. The applicant had tendered evidence in
the form of a document to Hofmeyer under cross-examination.
In that
document a table appears listing the commencement and termination
dates of fourteen learners. Three of the learners including
the
applicant and his co-complainant at the arbitration were on contracts
which expired on 31 March 2006. All the others were due
to end in
June or October 2007. Hofmeyer was asked by the applicant why some
persons might still be employed if they had not finished
their
courses whereas he and his co-complainant had also not finished their
courses but had been dismissed. She reiterated that
what determined
if a person would remain on the payroll after their contract had
terminated was either that they were still completing
their studies
or they were working for the organization. In the applicant’s
case he was doing neither. The applicant then
sought to challenge the
assertion that he was not ‘serving the organization at some
level’, without being specific
as to what service he claimed to
be rendering. He also asserted that he was “supposed to be
continuing with his studies”.
25.
This seems to be the principal ground on which the applicant based
his claim on discriminatory treatment. There was no tangible
evidence
to suggest that the third person whose fixed term contract had been
due to end on the same date as the two complainants’
contracts,
had been treated any differently.
26.
The applicant attacks the arbitrator’s for ignoring proof of
‘fabrication’ of the employer’s evidence
that his
termination was not discriminatory. He claims also that the
arbitrator wrongly expected him to prove that his termination
was
discriminatory when the employer bore this onus. However, before an
employer can be expected to prove that it has acted consistently,
there must at least be a basis laid by the employee for making a
claim of inconsistent treatement. When the applicant questioned
Hofmeyer about the termination of other learners contracts he did not
identify any specific instance in which he alleged someone
else’s
employment had been prolonged despite the fact that they had not
completed their studies and they were also not rendering
services to
the employer. Hofmeyer appears to have reiterated her evidence that
the criteria applied were the same in the case
of learners who were
still on the payroll, namely if they were no longer studying or not
rendering services then their employment
would be terminated. The
applicant did not put to her any instances in which these criteria
did not appear to have been applied
which she would then have had to
disprove. Instead it seems he wanted the employer to prove that every
other learner whose contract
had expired had been similarly treated.
27.
There is no
question that the employer bears the onus of proving consistent
treatment where this is an issue in a case as one of
the elements of
substantive fairness. But before it can truly said to be an issue in
a case, there must at least be some evidence
indicating apparent
inconsistency, which the employer might then need to adduce evidence
to rebut.
[3]
It cannot be said
that the applicant raised the issue of inconsistency in anything more
than a speculative way. He did not place
any prima facie evidence
before the arbitrator that other learners had been treated more
favourably than himself in terms of the
criteria applied by the
employer to discontinue the employment of learners whose contracts
had expired.
28.
On the issue of the correspondence the arbitrator allegedly ignored,
it does not appear from what I can understand of the record,
that any
pertinent reference was made to subsequent correspondence after the
expiry of the original contract. The correspondence
that was attached
to the bundle appears to indicate that there were other
recommendations under consideration about whether or
not to employ
the learners, but there is no evidence that any decisions were taken
in this regard and certainly no evidence of
agreements being
concluded which addressed this.
Misrepresentation
of the applicant’s evidence
29.
The applicant objects to the characterization of the reconsideration
of A1 as an ‘extension’ of the contract. He
contends
instead that it entailed a review, overhaul and redrafting of the
contract in the light of what led to the recommendation.
This has
been effectively dealt with in the discussion above and need not be
reconsidered here.
30.
He also objects to the arbitrator’s portrayal of him ‘knocking
on the employer’s door’ as an attempt
by him to obtain a
placement when it was in fact an attempt to obtain engagement in
departmental operations to acquire skills.
This is a difference
without significant distinction in the context in which the
observation was made and in any event was simply
part of the
arbitrator’s general narration of events which had no direct
bearing on her reasoning on any of the important
questions before
her.
31.
The applicant argues that in stating that he was under the impression
from the beginning that the employer was going to employ
them
permanently, she should have considered this in the context of what
was contained in A2 which stated, that if a learner was
not already
in the employment of the employer, the learner and the employer must
conclude a contract of employment. She should
also have considered
that: there was no learnership programme as envisaged in A2; approval
of the application of training was to
be based on the benefit of the
department in which he was positioned, and three learners with whom
he shared the same contract
were subsequently employed. The
context which the applicant alludes to is principally concerned with
his deep-seated grievance
about the inadequacies of the programme.
But the context is only relevant to the extent that it has a direct
bearing on the fairness
of his termination. To the extent it is
concerned with the inadequacies of the training programme that ought
to have been the subject
of an unfair labour practice complaint
mentioned above. The only point he raises here which might have a
bearing is the suggestion
that there was some form of unequal
treatment in the fact that he was not employed like other trainees
were, but it appears even
on his own account that this occurred in
the case of only 3 out of 13 learners. It is difficult to see on this
basis alone how
that information would be sufficient to prove that he
was no longer supposed to be employed on a learnership basis and that
he
had been permanently employed, without more substantial evidence
of why his circumstances put him in the same category as the three
who were employed.
Failing
to require the respondent to prove certain allegations
32.
According to the applicant the arbitrator should have required the
employer to verify its allegation that it had been consistent
in the
practice of terminating learner’s services when their contracts
expired. The arbitrator also failed to require
the employer to
prove that the object of the learnership contract had been achieved
at the time it was terminated. The arbitrator
ought also to have
required proof of prior proceedings relating to the employer’s
allegation that he was not at work.
33.
The first issue has already been discussed above.
34. In regard to the
objects of the learnership contract, paragraph 1.2 of the contract
states: “
The purpose of the learnership is to assist the
learner in acquiring skills within the CAA and aviation industry.”
As mentioned above, the applicant may well be right that the CAA did
not live up to what was expected of it under the contract.
However,
when it came to the life of the contract it was not linked in any way
to whether or not the obligations had been met.
While the contract
was operative, the applicant could have lodged an unfair labour
practice claim relating to any of his entitlements
to training under
the contract or he could possibly have even sought an order
compelling the employer to comply with terms of the
contract. After
the contract ended on 31 March 2006, the basis of his continued
employment by the employer was precarious.
At best for the
applicant, based on his reliance on the memo of February 2006, it
rested on him continuing to complete his course
studies. It is
apparent from his own evidence that he was last registered for a
course in 2005, so even if his employment was extended
in accordance
with the memo that would not have helped him.
35.
According to Hofmeyer, if the applicant had no longer been studying
but was rendering services to the employer on a daily basis
then his
employment would also not have been terminated. The applicant did not
challenge the claim that he was not rendering any
services with any
evidence of work he did render or to whom he reported, which ought to
have been easy for him to do if he had
in fact been working as an
ordinary employee. It was not unreasonable of the arbitrator to
conclude that he had not met either
of the criteria for continued
employment.
36.
The criticism of the failure of the arbitrator to ask for evidence of
prior proceedings where his absence from the workplace
was dealt with
is part of the applicant’s attack on the procedural unfairness
of his termination, in the context of the reason
for his termination,
is misplaced. The issue was whether or not he was actually engaged in
rendering services to the employer on
a daily basis, or whether he
was still engaged in completing his studies. It was not about whether
he was absent from the workplace
as such. The only activity that he
appeared to have been engaged in was a focus group which was a
voluntary activity and which
took place on an intermittent basis. It
was not a question of whether he was absent from work on particular
days but whether his
main activity was rendering services to the
employer on a regular basis of which there was no evidence.
37.
However, it does appear that insofar as the arbitrator found that the
termination was not automatic but was initiated
by the employer
either on account of him failing to pursue and complete his studies,
which appears to be the arbitrator’s
essential finding, or that
he had not been rendering any regular services to the employer, the
reason for termination was essentially
the non-performance of either
of those tasks by the applicant. As such the employer ought at least
to have called upon the applicant
to show cause why the contract
should not be terminate on one month’s notice in the manifest
absence of him having either
pursued his studies or rendered regular
services over a considerable period. It is true that he was called
in, but that was to
explain why his learnership was being terminated
rather than calling upon him to answer why it should not be. In
this sense
it seems the arbitrator erred in not giving proper
consideration to the question of procedural fairness, and for this
reason her
finding of fairness to the extent it relates to procedural
fairness stands to be set aside.
38.
As the facts stated above are essentially based on the employer’s
version, this is not a matter which requires further
evidence and
given the delays in this matter it makes sense for the court to
substitute its own finding and remedy in this regard.
This is dealt
with below.
Unfounded
basis for the termination
39.
The applicant identifies six reasons why the arbitrator found his
dismissal was fair, namely:
39.1. He was absent from
work;
39.2. He was not
registered for any course nor was he studying;
39.3. The objective of
the learnership had been achieved;
39.4. He was not learning
any skill from the employer;
39.5. He was paid for
doing nothing.
40.
The applicant then attacks the basis of the arbitrator’s
reasoning for arriving at these supposed grounds for his
termination. To consider the cogency of this ground of review,
it is first necessary to be satisfied that the applicant has
correctly construed the basis on which the arbitrator accepted his
dismissal as fair.
41.
It is clear that the arbitrator found that after the expiry of the
initial contract the sole reason for the continued
relationship
between the applicant and the employer was that the employer had
agreed to continue to fund his studies and keep him
on the payroll so
as to allow him to complete his studies. In reaching this conclusion
the arbitrator attached some credence to
memo of February 2006 and
accepted that the basis for retaining the applicant on the payroll
was to enable him to continue and
complete his studies, even though
there might not have been a new contract concluded. At the time the
relationship was terminated,
it was common cause that the applicant
was not engaged in any course of study and had not been since 2007.
Accordingly, the basis
on which the relationship had been
provisionally extended had fallen away. This appears to be the
central reason for the arbitrator
concluding that the employer was
entitled to terminate the employment relationship, because it was
only the continuation of his
studies which justified it.
42.
Insofar as the arbitrator also considered the effect of the applicant
not rendering services to the employer on a daily
basis, based on
Hofmeyer’ evidence, she clearly saw this as further evidence
that there was also no ordinary employment relationship
in existence
between the applicant and the employer.
43.
In essence, the commissioner understood that the continued
relationship was no longer one that would terminate on the
expiry of
the fixed term relationship but would only continue as long as the
applicant was engaged in completing his studies. As
this had not been
the case for some time the employer was entitled to terminate the
relationship when it became apparent the condition
for its
continuation was not being met. Moreover, it was not as if he was
engaged in a relationship in terms of which he was rendering
any
services to the employer. It was not an absence from work which
justified the termination, but rather this was evidence of
the
absence of any ongoing employment relationship between the applicant
and the employer.
44.
It is apparent that the arbitrator accepted that the employer
terminated the applicant’s service on notice in December
2007.
As such, the arbitrator appears to have accepted that the learnership
relationship was extended after 31 March 2006, but
on a provisional
basis: if that condition on which the extension rested no longer
applied, the employer was entitled to bring the
contract to an end.
45.
I am satisfied that the arbitrator’s conclusion was not
unreasonable that there was a substantial reason for termination
of
the contract as the only basis on which it might plausibly have
continued was so that the applicant’s could continue and
complete his studies. There is no evidence that was tendered by the
applicant to justify his failure to continue with his studies.
His
failure to ensure that he concluded them entitled the employer to
terminate the relationship.
46.
The applicant did raise the question of the procedure followed in
terminating the learnership, but he only raised this
pertinently when
he gave his own evidence and did not challenge Hofmeyer on its
shortcomings when he cross-examined her. The employer
then sought to
lead evidence in rebuttal of his evidence on procedural unfairness,
but the arbitrator refused finding no special
circumstances allowing
the employer to re-open its case.
47.
However, as mentioned above, the arbitrator did fail to consider
whether or not the employer should not have called the
applicant in
to at least give him an opportunity to justify why he had failed to
pursue his studies, or to the extent it relied
on the fact that he
was performing no services on a regular basis why he had not being do
so once he ceased studying. However
the period of inactivity on
the part of the applicant was extended and on the evidence before the
arbitrator appears to have been
not less than a year. In the
circumstances I think that an award of two month’s salary more
than compensates for the unfairness
of not convening a hearing on his
non-performance.
Costs
48.
Although the third respondent asked for a punitive cost order in view
of the state of the record, as the applicant has
been to some extent
successful I am disinclined to make a cost award.
Conclusion
49.
The application to review and set aside the arbitrator’s award
in so far as it affects her finding that that the
applicant’s
dismissal was substantively unfair is dismissed.
50.
The application to review and set aside the arbitrator’s award
in so far as it affects her finding that that the
applicant’s
dismissal was procedurally unfair is upheld.
51.
The arbitrator’s finding that the termination of the
applicant’s learnership contract did not constitute an
unfair
dismissal is substituted with a finding that the termination of the
applicant’s learnership was substantively fair
but procedurally
unfair.
52.
The third respondent is ordered to pay the applicant an amount
equivalent to two months’ remuneration calculated
at his rate
of remuneration at the time of dismissal. In the event the parties
cannot agree on the monthly remuneration, they may
remit the matter
to this court for determination.
53.
No order is made as to costs.
ROBERT
LAGRANGE
JUDGE
OF THE LABOUR COURT
Date
of hearing: 21 May 2010
Date
of judgment: 2 November 2010
Appearances:
For
the applicant: In person
For
the third respondent: Mr F Boda instructed by Eversheds Inc.
[1]
In terms of section 186(a) an unfair labour practice includes any
unfair act or omission which arises between and employer and
employee involving unfair conduct by the employer relating, amongst
other things, to the training of an employee.
[2]
See
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405 (CC)
at 2491,[268] where Ngcobo, J (as he then was) stated:
“
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his or her
mandate. In so doing, in the words of Ellis, the commissioner's
action prevents the aggrieved party from having its case fully and
fairly determined.315 This constitutes a gross irregularity
in
the conduct of the arbitration proceedings as contemplated in s
145(2)(a) (ii) of the LRA.
”
[3]
SACCAWU
& others v Irvin & Johnson Ltd
(1999)
20
ILJ
2302
at 2314, [30]