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[2011] ZALCJHB 134
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Rham Equipment (Pty) Ltd v Mafani NO and Others (JR 1385/2007) [2011] ZALCJHB 134 (8 July 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not Reportable
Case no: JR 1385/2007
In the matter between:
RHAM EQUIPMENT (PTY) LTD
...................................................
Applicant
and
GCINI MAFANI N.O
.............................................................
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
...............................
Second
Respondent
THEO BRINK GENIS
.........................................................
Third
Respondent
Date of hearing : 5 July 2011
Date of judgment : 8 July 2011
JUDGMENT
FOURIE AJ
[1] Following an altercation in which he had been told to ‘f-off’
by Mr Alcaraz, the applicant’s chairman and
controlling
shareholder, the third respondent (“the employee”) left
the company premises, and claimed to have been
dismissed. The
applicant’s attempts to persuade the employee that he had not
been dismissed, and that he should return to
work, were unsuccessful.
[2] The employee referred a complaint of unfair dismissal to the
CCMA, and the matter ultimately came before the first respondent
(‘the arbitrator’) for arbitration. The issue of whether
a dismissal occurred was placed squarely in dispute.
[3] The arbitrator found that the employee had been dismissed, that
subsequent offers of reinstatement were not genuine, and awarded
compensation equivalent to 3 months’ salary, an amount of R120,
000.
[4] The applicant duly launched proceedings to review the arbitration
award. The matter is unopposed.
[5] For present purposes, the only possible definition of “dismissal”
which the employee sought to rely upon to discharge
the onus of
proving a dismissal, is s 186(1)(a) of the LRA, which defines
“dismissal” as “an employer has terminated
a
contract of employment with or without notice”. The employee
did not allege a constructive dismissal.
[6] The issue of whether a dismissal occurred or not is a
jurisdictional fact. A "dismissal” as defined in s 186(1)
must have occurred (if this is placed in dispute, the employee bears
the onus to prove it - see s 192(1)) before the dispute-resolution
mechanism provisions (s 191) and subsequent powers of arbitrators
(ss136, 138, 142) take effect.
[7] The CCMA has no power to determine its own jurisdiction.
Obviously an assessment and provisional finding will be made by an
arbitrator (who, having assumed jurisdiction, will normally proceed
to arbitrate on the merits), but this is always subject to
final
determination by the Labour Court
1
.
[8] Accordingly, in determining the issue of whether a dismissal
occurred, a review Court is not limited to an assessment of whether
the arbitrator’s decision was reasonable (in the
Sidumoand
Another v Rustenburg Platinum Mines Ltd
And Others
2
sense). The Court will consider the issue
de novo
3
.
[9] The transcript placed before the Court is incomplete. In
particular the evidence of the applicant’s witnesses has not
been transcribed. While I am not entirely satisfied that all
reasonable steps were taken to reconstruct the record, I intend
dealing
with the application on the evidence placed before Court.
Given the extent of delays that have occurred, and the fact that the
CCMA is at least partially responsible for the failure to place a
complete record before the Court, this seems to be a fair approach.
[10] In order to ascertain whether the employee was dismissed, it is
necessary to consider the events of 21 February 2006 in the
context
of the working environment and relationships between the individuals
involved.
[11] Alcaraz was known to the employee (who had worked at the company
for 10 years, and occupied a senior position) to have a volatile
temper. They had from time to time in the past been involved in
heated altercations, and had made peace thereafter. On the day
in
question, an altercation initially arose between Alcaraz and Mr
Lloyd, the managing director. This occurred in a management
meeting
attended by the employee. After Alcaraz repeatedly told Lloyd to
“f-off”, Lloyd responded that he was resigning
with
immediate effect, and left.
[12] Shortly thereafter an altercation arose between Alcaraz and the
employee, relating to Lloyd’s work. When the employee
rose to
leave the meeting, Alcaraz shouted after him that if he walks away
“he will go the same way as Lloyd”. The
employee returned
and asked Alcaraz what he meant, and whether he was being told to
leave, to which Alcaraz repeatedly replied
“you can f-off”.
[13] The employee left the premises. Shortly thereafter, he received
telephone calls from both Alcaraz and Mr Naidoo (the financial
director) to the effect that he had not been dismissed, and that he
should return to work. This was confirmed a few days later
in a
letter from the applicant inviting the employee to resume his duties.
The employee refused to return to work. He took up employment
elsewhere approximately 1 month thereafter. The applicant paid the
employee’s medical aid for a further 2 months after he
had
left. The employee testified that the aim of this was that the
applicant wanted him to come back to work.
[14] On an objective assessment of the available evidence, I find
that the employee decided to terminate the employment relationship,
following the altercation with Alcaraz. Alcaraz did not intend to
dismiss the employee, and his words (although harsh) were not
intended to convey a dismissal, and were not understood as such. At
best the employee understood that he had the option of resigning
if
he refused to work with Alcaraz, as Lloyd had done.
[15] In my view the employee failed to discharge the onus that the
employer terminated his services. It follows that the CCMA lacks
jurisdiction to entertain the claim.
[16] Even if I am wrong, and a dismissal occurred, the fact of the
repeated (and genuine) offers for the employee to resume employment
would strongly militate against the granting of any compensation
whatsoever.
4
[17] The review application accordingly succeeds and the award is set
aside. I now turn to consider whether to refer the rescission
application back to the CCMA for hearing afresh, or to substitute the
award. In
Southern Sun Hotel Interests
5
,
van Niekerk J explained the correct approach to this issue as
follows:
“
The
LAC and this court have held that they should correct a decision
rather than refer it back to the CCMA for a hearing de novo
in the
following circumstances: (i) where the end result is a foregone
conclusion and it would merely be a waste of time to order
the CCMA
to reconsider the matter; (ii) where a further delay would cause
unjustified prejudice to the parties; (iii) where the
CCMA has
exhibited such bias or incompetence that it would be unfair to
require the applicant to submit to the same jurisdiction
again; or
(iv) where the court is in as good a position as the CCMA to make the
decision itself
.”
[18] In this matter, factors (ii) and (iv) are present. For these
reasons I made the following order:
1. The arbitration award under CCMA Case no GAJB4938/06 dated 30
April 2007 is reviewed and set aside.
2. The award is replaced with an award in the following terms:
“
The
applicant has failed to discharge the onus resting on him to prove
the existence of a dismissal. The claim is dismissed.”
3. No order as to costs
__________________
GA Fourie
Acting Judge of the Labour Court
Appearances:
For the applicant: Paul Farinha
Paul Farinha Attorneys
For the respondents: Unopposed
1
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SA Rugby Players Union and Another
(2008)
29
(2008)
29 ILJ
(2008)
29 ILJ 2218 (LAC)
;
S
anlam
Life Insurance Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2009)
30 ILJ 2903 (LAC)
2
2008
(2) SA 24
(CC)
3
Chabeli
v CCMA & Others
(2010)
31 ILJ 1343 (LC)
4
Kemp
t/a Centralmed v Rawlins
(2009)
30 ILJ 2677 (LAC);
Rawlins
v Kemp
(483/09)
[2010] ZASCA 102
5
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & Others
(2010)
31 ILJ 452 (LC) at para 33