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[2011] ZALCJHB 158
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Touch Community Development and Project Managers (Pty) Ltd v Nkadimeng NO and Others (JR 667/2010) [2011] ZALCJHB 158 (8 July 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JR 667/2010
In the matter between:
IN TOUCH COMMUNITY DEVELOPMENT
AND PROJECT MANAGERS (PTY) LTD
.................................................
Applicant
and
DONALD KGALAKE NKADIMENG N.O.
....................................
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
..........................................
Second
Respondent
LUCIA MERRIAM NHLANGWANA
...........................................
Third
Respondent
Date of hearing : 06 July 2011
Date of judgment : 08 July 2011
REASONS FOR JUDGMENT
FOURIE AJ
On 6 July 2011 I granted an order in the following terms:
The arbitration award under CCMA Case no LP6760-09 dated 10
February 2010 is reviewed and set aside.
The award is replaced with the following award:
“
The
applicant failed to discharge the onus of proving a dismissal. The
claim is dismissed.”
No order as to costs.
The reasons for judgment follow.
The applicant (the employer) employed the third respondent (the
employee) in terms of a fixed term employment contract, which
expressly provided that employment would terminate on 31 October
2009.
On 28 September 2009, the employer reminded the employee that her
employment contract was due to expire at the end of October,
and
informed her that the contract would not be renewed or extended. A
letter to this effect was handed to the employee.
The employee then left the employer’s premises on the same
day, and failed to return to work. She referred a dispute of
alleged
unfair dismissal to the CCMA. The issue of dismissal was placed in
dispute.
The employee testified that when she was handed the letter informing
her of the termination of her employment, she was told to
leave the
premises immediately and that she would be paid until the end of
October. She also alleged a legitimate expectation
of renewal of her
contract.
The employer testified that the employee was requested to assist
with training a new appointment, and was never advised not to
work
her notice period. As she never worked during October, she was not
paid for this period, but was never dismissed. Any expectation
of a
renewed contract was denied.
The arbitrator dismissed the employee’s claim of an alleged
legitimate expectation of renewed employment, but upheld the
claim
that the employee’s fixed term contract was prematurely
terminated. The employee was awarded compensation equal to
2 months’
remuneration.
The applicant now seeks to review this award. The review application
is unopposed.
For present purposes, the only definition of “dismissal”
which the employee sought to rely upon to discharge the
onus of
proving a dismissal, is section 186(1)(a) of the Labour Relations
Act 66 of 1995 (LRA), which defines “dismissal”
as “an
employer has terminated a contract of employment with or without
notice”. The alternative claim of “dismissal”
in
the sense of a failure to renew a fixed term contract of employment
was (correctly) dismissed by the arbitrator, and is not
supported by
any evidence.
The issue of whether a dismissal occurred or not is a jurisdictional
fact. A finding of a “dismissal” as defined
in s186(1)
is a prerequisite for the dispute-resolution mechanism provisions
(s191) and subsequent powers of arbitrators (ss136,
138, 142) to
take effect. If the question of a dismissal is placed in dispute,
the employee bears the onus to prove it (s 192(1)).
The CCMA has no power to determine its own jurisdiction. Obviously
an assessment and provisional finding will normally 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
Accordingly, in determining the issue of whether a dismissal
occurred, a Court sitting on review is not limited to an assessment
of whether the arbitrator’s decision was reasonable (in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd
And
Others
2
sense). The Court will consider the issue
de novo
3
.
On an objective assessment of the evidence before the arbitrator, I
am not persuaded that the employee discharged the onus of
proving
that she was dismissed. Her version seems inherently unlikely. It
directly contradicts the contents of the letter handed
to her on 28
September 2009, which serves to confirm the termination of her
employment contract on 31 October 2009, as expressly
stipulated in
her employment contract. Her version also seems less likely than
that of the employer, whose version is supported
by the uncontested
documentary evidence. At the very least, the employee’s
version is not more probable than that of the
employer.
In the premises, the review application succeeds, and the award is
set aside. I now turn to consider whether to refer the matter
back
to the CCMA for arbitration afresh, or to substitute the award. In
Southern Sun Hotel Interests
4
,
van Niekerk J explained the correct approach to this question 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
.”
In this matter, the factors listed under (i) and (iv) were present.
For these reasons I made the order as set out above.
__________________
GA Fourie
Acting Judge of the Labour Court
Appearances
For the applicant: Nukeri Moundy
Maropeng Ramoshaba Incorporated
C/O Nukeri Inc
For the respondents: Unoppossed
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 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
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & Others
(2010) 31 ILJ
452 (LC) at para 33