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[2011] ZALCJHB 68
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Evan Gordon Enterprises (Pty) Ltd v Phetla NO and Others (JR 1147/07) [2011] ZALCJHB 68; (2012) 33 ILJ 229 (LC) (16 August 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: JR 1147/07
In the matter between:
EVAN GORDON ENTERPRISES (PTY) LTD
…....................................
Applicant
and
M PHETLA (
N.O.
)
…..................................................................
First
Respondent
NATIONAL BARGAINING COUNCIL
FOR THE CHEMICAL INDUSTRIES
…...............................
Second
Respondent
LAMOLA ANDRIES CHUENE
….............................................
Third
Respondent
JUDGMENT
LAGRANGE, J:
Background
There are two applications for
consideration in this matter. The first is an application in terms
of section 145 of the Labour
Relations Act 66 of 1995 (' the LRA')
to review and set aside the first respondent's arbitration award
dated 13 April 2007.
The arbitrator found that the third
respondent, Mr LA Chuene, had been unfairly dismissed by the
employer on 12 January 2007.
The arbitrator held that the dismissal
was only substantively unfair and awarded Chuene compensation of 12
months remuneration
on the basis that the continuation of the
employment relationship between the employer and employee was
impractical. The second
application is an application under rule 11
of the labour court rules to dismiss the review application.
Chuene had been charged with making
threats to assault or kill fellow employees as well as managers and
directors. The threatening
conduct was allegedly directed at two
fellow employees, a security guard, Mr E Gordon (a director) and Mr
W Gordon (a manager
and E Gordon's brother). The independent
chairperson who was appointed to chair the disciplinary enquiry
found that there was
insufficient evidence to find Chuene guilty of
threatening most of these individuals. However he found that,
despite having
more than one opportunity to do so, Chuene did not
deny having threatened W Gordon's life, nor did he really deny that
the
effect of his threat was that W Gordon was too frightened to
have anything to do with him thereafter. The only defence which
Chuene offered was that he thought the matter had been resolved in
a subsequent meeting between them. The chairperson accordingly
found him guilty of threatening W Gordon's life and after
considering the pros and cons of an appropriate sanction dismissed
him.
The rule 11 application
The review application was launched
timeously and on 31 May 2007 the relevant bargaining Council filed
the record of the arbitration
proceedings with the labour court
under rule 7 A (2) (b), supposedly including two tapes recording
the oral evidence. It appears
that the tapes were not included in
the record filed with the registrar. Chuene's attorneys made
enquiries in October 2008
about the lack of progress in the review
application and were advised that the bargaining Council had not
been able to locate
the relevant tapes and that the applicant was
in the process of transcribing the arbitrator's handwritten notes.
This transcript
was forwarded to Chuene’s attorneys in mid
November 2008. The applicant’s attorney then claims that it
was contacted
by a person claiming to be Chuene's new attorneys
asking the applicant not to proceed further with the review
application but
to explore the possibility of settling the matter.
The alleged attorney later phoned to say that she was having
difficulty
getting hold of Chuene but that she would revert to the
applicant’s attorneys. It was only in September 2009 that
Chuene’s
original attorneys then filed the rule 11
application.
It must be said that the explanation
for the delay in pursuing the review application between November
2008 and September 2009
is thin on factual detail to say the
least.. There is no attempt made to identify the alleged new
attorney, nor is any explanation
provided why the applicants did
not try to confirm in writing the supposed request to delay the
proceedings to permit settlement
discussions to take place. This is
the normal step one would expect an attorney to take in
circumstances where it is important
to avoid unjustifiable delays
in proceedings. Nonetheless, the launching of the rule 11
application had the desired effect
of bringing matters to a head
resulting in the review being set down for hearing. Although I have
considerable difficulty accepting
at face value in the explanation
for the delay in question, for the reasons mentioned, it must also
be said that Chuene did
not take any steps to put the applicant on
terms during this period, but only took a further step in September
2009 when he
filed the rule 11 application. It must also be borne
in mind that the applicant in the review application did launch the
proceedings
timeously and did take steps, on its own initiative, to
remedy the absence of a transcript of the evidence owing to the
inability
of the bargaining Council to produce the tape recordings.
In the circumstances, I do not think
this is an instance where the review application ought to be
dismissed on account of undue
delay, but should rather to be
decided on its merits.
The arbitrator's award
The circumstances in which the
alleged threat was uttered was that sometime in December 2005, W
Gordon heard a lot of hooting
outside the applicant's store. On
investigation he found that Chuene had parked his car in a way that
obstructed a customer's
vehicle from exiting. He spoke to Chuene
who continued speaking with somebody else. Chuene subsequently
moved his car but did
not move it enough for the customer to leave.
W Gordon approached Chuene again and shouted at him about moving
his vehicle.
He claims it was necessary to shout because both
vehicles engines were running. Chuene became angry and shortly
afterwards
approached W Gordon and told him, he might "make a
mistake and shoot him". Chuene admits shouting at W Gordon but
denies making the explicit threat which was alleged. W Gordon
conceded that the two of them were urged to discuss the matter
and
Chuene had agreed he would not shoot him, but the issue remained
unresolved as far as he was concerned. He did not recall
the two of
them being told they should shake hands and make peace as alleged
by Chuene. He maintained that, in any event, his
father, Gordon
senior, could not have done so because he had passed away by then.
Chuene did not dispute that an incident had
taken place but said it
had occurred in October.
Apart from when the incident took
place, the only other significant fact in issue was what Chuene had
said to W Gordon. Chuene
says he never threatened to kill him but
simply told him not to shout at him. He further claimed that the
issue was resolved
at the time in terms of a discussion between
them, and accordingly the whole incident was water under the
bridge. The reason
he believes that the charges have been brought
against him was that he subsequently joined a union. According to
the findings
of the chairperson of the disciplinary hearing it
appears that the defence he offered then was that he thought the
matter had
been resolved.
It seems that at the disciplinary
hearing that Chuene did not dispute that a threat had been made nor
did he suggest that the
charges had been initiated for an
illegitimate reason relating to his union affiliation.
In order to determine which version
of events was more probable, the arbitrator seized on the
contradiction between W Gordon's
evidence in chief that the
altercation occurred on 26 December 2005 and his later testimony
that it took place earlier that
month, but not in October as
claimed by Chuene. The arbitrator found that this was a material
inconsistency. The arbitrator
went on to say:
"
The consideration of the
inconsistency presented by W Gordon's and Gordon's evidence presents
lends credence to the employees
of argument that there is probably a
motive or vested interest in the testimony of W Gordon she, such as
that the Gordon is his
brother and hence he supports his evidence
merely on that basis. Accordingly, the evidence of the employer is
to be rejected
whereas that of the employee that the incident
occurred during October 2005 is to be preferred
" (
sic
).
Significantly, on the basis of
accepting that the incident occurred in October 2005, the
arbitrator also found, that it followed
therefore that the
dismissal of Chuene was based on the arbitrary ground of him
joining the union. This was because the arbitrator
surmised that
the issue of the alleged threat had probably been resolved owing to
the amount of time that had passed between
the incident in October
2005 and the disciplinary hearing in January 2006.
Grounds of review
The applicant seeks to review the
arbitrator's award on two grounds. Firstly, it claims that the
Commissioner did not record
the evidence presented correctly and
that consequently his findings and the reasons therefore were not
rationally connected
to the evidence before him. It also claims the
arbitrator's reason for accepting the employee’s version
rather than the
employer version was irrational.
In its supplementary affidavit, the
applicant added two further grounds of review. It argued that if
the arbitrator believed
that the reason for the employee’s
dismissal was an improper one, then it was irrational of him to
make a finding on
the procedural fairness of the dismissal. It was
not open to the Commissioner to find both that the dismissal was
substantively
unfair and procedurally unfair under the
circumstances. Secondly, if the Commissioner believed that the
reason for Chuene’s
dismissal was due to him joining a union,
then he ought to have realised that he was dealing with an
automatically unfair dismissal
in terms of section 187 (1) in terms
of which the employer had supposedly acted contrary to section 5 of
the LRA. Such a claim
is not capable of arbitration and should have
been referred to the labour court.
On the issue of the procedural
fairness of the enquiry, the applicant is correct that where a
finding of automatically unfair
dismissal is made, a finding of
procedural unfairness will be beside the point because the fairness
of proceedings can only
be entertained as an issue bearing on the
fairness of the dismissal where the actual reason for dismissal is
a competent one
for which a fair procedure exists. If the true
reason for dismissal is not a lawful one, no amount of the
procedural rigour
accompanying that illegitimate dismissal matters.
An employee who believes that he or
she has been dismissed for a reason that is automatically unfair
may elect to waive their
claim that the dismissal was automatically
unfair, and may be content to simply claim that the dismissal was
unfair for the
ostensible reason given by the employer, thereby
casting the onus on the employer to prove the fairness of the
dismissal, and
avoiding the onerous burden of proving an
autotmatically unfair However, if in the course of the arbitration,
an employee directly
raises an unlawful reason as the true reason
for the dismissal and that reason falls within the ambit of an
automatically unfair
dismissal as described in section 187 of the
Labour Relations Act, 66 of 1995 (‘the LRA’), then the
arbitrator
must pause and consider which type of unfair dismissal
she is truly being asked to determine.
This issue is closely related to the
other ground of review namely that the arbitrator had no
jurisdiction to decide whether
the employee had been dismissed for
an automatically unfair reason. However, in this instance, even
though the arbitrator effectively
agreed that the real reason for
the dismissal was an improper one, his final conclusion was that
the dismissal could not be
substantively fair for this reason. His
ultimate conclusion could be based on one of two subsidiary
findings, neither of which
were articulated in the award. Firstly,
he might have accepted that the employer had indeed established
grounds of misconduct
which could justify dismissal, but that in
fact the employer did not take the decision for that legitimate
reason but for the
improper motive that it wanted to rid itself of
a unionist. Alternatively, the employer’s failure to to prove
dismissible
misconduct on the part of Chuene also lent support to a
conclusion that the real reason was an ulterior and forbidden one.
What is noticeable about the
arbitrator's award, is that he does not appear to make a clear
finding whether or not the employee
did make the threat to W
Gordon, but merely concerned himself with the timing of the alleged
incident. Thus, in saying that
he accepted the evidence of the
employee over that of the employer he seems to confine his finding
only to the
timing
of the alleged incident. Once he accepted
the employee’s version of the timing, the arbitrator then
inferred that the
delay between the incident and the disciplinary
enquiry supported the employee’s version that the reason he
had been
charged was because of his subsequent involvement in the
union.
In the light of this, it appears to
me that the only plausible interpretation of the arbitrator’s
conclusion is that he
took the view that, whatever the merits of the
charge of misconduct, the employer had not been actuated by those
merits to charge
and dismiss the employee, but had done so because
of the employee’s union activities. Moreover, that the
arbitrator did
not base his ultimate conclusion on whether or not
the charge against the employee had been proved, but whether or not
the dismissal
was motivated by an improper objective on the
employer’s part. Consequently, I can only infer that the
arbitrator effectively
decided the matter on the basis that it was
an automatically unfair dismissal in terms of section 187 read with
section 5(2)(c)(i)
of the LRA, which prohibits the dismissal of
employees on account of their union membership. When the issue of
union membership
came to the fore late in the hearing as the
supposed reason for the dismissal, the arbitrator should have
enquired whether the
employee was now seeking to rely on that reason
as the reason for his dismissal and to advise him that he had no
jurisdiction
to determine the fairness of the dismissal on that
basis unless both parties consented to the CCMA jurisdiction in
terms of section
141(1) of the LRA.
Accordingly, the arbitrator decided
the fairness of the dismissal on grounds beyond his remit and his
award must be set aside,
even if he still limited the award of
compensation to twelve months.
Relief
This is not a matter that ought to
be sent back to be heard before another commissioner because as it
stands the dispute ought
to have been referred to the Labour Court
by the employee. In my view the only appropriate substitution of
the arbitrator’s
award is to replace it with a ruling that
the CCMA has no jurisdiction to determine the dispute.
Order
In the light of the analysis above,
The first respondent’s
arbitration award dated 13 April 2007, under case number GPCHEM3628
is reviewed and set aside
The arbitrator’s award is
substituted with a finding that the CCMA lacks jurisdiction to
determine the dismissal dispute
which falls within the ambit of
section 187(1) read with
section 5(2)(c)(i)
of the
Labour Relations
Act 66 of 1995
.
No order is made as to costs
R LAGRANGE
JUDGE OF THE LABOUR COURT
Date of hearing: 08 June 2010
Date
of judgment: 16 August 2011
Attendance:
For
the Applicant: Craig Berkowitz
For
the Respondent: J D Verster