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[2011] ZALCJHB 186
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Computershare Investor Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 515/08) [2011] ZALCJHB 186 (26 September 2011)
VAN NIEKERK J
Not
reportable
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO JR 515/08
In
the matter between:
COMPUTERSHARE
INVESTOR SERVICES (PTY) LTD APPLICANT
and
THE
COMMISSION FOR CONCILIATION MEDIATION
AND
ARBITRATION 1
ST
RESPONDENT
COMMISSIONER
R BRACKS N.O 2
ND
RESPONDENT
THEMBINKOSI
VICTOR MABUZA 3
RD
RESPONDENT
Date of hearing: 26
August 2011
Date of judgment: 26
September 2011
JUDGMENT
VAN
NIEKERK J
Introduction
[1] This is an
application to review and set aside an arbitration award made by the
second respondent (‘the commissioner’).
In his award,
the commissioner held that the third respondent (‘Mabuza’)
had been unfairly dismissed and ordered the
applicant to pay him
compensation in a sum equivalent to five months remuneration.
The
award
[2] At issue in the
arbitration was whether Mabuza had been dismissed and if so, whether
his dismissal was unfair. The commissioner
summarised the evidence in
his award, and I do not intend to repeat that summary here. For
present purposes, it was common cause
that Mabuza was employed by the
National Empowerment Fund (NEF). He was offered employment by the
applicant, and it is not disputed
that a written agreement was
concluded in terms of which Mabuza would be engaged by the applicant
with effect from 1 October 2007.
Mabuza intended to take off the
month of September, on the basis that he would be available to assist
with the completion of a
project at the NEF. It is also not disputed
that on 28 August 2007, two days before Mabuza was scheduled to leave
the NEF, the
applicant’s CEO, Lorge, called Mabuza to a meeting
at the Grill House. Lorge told Mabuza that he had had a visit from
the
NEF’s senior management who expressed their unhappiness
with the applicant’s approach to Mabuza and at his subsequent
appointment. Further, given the nature of the relationship between
the NEF and the applicant a number of governance issues had
been
raised, all triggered by Mabuza’s appointment. Lorge had
replied that it was Mabuza who had approached the applicant,
but he
nevertheless took the decision to withdraw the offer made to Mabuza
on account of the relationship that the applicant enjoyed
with the
NEF and his concern that the relationship should not be prejudiced.
Lorge told Mabuza that for these reasons, he was withdrawing
the
offer of employment.
[3] Lorge’s
version was that he had made it clear to Mabuza prior to making the
offer of employment that the management of
the NEF would have to be
happy for him to accept employment with the applicant, and that
Mabuza has assured him that he had spoken
to the NEF’s
management and that there was no such objection.
[4] Mabuza’s
version was that in the absence of the CEO who was overseas at the
time, he had informed the chairperson of the
NEF in mid-July of his
decision to resign, and disclosed that would be commencing employment
with the applicant. He stated that
while the NEF was not happy with
his decision in the sense that they were reluctant to lose him, they
raised no objection to it,
nor to his accepting employment offered by
the applicant.
Analysis
[5] The basis on which
an award can be set aside is well –established. The court may
interfere if and only if the decision
to which the commissioner came
was so unreasonable that no reasonable person could have come to that
decision (
Sidumo & another v Rustenburg Platinum Mines &
others
[2007] 12 BLLR 1097
(CC)). The arbitrator’s analysis
of the evidence before him extended to three elements. The first was
whether in the face
of the applicant’s contention that there
was a suspensive condition to the effect that Mabuza’s
appointment was conditional
on him having secured the NEF’s
agreement to his employment by the applicant a valid agreement had
been concluded. The second
question was whether Mabuza was an
employee of the applicant. The third condition was whether Mabuza’s
dismissal was substantively
and procedurally fair.
[6] The award is not a
model award, but I do not think, for the reasons set out below, that
it represents a decision to which no
reasonable decision-maker could
come.
[7] Mr. Crawford
(correctly) did not seek to attack the commissioner’s finding
as to Mabuza’s employment status. It
is now well –established
that a person who is party to an employment contract but who has not
commenced work is an ‘employee’
as defined in s 213 of
the Act. (see
Wyeth SA (Pty) ltd v Manquele & others
[2003]
7 BLLR 734
(LAC)).
[8] The second element,
which the commissioner cast as an enquiry into the validity of the
agreement, is really an enquiry into
the existence or otherwise of
any suspensive condition. Here, the commissioner found that there was
no suspensive condition. It
was common cause that the written
agreement concluded between the parties did not contain a clause to
the effect that Mabuza’s
employment was conditional on the
NEF’s agreement to his being employed by the applicant. The
commissioner applied the parol
evidence rule and held that in
determining the dispute before him he was confined to the terms of
the written contract. The applicant’s
case had been that there
was a verbal agreement between Lorge and Mabuza to the effect that
Mabuza would secure from the NEF that
there was no objection to his
being employed by the applicant. Mabuza’s case was that he had
advised the NEF of the identity
of his new employer, and that there
was no objection to his employment by the applicant. In other words,
Mabuza’s version
was that if there was any suspensive condition
that attached to the contract, it had in any event been fulfilled.
The commissioner
notes the dispute of fact:
“
The Respondent
contended that there was an agreement that he would inform his
ex-employer of his intention to resign. He advised
that he had done
so while his ex-employer disputes this. No satisfactory explanation
had been given why the Respondent chose to
believe the NEF and not
the Applicant. The only plausible reason one can ascribe to the
Respondent accepting the word of the NEF’s
management is
because of the business relationship.”
In other words, the
commissioner clearly acknowledged Lorge’s dilemma. Either he
accepted that Mabuza had told him the truth
and honoured the contract
that had been signed with him, or he accepted the NEF’s version
that Mabuza had not told them
that he intended accepting an offer of
employment from the applicant. In his evidence, Lorge was candid
about this, and gave his
reasons for choosing to accept the NEF’s
version. But this does not establish that Mabuza was lying when says
that he told
Lorge that he had spoken to the chairperson of the NEF
and that he had expressed no objection to his employment by the
applicant.
The commissioner appears to accept that Mabuza’s
version, and it follows from that finding that any suspensive
condition
that there may have been was fulfilled. Contrary to what
the applicant submits, there is no contradiction in this formulation,
nor is there any flaw in the commissioner’s logic.
[9] In so far as the
applicant submits that the commissioner erred in making the factual
findings that he did on the evidence before
him, the threshold for
interference is set high. In
Bestel v Astral Operations Ltd &
others.
Davis JA emphasised that the ultimate principle on which
a review is based is justification for the decision as opposed to the
decision
being correct. The court confirmed that a review court deals
with a test of ‘reasonableness, not the rightness of agency
findings of fact. The question is whether the evidence is such that
the reasonable person acting reasonably could have reached the
same
decision from the evidence and the inferences’ (at paragraph
[16] of the judgment). It is only where a commissioner
makes a
finding that is based on speculation, or is not supported by evidence
that is sufficiently reasonable to justify the decision,
or that is
made in ignorance of evidence that was not contradicted, that the
commissioner arrives at a decision to which no reasonable
decision-maker could reach. In the present instance, in my view, it
cannot be said that the commissioner’s finding of fact
or the
conclusions that he drew from the evidence fall into this category.
[10] It was not
contested that Mabuza had not been afforded a hearing prior to his
dismissal.
[11] The applicant also
seeks to have the amount of compensation awarded to Mabuza reviewed.
The record discloses that it was not
disputed that as a consequence
of the applicant’s actions, Mabuza was unemployed for a period
of three months. Given the
fact that that there was no procedural
fairness established, and given the not unreasonable finding that the
applicant had in effect
made a choice between Mabuza’s interest
and it own commercial interests, the amount of compensation awarded
is not so unreasonable
that interference is warranted. Finally, there
is no reason why costs should not follow the result.
I make the following
order
The application is
dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE OF THE LABOUR
COURT
Appearances:
For the applicant: Mr. J
Crawford, Crawford and Associates.
For the respondent: Adv
T Manchu instructed by Mashiane, Moodley & Monama Inc.