About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 149
|
|
Tsotetsi v Commission for Conciliation Mediation and Arbitration and Others (JR 730/08) [2011] ZALCJHB 149 (28 September 2011)
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: JR 730/08
In the matter between:
TSOTETSI, S A
......................................................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
.................................................................
First
Respondent
RAFFEE, M (
N.O.
)
....................................................................
First
Respondent
MULTIMED
...............................................................................
First
Respondent
JUDGMENT ON LEAVE TO APPEAL
LAGRANGE, J:
[1] This is an application for leave
to appeal against a judgement handed down by the Honourable Justice
Zilwa AJ, on 25 January
2011 dismissing an application to review an
award issued by the second respondent, A CCMA commissioner on 26
March 2008. The learned
judge set out the applicant's grounds of
review, which may be summarised as follows:
(a) the commissioner failed to
consider the matter afresh after it had been referred back to the
CCMA, following a previous review
application, and merely issued the
same ruling as the original commissioner.
(b) The commissioner was biased and
referred to the Tint being represented by an advocate on the internal
hearing, whereas no evidence
of this nature was provided by either of
the parties.
(c) The commissioner failed to conduct
the arbitration fairly and independently of the previous
commissioner's ruling. The commissioner
abused his powers for his own
gain and did not comply with the principles of mediation and
arbitration
(d) the commissioner reached his
findings with out evaluating the evidence deposed to in the bundle of
documents.
[2] The learned judge found that the
essence of the applicant's complaint was that the commissioner failed
to consider the matter
afresh and simply adopted the decision of the
previous commissioner. The court found that there was not a shred of
merit in the
argument because the matter was clearly heard afresh
with evidence being led by both parties and that the applicant was
represented
by a legal representative during the proceedings, Mr
Molamola. Further argument was presented by both parties after which
the arbitrator
took some time to consider his decision. The court was
satisfied that the award was based on the evidence before the
arbitrator
and the arbitrator summarised evidence that was before him
and came to the conclusion that the third respondents’ evidence
was more plausible when compared with the applicant's version which
was so flawed and full of improbabilities that it should be
rejected.
[3] Furthermore, the court did not
accept that merely because the commissioner mentioned the name of
another advocate as the applicant's
representative and that was
indicative of bias on his part and noted that the applicant himself
had made a mistake about who was
representing him during argument of
the review application.
[4] In so far as it was claimed that
the arbitrator failed to evaluate the evidence before him to reach a
proper decision, the court
was satisfied that on the standard of a
reasonable commissioner it could not be said that the commissioner
had acted unreasonably
in this regard.
Grounds of appeal
[5] The applicant submits that the
court erred by overlooking the commissioner's referral to the
previous commissioner's award in
circumstances where he was ordered
to consider the matter afresh.
[6] In a similar vein, the applicant
submits that the court erred in finding that because the previous
court order did not specify
that the commissioner could not have
regard to the previous award as a record of the preceding that there
was no reason why it
should not be considered relevant. He argues
further that the statement made by the commissioner about the
previous commissioner's
award showed that he failed to consider the
matter afresh and the court failed to have proper regard to this.
[7] The court also allegedly erred in
not realising that the commissioner failed to properly evaluate
whether or not the applicant
had intended to resign voluntarily or
not. Lastly, the applicant contends that the court wrongly preferred
ed the employer’s
evidence to that of the applicant on the
disputed issues, though he provides no particulars in support of this
claim.
[8] Without putting too fine a point
on it, the applicant’s grounds of appeal are almost identical
to his original grounds
of review, namely that: the commissioner was
unduly influenced by the first commissioner's award; he did not apply
his mind to
the matter, and he was biased.
[9] Regarding the commissioner’s
mistaken reference to an advocate Van der Walt, it appears that this
was a result of the
company's representative mistakenly referring to
the applicant's representative, advocate Bester, as advocate Van der
Waal. It
would appear that this was an understandable error and I
agree that it has no obvious bearing on the question whether or not
the
commissioner was biased.
[10] In the course of the arbitration
proceedings, it is apparent that from time to time the previous award
was referred to by all
parties including the. For example, the
arbitrator referred to the applicant's claim, which had been recorded
in the first award,
that the employer had made his employment
intolerable by withholding the outcome of the disciplinary enquiry he
had been subjected
to. The arbitrator asked if there were any other
reasons why he had resigned, to which the applicant responded that he
had also
not received his salary on 15 May 2003 as he should have.
Likewise, the employer’s representative when cross-examining
the
applicant contrasted evidence as recorded in the previous award
with the applicant's testimony in the second arbitration hearing.
At
the end of the arbitration proceedings, when the commissioner was
debating various aspects of the applicant's case with his
representative, the arbitrator indicated that the previous
commissioner had 'messed up' and asked the applicant's representative
why he should not make the same finding. This appears to be nothing
more than a rhetorical device to obtain a response from the
applicant’s representative, who then replied by arguing that in
the previous arbitration the arbitrator had failed to have
regard to
the circumstances surrounding the applicant's resignation.
[11] It is noteworthy, that at no
stage when parties referred to the previous award during the
arbitration proceedings was any objection
made by the applicant or
his representative.
[12] In the arbitrator's award, he
made no mention of the arbitration award at all and refers only to
the evidence that was laid
before him. In his evaluation of the
evidence, the arbitrator follows the sequence of events leading to
the termination of the
applicant's services and examines the
applicant's own reasons why he claimed he had been constructively
dismissed. In the end the
arbitrator concluded that even if a
disciplinary enquiry had taken place and he had not yet been informed
of the outcome and even
if the employer advised him that the trust
relationship had been broken, the arbitrator decided that those were
not sufficient
grounds for concluding that he had no alternative but
to resign. The arbitrator was clearly concerned that they appeared to
have
been no pressure on the applicant to resign, and accordingly
held that the applicant had failed to discharge the onus of proving
that he was constructively dismissed.
Events leading to the termination
of the applicant’s employment
[13] The applicant was notified of a
disciplinary hearing over an alleged fraudulent medical claim. The
hearing was due to take
place on 10 and 11 April 2003. The arbitrator
held that the applicant was advised by his union official and
advocate who is representing
him that he should resign because the
evidence against him was overwhelming. The applicant claims that the
enquiry did take place
and he was advised that he would be informed
telephonically of the outcome. On the evidence it would appear that
there was a meeting
and discussions between representatives of the
employer and the applicant's representatives. During that meeting it
seems that
the management representative shared the employer’s
intended evidence with the applicant and his representatives and it
was
on that basis that his representatives formed the view that he
should not undergo the disciplinary enquiry. The applicant for his
part appears to have interpreted the meeting as part of the hearing.
[14] On 15 May 2003 the applicant
submitted his written resignation making it effective from 30 April
2003. In his evidence the
applicant claimed that on 15 May 2003 he
had been issued with a certificate of service showing that his
service ended on the 30
April 2003 and was told that the trust
relationship had broken down when he went to the office to complain
that he had not received
his salary by then. His evidence was that he
had been instructed to write the letter of resignation after the
respondent refused
to issue him with a notice of dismissal. It must
be said, that his explanation for why he would have simply complied
with such
an instruction is difficult to understand. Moreover, the
applicant’s erstwhile union representative, Louw, who testified
he was present when the applicant submitted his resignation, was not
tested under cross-examination on this version of the applicant.
The
arbitrator's conclusion was that the most likely explanation was that
the applicant decided to resign because of the advice
that he had
received from his representatives. It does not appear to me that the
commissioner acted unreasonably in preferring
the respondent's
version of evidence to that of the applicant on this critical issue.
For that reason I think it is unlikely that
another court would
differ with Judge Zilwa’s conclusions in this respect.
Conclusion
[15]
Having examined the arbitration award against the evidence led in the
arbitration hearing and on consideration of the arbitrator’s
reasoning, I do not believe there is any prospect of the applicant
succeeding with any of his grounds of appeal on the basis of
the
analysis above.
[16]
Accordingly, the application for leave to appeal is dismissed. No
order is made as to costs
R LAGRANGE, J
JUDGE OF THE LABOUR COURT
Date
of judgment: 28 September 2011
(In
chambers)