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[2011] ZALCJHB 102
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Mokhethi v General Public Service Sectoral Bargaining Council and Others (JR1563/10) [2011] ZALCJHB 102; (2012) 33 ILJ 1215 (LC) (25 November 2011)
13
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 1563/10
In the matter between:
PULENG MOKHETHI
…...................................................................................
Applicant
and
GENERAL PUBLIC SERVICE
SECTORAL
BARGAINING COUNCIL
….................................................................
First
Respondent
PANELIST J MTHEMBU N.O
….....................................................
Second
Respondent
MEMBER OF THE
EXECUTIVE COUNCIL
FOR POLICE, ROADS AND
TRANSPORT,
FREE STATE PROVINCIAL
GOVERNMENT
….................................
Third
respondent
Heard
on: 26 October 2011
Delivered on: 25
November 2011
JUDGEMENT
BOQWANA AJ
Introduction
This is an application
to review and set aside the arbitration award made by the second
respondent (“the commissioner”)
under case number
GPBC1075/2009 and dated 01 April 2010 in terms of which the
commissioner found that the applicant, Ms P C Mokhethi
did not have
an ‘employment relation’ with the Department of Traffic
Management (“the department”) and
could accordingly not
have been unfairly dismissed. The commissioner accordingly dismissed
the unfair dismissal claim.
This application was
preceded by an application for condonation filed by the applicant
for the late filing of the review application,
which I granted. I do
not want to burden this judgment with my findings on the condonation
application. My reasons for granting
the condonation would clearly
appear on record.
There are essentially
two issues to be decided by this Court. The one issue relates to the
conduct of the commissioner who is
alleged to have deprived the
applicant of an opportunity to lead evidence and the other issue
relates to the finding by the commissioner
that the applicant was
not an employee.
The applicant brought
this application on the basis of the
Sidumo
1
test. She seeks an order
to set aside the commissioner’s award on the basis that it is
unlawful, unreasonable and procedurally
unfair. This in my view is a
completely wrong test for the kind of review sought by the
applicant. The question before the commissioner
was whether an
employment relationship existed and if so, whether the dismissal of
the applicant was fair. The issue before the
commissioner went to
the jurisdiction of the first respondent.
The
approach to be adopted in dealing with review of jurisdictional
ruling has been set out in
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others; SA Rugby (Pty) Ltd v SARPU and Another,
2
where the court held
that the CCMA being a creature of statute did not have the power to
determine its jurisdiction but may do
so for convenience. In other
words, the CCMA or the bargaining council cannot grant itself
jurisdiction which it does not have.
This means the question of
whether the CCMA or a bargaining council has jurisdiction is a
matter to be determined by the Labour
Court. The Labour Court
determines the existence or otherwise of the jurisdiction of the
CCMA or the bargaining on the basis
of the existence of objective
facts.
3
It is common cause that
the proceedings before the commissioner were not mechanically
recorded and accordingly there is no transcribed
record of the
arbitration proceedings. There are also no hand-written notes or
copies of the submissions made before the commissioner
at the
arbitration hearing.
I am however satisfied
that based on the affidavits and submissions made before me by the
parties read together with the arbitration
award, the facts placed
before me are sufficiently clear in order to objectively determine
the existence of an employment relationship.
Facts
On 07 July 2009, an
official of the third respondent, one Mr M P Nkhi, wrote and
addressed a document (“a submission”)
to the third
respondent requesting ‘approval for a counter offer for senior
provincial inspector ME P Mokhethi, (the applicant)’.
This was
said to have been a re-submission of an earlier submission that had
apparently been made but went missing. This submission
was approved
by the third respondent on 14 July 2009.
It is common cause
between the parties that at the time the submission was made and
approved the applicant was not an employee
of the third respondent.
It also seems to be
common cause that the applicant had previously been in the employ of
the third respondent. She was transferred
to the Free State Traffic
Management Directorate on 31 August 2004. She then resigned from the
public service on 12 August 2008
to take up a better position with
the Public Servants Association (“the PSA”).
It is the applicant’s
case that on 03 August 2009, she rejoined the department after she
was contacted telephonically by
the officials of the third
respondent, in particular one Mr Sease who is the Director of
Traffic Management and Chief Director
Phahlo.
Mr Sease had verbally
informed her that the submission was approved by the third
respondent to‘re-appoint’ her as
the Control Provincial
Inspector. Mr Sease advised her to report at the department in order
to resume her duties.
Upon her arrival at the
third respondent on 03 August 2009, the applicant contends that she
was introduced to staff as a ‘new
appointee’ after which
she was issued with an appointment card under persal number
17276439, given a new uniform and attended
an induction. This is not
disputed by the third respondent.
The applicant
accordingly contends that these actions meant that she was an
employee and further constituted ‘tools of work’
serving
to prove that there was an employment relationship between her and
the third respondent.
The applicant alleges
that she resigned from her employment with the PSA as result of her
‘re-appointment’ by the
third respondent.
On 04 August 2009, the
applicant was verbally advised that the submission had been
withdrawn and that she should leave the department’s
premises.
This, the applicant contends, was done without affording her an
opportunity to be heard.
On 05 August 2009, the
submission was rescinded by the third respondent, based on the
recommendation to do so by the HRM &
Office Administrator and
Head of Department.
Grounds for Review
The applicant has not
crystallised her grounds for review in a clear manner apart from
grouping a set of facts, which she called
‘Chronology of facts
relating to the review application’. Based on the reading of
the founding affidavit and the
applicant’s heads of argument,
the grounds for review can be summed up as follows:
The commissioner
committed a gross irregularity in that, at the commencement of the
arbitration hearing, he did not afford the
applicant an opportunity
to testify and give evidence in relation to her case, despite being
present. The commissioner simply
heard opening addresses from both
parties’ representatives and thereafter requested the parties
to submit closing argument.
This conduct amounts to a mistrial of
the hearing proceedings;
The commissioner
committed a further gross irregularity by concluding that the
applicant was no longer an employee and that the
third respondent
was misled in approving the submission, for the reason that,
although the applicant was not afforded an opportunity
to testify
whilst being present at the arbitration, her representative told the
commissioner that both the Chief Director Phahlo
and Director,
Traffic Management, Mr Sease had called her to come to work and
resume her duties with the third respondent. Her
representative
further told the commissioner that the applicant was given a work
uniform, attended induction and also introduced
to the staff
employees of the third respondent. The commissioner committed gross
irregularity when he ignored and departed materially
from the
provisions of section 200 A (f) of the
Labour Relations Act 66 of
1995
as amended.
The commissioner
committed a gross irregularity when he unlawfully misdirected
himself to the fact that the applicant was unfairly
dismissed
without the third respondent having followed a fair procedure nor
ever giving her a fair reason for her dismissal in
terms of the law
relating to termination of her employment.
The commissioner
committed a gross irregularity in that his recommendation at
paragraph 31 of his arbitration award that the third
respondent
should take disciplinary action against Mr Nkhi and Mr Sease for the
handling of this matter was compelling him to
find that the
applicant was an employee.
Evaluation
The question I have to
answer in this matter is whether the objective facts presented by
the applicant establish jurisdiction
of the first respondent. The
question will be answered in the positive if facts that assert
jurisdiction of the first respondent
are present. If such facts do
not exist, the first respondent had no jurisdiction irrespective of
its finding to the contrary.
4
Relying on the judgment
in Sanlam
Insurance
Life Insurance Limited v CCMA and Others,
5
Molahlehi J in
J
& J Freeze Trust
6
held that:
‘
In
Sanlam
Insurance Life Insurance Limited v CCMA and Others,
7
the court
held that in determining jurisdictional reviews, the Labour Court was
called upon to decide
de
novo
whether
there was an employer/employee relationship between the parties. In
other words, as stated by this Court in the recently
unreported case
of
Pick
It Up v Marwashe,
8
the test in
reviews concerning the jurisdiction of the CCMA or the bargaining
council is not that of a reasonable decision maker
as is the case in
the general review cases but whether the objective facts as they
existed formed the basis upon which the CCMA
or the bargaining
council could assume jurisdiction. It would seem even the issue of
the correctness or otherwise of the decision
of the commissioner is
in this respect irrelevant. In other words the court in the
jurisdictional review may well find that the
decision of the
commissioner or the arbitrator was correct, but it is critical that
the court has to apply its own mind and determine
whether the
objective facts as presented gave the commissioner or the arbitrator
the jurisdiction upon which the dispute could
be entertained by the
CCMA or the council. It therefore follows from the above discussion
that, I am called upon to determine whether
the objective facts
provided the first respondent with the necessary jurisdiction to
entertain the alleged unfair dismissal dispute
of the third
respondent.’
Although the key issue
in the present matter concerns jurisdiction which this Court has the
power to determine from the facts
as presented by the papers of the
parties, for the purposes of completeness I deal first with the
grounds for review which relate
to the process of how the
proceedings were conducted by the second respondent
.
The applicant contends
that she was not given an opportunity to lead evidence at the
arbitration hearing in relation to her employment
status. In the
case of
Southern
Sun Hotel Interests (Pty) Ltd and Others
9
,
Van Niekerk J held that:
‘
...
section
145
requires that the outcome of CCMA proceedings (as represented by
the commissioner’s decision) must fall within a band of
reasonableness, but this does not preclude this Court from
scrutinising the process in terms of which the decision was made. If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant, or the commissioner
commits
some other misconduct or a gross irregularity during the proceedings
under review and a party is likely to be prejudiced
as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the proceedings or whether
on the basis
of the record of the proceedings, that result is nonetheless capable
of justification.’
This approach was also
followed in the
SA
Airways (Pty) Ltd v Blackburn and Others
case.
10
The court in that case
held that these errors (flowing from gross irregularity) also
constitute acts of what may be termed as
‘process-related
unreasonableness’.
11
The applicant submits
that she was not afforded an opportunity to give evidence. According
to the applicant, the commissioner,
after listening to the opening
addresses of both parties simply requested the parties to file
closing argument without being
allowed to testify and to give
evidence under oath.
I am not convinced that
the commissioner’s conduct was grossly irregular for a number
of reasons. The first reason being
that the applicant was
represented by a union official, a certain Mr Greef of the PSA who
in the applicant’s own version
submitted the facts to the
commissioner. There is no evidence nor any submission made on behalf
of the applicant that Mr Greef
or the applicant insisted that the
applicant wanted to give oral evidence instead of only submitting
argument and that the request
was refused by the commissioner.
In the unreported
judgement of
BHP Billiton Klipspruit Colliery v NUM obo Dlamini
Alexander and Others
12
,
Savage AJ held as follows:
‘
Section
138(1)
of the LRA permits commissioners in the course of arbitration
proceedings to ‘deal with the substantial merits of the dispute
with the minimum of legal formalities’. In undertaking such
task, a commissioner is entitled to ‘conduct the arbitration
in
a manner that the commissioner considers appropriate in order to
determine the dispute fairly and quickly’. Commissioners
must
however be guided by at least three considerations: the resolution of
the real dispute between the parties; as expeditiously
as possible;
and in a matter which is fair’.
13
”
It is normal in
instances where a jurisdictional issue is raised for parties to
agree to determine the issue at hand on papers
or by way or
argument. For example, in the case of
Wyeth
SA (Pty) Ltd
v
Manqele
and Others
14
where the arbitrator had
to determine an existence of an employment relationship, parties
agreed that this point could be determined
on the papers.
15
It would have been
expected that the applicant’s representatives would raise any
unhappiness with the commissioner in respect
of how the proceedings
were conducted. There is no suggestion in the founding affidavit
that Mr Greef requested or that he insisted
that the applicant
wished to lead evidence. On the contrary, the applicant alleges that
her representatives told the commissioner
what the facts were and
the commissioner ignored those facts.
In
any event,
it
seems to me that the applicant would have presented no additional
evidence apart from the submissions made to the commissioner
by her
representatives. Mr Ponoane who appeared on behalf of the applicant
conceded to such during oral argument.
I am therefore satisfied
that the commissioner’s conduct was not grossly irregular.
Even if I am wrong on this, this Court
has to look at the facts
independently and objectively to determine whether the first
respondent had the necessary jurisdiction
to entertain the dispute
in the first place.
Did an employment
relationship exist?
In determining the
employment relationship, the first question that should be asked is
whether an employment contract was concluded.
In
Jack
v Director- General Department of Environmental Affairs
16
,
Pillay J held that:
‘
Historically,
the requirements for a contract of employment were derived from the
statutory definition of “employee”.
It is logical to
follow that approach as there cannot be a contract of employment
unless the parties thereto are employer and employee
either at common
law or as defined in statutes. At common law, a contract of
employment
(locatio
condition operarum)
was
a consensual contract whereby an employee undertook to place his
personal services for a certain period of time at the disposal
of an
employer who in turn undertook to pay him the wages or salary agreed
upon in consideration for his services
.
’
17
Section 213
of the LRA
defines an “employee” as –
‘
(a) any
person, excluding an independent contractor, who works for another
person or for the State and who receives, or is entitled
to receive,
any remuneration; and
(b) Any other person who in any manner
assists in carrying on or conducting the business of the employer,’
It is now established in
our law ‘that the definition of employee in
section 213
of the
LRA can be read to include a person or persons who has or have
concluded a contract or contracts of employment the commencement
of
which is or are deferred to a future date or dates.’
18
The applicant’s
contention is that she was offered employment by the third
respondent on the basis of the submission approved
by the third
respondent, which she accepted. It is common cause that at the time
the submission was written and approved by the
third respondent the
applicant was not an employee of the third respondent.
The submission purported
to motivate for a higher position for the applicant and was
presented as a request for a counter-offer
for the applicant. The
applicant accepts that she was not employed by the third respondent
during that time but by the PSA. She
had long left the employ of the
third respondent. The submission created a wrong impression that the
applicant was still an employee
at the time of the submission when
she was not.
I am not convinced that
the submission made by the third respondent constituted an offer.
Firstly, the submission was an internal
document which sought
approval of a counter-offer (for an incumbent who was not in the
employ of the third respondent). The applicant
knew that this
submission was misleading. The submission accordingly had no terms
and conditions stipulated to establish a contract.
It was merely a
document seeking approval of the counter-offer to be made to the
applicant.
Secondly, I am also not
convinced that the telephone call made by Mr Sease or Mr Phahlo
established an offer. The applicant bears
the
onus
to show
that an offer was made. She ought to provide clear terms of the
offer that was communicated to her and in my view she
has not done
that. She cannot simply rely on the content of the submission. In my
view, she has failed to show what was offered
to her by Sease or
Phahlo apart from the contents of the submission which were clearly
incorrect and misleading.
I accept that in terms
of general principles of common law a contract need not be reduced
to writing in order to be binding. The
applicant, however, has in my
view failed to show any elements of the alleged oral agreement.
Typical elements of a contract
of employment would be issues such as
salary and benefits offered, commencement date of the agreement and
the job description.
The applicant has shown none of that.
Thirdly, the Public
Service Act, 1994 (“PS Act”) read with its regulations
prescribe peremptory processes for appointment,
which include
advertisement and selection processes.
19
It is not disputed that
the applicant was not appointed in terms of the selection procedures
applicable to public service employees,
in that the post in which
she was allegedly appointed was not advertised and consequently no
applications were received from
a pool of candidates. The applicant
knew about these procedures. It would therefore be an anomaly for
her to be appointed without
those being followed and simply on the
basis of a telephone call and assurances allegedly made by an
official of the third respondent
that the submission (which
contained misleading information) had been approved.
It becomes irrelevant in
my view that the applicant reported at the station, was given a
uniform, attended an induction,
obtained
an appointment card and was introduced to staff as a new appointee,
if the existence of a
contract (i.e. offer made and accepted) has not been established.
In my view, the
applicant has not placed before this Court facts which objectively
speaking establish the existence of the employment
relationship and
accordingly, the first respondent does not have jurisdiction to
entertain the dispute.
Costs
I have also decided to
deal with the issue of costs. The court has discretion on whether to
award costs having regard to the requirements
of law and fairness. I
take into account that the applicant is unemployed and had submitted
in her application for condonation
that she was unable to raise
funds to get legal assistance in bringing this review application.
She resigned from her previous
employ notwithstanding her reliance
on an unlawfully obtained submission. She should not be penalised
for the actions of the
officials of the third respondent. It has not
been proven that the applicant was party to the generation of that
submission.
Having regard to the above circumstances, I find that it
will not be in the interest of justice to award costs.
I therefore make the
following order:
The application is
dismissed.
There is no order as to
costs.
________________
Boqwana AJ
APPEARANCES:
FOR THE APPLICANTS: M.J.
Ponoane for Ponoane Attorneys
FOR THE RESPONDENTS: S.S.
Jonase for State Attorney
1
Sidum
o
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12
BLLR 1097
(CC) at para 110.
2
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC).
3
See
J & J Freeze Trust v The Statutory Council for the Squid and
Related Fisheries of SA and Others
(unreported judgement dated
20 July
2011 P 530/09)
at para 21.
4
See
Global Outdoor Systems Ltd v Du Toit and Others
(2011) 32 ILJ
1100 (LC).
5
Unreported
Case JA38/08.
6
J
& J Freeze supra at paragraph 22.
7
Unreported
Case JA38/08.
8
Unreported
C
ase number, JR1613
/09.
9
[2009]
11 BLLR 1128
(LC) at para 17.
10
[2010]
3 BLLR 305
(LC).
11
SA
Airways
at para 21
12
Case
no: JR 650/10.
13
CUSA
v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (1) BCLR 1.
14
[2005]
6 BLLR 523
(LAC).
15
Wyeth
at paragraph 7.
16
[2003]
1 BLLR 28
(LC) at paras 11-12.
17
As
was expressed in
Smith v Workmen’s Compensation
Commissioner
1979 (1) SA 51
(A) at 56E-F.
18
Wyeth
SA (Pty) Ltd v Manqele and Others
[2005] 6 BLLR 523
(LAC).
19
Sections
9-12A of the Public Service Act, 1994 read with Chapter 1, part VII
of the Public Service Regulations.