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[2011] ZALCJHB 104
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Renier Reyneke Vervoer CC t/a Premium Trucking v Commission for Conciliation, Mediation and Arbitration and Others (JR697/08) [2011] ZALCJHB 104; [2012] 5 BLLR 523 (LC); (2012) 33 ILJ 1262 (LC) (2 December 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: JR 697/08
In the matter between:
RENIER
REYNEKE VERVOER CC
trading
as PREMIUM TRUCKING
….................................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…....................................
First
Respondent
COMMISSIONER HAROLD MATSEPE N.O
….........................
Second Respondent
E D MEYER
Third Respondent
Heard
:
27 October
2011
Delivered
:
2 December
2011
Summary : Review – jurisdictional point- arbitrator required
to determine whether employee resigned or was dismissed - had
no
jurisdiction to determine whether dismissal unfair – granted.
JUDGMENT
BHOOLA J:
Introduction
This is an application in terms of section 145 of the Labour
Relations Act
1
(the Act) to review and set aside the arbitration award issued by
the second respondent (the arbitrator) under the auspices of
the
first respondent on 4 March 2008, in which the dismissal of the
third respondent (the employee) was held to be procedurally
and
substantively unfair.
Background facts
It is common cause that the employee was summoned to a meeting with
Anna Reyneke, the General Manager of the applicant, a family
business on Friday 16 January 2004. She was issued with a notice
purportedly issued in terms of section 189(3) of the Act indicating
that the applicant was in financial difficulty and was required to
retrench staff. The letter invited her to make representations
notice either orally or in writing, by 20 or 21 January 2004. The
retrenchments were envisaged to take effect in February 2004.
At the
end of the meeting the employee requested a letter of reference, and
Reyneke undertook to provide one. She left the office
shortly after
the meeting, having requested a colleague, Bridget Marais, to inform
Reyneke that she wanted her furniture returned
to her. Marais
conveyed this message to Reyneke that afternoon. It is further
common cause that the employee did not return to
work that afternoon
and that her furniture was returned to her that weekend. Furthermore
she did not report for work on Monday
19 February, but delivered a
letter to the applicant alleging that she had been dismissed on the
Friday.
The employee referred a dispute to the first respondent arising from
her dismissal. A default arbitration award was issued which
was
subsequently reviewed and set aside by this Court. The matter was
then remitted to the first respondent for an arbitration
de novo
.
At the second arbitration the only issue before the arbitrator was
“whether the applicant was dismissed or walked away
on her own
accord”.
The award
[6] The arbitrator found that the applicant believed that the
employee had resigned because:
after the retrenchment process was explained to her she requested a
reference letter;
she informed a co-worker that she was going home and that her
personal effects should be returned to her; and
she failed to report for duty on Monday, 19 January 2004, after
having left work and having failed to carry out her duties the
previous Friday afternoon.
[7] The arbitrator therefore found that in these circumstances the
applicant could reasonably have concluded that she had resigned.
However, notwithstanding this conclusion, the arbitrator went on to
find that “the misunderstanding or myth under which [the
employee] was regarding the status of [the applicant] between 16/1/04
and 18/1/04 was clarified or put to rest on 19/1/04 when
[the
employee] wrote to [applicant] and alleged that she was unfairly
dismissed. At that stage [the applicant] now knew that [the
employee]
alleges that she has not resigned but was unfairly dismissed, as
alleged”. The arbitrator accordingly found that,
in response to
the employee’s letter of 19 January 2004, the applicant ought
to have called her in to correct the situation
and explained to her
inter alia
:
that she was not dismissed;
that her job was still intact;
that the company was only going through a retrenchment process;
that representations are still awaited from her; and
that she should return to work immediately, failing which the
company code would take its course on absence without permission
or
on abscondment with all the consequences.
[8] The arbitrator concluded that "it is unfortunate that [the
applicant] concluded, on the face of the facts before it, that
[the
employee] indeed resigned on her own free will. This was not an
unreasonable belief but [the applicant] could easily have
verified
the actual situation".
[9] This was followed by the finding that although the employee was
not initially dismissed on Friday 16 January 2004, she was
subsequently dismissed by the conduct of the applicant as per
paragraph 7 of its letter in reply to her letter of 19 January. In
paragraph 7 the applicant stated that it accepted her voluntary
departure from her employment. In other words, the arbitrator found
that the employee had not been dismissed on Friday 16 January 2004 as
she alleged, but on a later date when the applicant accepted
her
resignation. On this basis the arbitrator ruled that her dismissal
was procedurally and substantively unfair and awarded her
five
months’ salary as compensation.
Merits of the review
[10] Mr Fourie submits that the arbitrator’s finding that the
employee had been unfairly dismissed could not be sustained
on the
facts by virtue of the following:
(a) Firstly, the employee alleged that she was dismissed on Friday 16
January 2004 but did not discharge the onus of proof in this
regard.
Even if, as the arbitrator accepts on the employee’s version,
Reyneke had said that she should look for alternative
employment,
this did not discharge the onus of proving her dismissal. The
arbitrator found that she had not been dismissed on the
Friday but
mistakenly believed so. This should have ended the matter but the
arbitrator nevertheless proceeded to determine whether
the employee
was dismissed a week later. The issue before him was simply whether
the employee had resigned or had been dismissed
on the Friday. In
failing to confine himself to the issue before him the arbitrator
failed to appreciate the true nature of the
enquiry before him and
committed a material error of law.
(b) Secondly, having found that the applicant was reasonably entitled
to conclude that the employee had resigned on Friday 16 January
2004,
the arbitrator proceeded to conclude that she had been dismissed when
the applicant accepted her voluntary departure thereafter.
This
amounts to a finding that the applicant dismissed the third
respondent by accepting her resignation. Mr Fourie submitted that
the
arbitrator was not required to accept that resignation constitutes a
unilateral act. This is trite law.
2
It is therefore not possible in law for an employer to dismiss an
employee by accepting her resignation. This finding accordingly
constitutes a further material error of law.
[11] Mr Fourie submitted that this was a jurisdictional review and
therefore this Court was not constrained by the standard test
on
review. He relied on the following
dictum
of Tlaletsi AJA (as
he then was) in
SA Rugby Players’ Association and Others; SA
Rugby (Pty) Ltd v SA Rugby Players’ Union and Another.
3
‘
[39]
The issue that was before the commissioner was whether there had been
a dismissal or not. It is an issue that goes to the jurisdiction
of
the CCMA.
The
significance of establishing whether there was a dismissal or not is
to determine whether the CCMA had jurisdiction to entertain
the
dispute
4
.
It follows that if there was no dismissal, then the CCMA had no
jurisdiction to entertain the dispute in terms of s 191 of the
Act.
[40]
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court.
In
Benicon
Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others
(1994) 15
ILJ
801 (LAC) at 804 C-D, the court
said:
”
In
practice, however, an Industrial Court would be short-sighted if it
made no such enquiry before embarking upon its task. Just
as it would
be fool hardy to embark upon proceedings which are bound to be
fruitless, so too would it be fainthearted to abort
the proceedings
because of a jurisdictional challenge which is clearly without
merit.”
[41]
The
question before the court a quo was whether on the facts of the case
a dismissal had taken place. The question was not whether
the finding
of the commissioner that there had been a dismissal of the three
players was justifiable, rational or reasonable. The
issue was simply
whether objectively speaking, the facts which would give the CCMA
jurisdiction to entertain the dispute existed.
If such facts did not
exist the CCMA had no jurisdiction irrespective of its finding to the
contrary.’
[12] Mr Fourie submitted that even if the jurisdictional point were
to fail the award is still reviewable on the merits. There
is no
assessment undertaken by the arbitrator in regard to an alleged
dismissal for operational requirements. The arbitrator in
fact finds
that it is not necessary to determine the issue. Even though the
arbitrator finds correctly that the employee’s
belief that she
had been dismissed on the Friday was a misconception, he fails to
indicate on what grounds her subsequent dismissal
was unfair. On the
basis of the conclusion that “there is a case for dismissal of
applicant by respondent” he awards
her five months’
compensation.
[13] Ms Anderson, in opposing the review on behalf of the employee,
conceded that the first respondent could not determine its
own
jurisdiction, but submitted that it was for this Court to determine
the issue on the merits. In this regard Ms Anderson submitted
that it
was reasonable for the arbitrator to find that the applicant could
assume (following the departure of the employee on Friday
and her
failure to return on Monday) that she had either resigned or
absconded. However, the arbitrator went further to find that
the
applicant could not continue to operate on the basis of this
assumption once it received correspondence in which she made it
clear
that she understood that she had been dismissed on the Friday, and
alleging that this was unfair. The fact moreover that
the applicant
had employed Marais in the employee’s position, who gave
evidence honestly had occurred on 15 January in contradiction
of
Reyneke’s version, underscores the finding that it was the
applicant’s incontrovertible intention to proceed with
her
retrenchment. The employee’s evidence to the effect that
Reyneke told her that she might as well look for alternative
employment is consistent with the arbitrator’s conclusion that
she understood that she had already been retrenched. The applicant
had simply ignored the employee’s letter alleging unfair
dismissal when it could have clarified the misunderstanding, and
only
raised this issue two years later at the arbitration. The arbitrator
made the correct finding in this regard.
[14] Ms Anderson submitted that the arbitrator was faced with two
mutually destructive versions and made a reasonable conclusion
on the
probabilities in accepting that of the employee, and this cannot be
said to have resulted in an unreasonable conclusion.
Once the
arbitrator found that the employee had made out a
prima facie
case of dismissal, the applicant attracted the burden of proving that
it was not unfair and it failed to discharge this. Ms Anderson
conceded however that the arbitrator made some mistakes (for instance
in relation to the date and the events of the Friday) but
submitted
that on the whole, applying the
Sidumo
test, the award itself
was not unreasonable.
[15] It was conceded by Ms Anderson that the question of whether the
dismissal occurred a week later than was alleged by the employee
was
not before the arbitrator. Nor was the issue of whether the dismissal
was unfair for operational reasons. The only issue before
the
arbitrator was whether the third respondent had been dismissed on 16
January 2004 or had resigned, and the arbitrator had no
jurisdiction
to determine whether a dismissal had taken place at some point
thereafter. I am therefore satisfied that this matter
can be disposed
of on the jurisdictional point alone. However, if I am wrong I am
nevertheless satisfied that on the merits on
the review standard
decided in
Sidumo
5
the award is one that could not have been made by a reasonable
decision-maker on the evidence before him. The award is flawed by
virtue of the material errors of law committed by the arbitrator.
Although in his oral submissions Mr Fourie suggested that
substitution
might be more appropriate, in that
inter alia
seven years have elapsed since the dismissal and this is the second
review brought by the applicant. However, the relief sought
in the
notice of motion is to remit the matter to be determined by a
commissioner other than the second respondent. Although the
review
succeeds, I am of the view that it is not in the interests of law or
fairness to order the employee to pay the costs.
Order
[16] Therefore I make the following order:
1. The award issued on 4 March 2008 is reviewed and set aside.
2. The matter is referred to the first respondent to be determined
by a commissioner other than the second respondent.
3. There is no order as to costs.
_______________________
BHOOLA J
Judge of the Labour Court
APPEARANCES
APPLICANT: G Fourie
Instructed by Thomas & Swanepoel Attorneys, Tzaneen.
THIRD
RESPONDENT: Ms R Anderson, Riki Anderson Attorneys, Silverton.
1
66
of 1995.
2
Rustenburg
Town Council v Minister of Labour and Others
1942 TPD 221
;
Maade
v MEC of the Northern Province for Finance and Expenditure and
Another
(2003) 24 ILJ 937 (LAC);
Samuels v B and G Displays
(2005) 26 ILJ 1145 (BCA).
3
(2008)
29 ILJ 2218 (LAC) at paras 39-41.
4
Counsel’s
emphasis.
5
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405
(CC).