About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2011
>>
[2011] ZALCCT 55
|
|
Samsodien v Commission for Conciliation Mediation and Arbitration and Others (C 484/10) [2011] ZALCCT 55 (23 June 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not reportable
Of
interest to other judges
case
no: C 484/10
In the matter between:
JAMILLAH
SAMSODIEN
..................................................................
Applicant
and
CCMA
....................................................................................
First
respondent
CRAIG
BOSCH N.O.
.......................................................
Second
respondent
UNISA
..................................................................................
Third
respondent
Heard
:
25 May 2011
Delivered
:
23 June 2011
Summary: Review – unfair dismissal – employee not
dismissed – award not unreasonable
JUDGMENT
STEENKAMP J
Introduction
The applicant, Jamillah Samsodien, referred an unfair dismissal
dispute to the CCMA (the first respondent). The arbitrator, Craig
Bosch (the second respondent) found that she was not dismissed by
the third respondent, the University of South Africa (UNISA)
within
the meaning of s 186(1) of the Labour Relations Act
1
.
He therefore dismissed her claim for unfair dismissal. She seeks to
have that award reviewed and set aside.
Background
In early 2008, UNISA advertised positions for “casual contract
workers” in its Department of Learner Support in Parow.
The
position advertised was for a fixed term from 1 February 2008 until
31 December 2010 at a rate of R52, 00 per hour. When
the applicant
signed a contract of employment, however, the period of employment
was recorded as being from 1 February 2008 to
31 March 2008.
Notwithstanding that, UNISA’s intention was to employ her
until 31 December 2010, as offered in the advertisement,
and she
continued in employment after 31 March 2008.
In late 2009, in an attempt to solve the problem of the payment of
salaries to "ghost employees", UNISA’s human
resources department directed that all current casual workers were
to conclude written employment contracts. It then came to
his
attention. That no written contract of employment existed for the
applicant pertaining to the period of 1 February 2008 until
31
December 2010.
UNISA advised the applicant in December 2009 that she should not
coming to work until such time as the parties had concluded
a
written contract of employment, recording the terms of the
employment relationship. On 5 February 2010 one. Claudine Petersen
of UNISA that the applicant that asked her to come to work on 6
February 2010. However, some 20 minutes later, Petersen found
her
again and told her that contracts were not in place and that she
should not come into work.
According to the applicant, Petersen further again on 9 February
2010 and told her that the hourly rate would be reduced from
R52, 00
to R32, 00. The applicant regarded this as a dismissal and referred
an unfair dismissal dispute to the CCMA.
The award
The arbitrator made the following findings, as it appears from the
award:
6.1. The applicant was employed in terms of an oral fixed term
employment contract for the period February 2008 to 31 December
2010.
6.2. It was the evidence of both parties that, notwithstanding
anything to the contrary contained in the written agreement they
signed, the parties had agreed that the applicants’ term of
employment extended until December 2010.
6.3. The applicant based her claim for unfair dismissal on both
section 186 (1) (b) and s186(1)(d) of the LRA.
6.4. The arbitrator rejected the applicant's argument of unfair
dismissal in terms of section 186(1)(b) because she had failed
to
prove that the fixed term contract that being brought to an end. The
question of renewal (or the failure to renew) was therefore
not of
any relevance.
In coming to this conclusion, the arbitrator took the following
evidence into account:
7.1 The applicant testified that when she was advised that she was
not to come into work until there was a written contract of
employment in place, she did not consider this as amounting to a
termination of the employment relationship and waited to be advised
further by UNISA.
7.2 Dr Johan Jacobs of UNISA made it clear that UNISA intended to
keep the applicant on during 2010, but could not pay her without
her
having a written contract.
7.3 Included in this evidence was a letter dated 11 February 2010
from Dr Jacobs and Prof DV Roberts to the executive director
of human
resources and the executive director of learner support in which the
terms of the fixed employment agreement were recorded
and in which
appropriate written employment contracts recording these terms was
requested.
7.4 The applicant conceded that the contents of this letter made it
clear that UNISA intended to keep her on until the expiry of
the
period of the fixed term employment agreement, i.e. until the end of
December 2010.
7.5 It was probable that UNISA had employed other casual workers to
do the work of employees such as the applicant until such time
as
written employment contracts could be concluded. That was not an
indication that UNISA had terminated the applicant’s
employment.
7.6 The applicant’s reliance on s 186(1)(d) was also misplaced.
She had failed to prove the initial dismissal and she failed
to
produce any evidence that other casual employees who may have been
dismissed were subsequently re-employed after the date of
her alleged
dismissal.
The arbitrator concluded that the applicant had failed to discharge
the onus on her to prove that she had been dismissed within
the
meaning of section 186 (1) of the LRA. He therefore dismissed the
claim for unfair dismissal.
Review grounds
In her founding affidavit, the applicant based her review
application on the following grounds:
the Commissioner committed misconduct in relation to his duties,
because "he did not see my way of argument to this whole
matter and was more on the side of the respondent";
the Commissioner committed a gross irregularity in the conduct of
the arbitration proceedings because he "was not interested
at
all what I had to say and I felt inferior to this boastful
behaviour”; and
the Commissioner exceeded his powers "by not listening to my
case in this and I could sense that he was showing more of
overall
authority and not as an arbitrator."
In her supplementary affidavit, the applicant also alleged that she
"did not know how the law works if somebody gives their
affidavit as proof of evidence without being present".
At the hearing of the application, the applicant was represented by
counsel. Mr
de Kock
was granted leave to submit supplementary
heads of argument. He argued that the arbitrator's finding that the
applicant failed
to discharge the onus to prove that she was
dismissed is a decision that no other reasonable decision maker,
faced with the same
facts, could reach. He argued that the evidence
showed that the applicant was, indeed, dismissed on 9 February 2010.
The applicant did not assert any facts upon which she relies in
order to assert that the arbitrator was biased. In his argument,
Mr
de Kock
wisely abandoned this ground of review. He also did
not persist with the review grant that the arbitrator "was
boastful and
made the applicant feel inferior." Neither did he
assert that the arbitrator exceeded his powers.
The only review ground relied upon by the applicant’s counsel
was that the arbitrator's conclusion was not reasonable,
referring
to the test in
Sidumo and another v Rustenburg Platinum Mines Ltd
and others
.
2
The arbitrator commented that UNISA "took an inordinately long
time to sort out the applicant’s written contract and
deprived
the applicant and her colleagues of an opportunity to work as a
result. I do not think that his actions were in good
faith and this
dispute might have been avoided if the respondent was more efficient
in issuing a written contract to existing
employees to whom it owed
a duty of good faith. Be that as it may, the issue is not before me.
I must determine whether the applicant
has been dismissed and my
finding is that she was not."
In coming to that conclusion, it cannot be said that the arbitrator
acted unreasonably.
He correctly found that the applicant’s reliance on section
186(1)(d) of was misplaced. She alleged that she had been dismissed
on 9 February 2010 but led no evidence that any other casual workers
were dismissed and had been offered re-employment.
Neither did the applicant shows that she was dismissed within the
meaning of s 186(1)(b) or, for that matter, section 186(1)(a).
The arbitrator correctly accepted – and indeed, it was common
cause – that the applicant was employed in terms of
a fixed
term contract for the period February 2008 to 31 December 2010. He
then found that the applicant was unable to demonstrate
that the
fixed term contract was brought to an end. Even though he criticised
the conduct of UNISA, with good reason, this conclusion
is not an
unreasonable one. There was simply no termination of the oral
contract. The arbitrator was not called upon to consider
whether the
contract was suspended and whether that was fair, and he did not do
so.
With regard to the allegation that Petersen had told the applicant
that her rate of pay would be reduced from R52 to R32 per
hour, Dr
Jacobs explained in his evidence that the rate of pay for new casual
employees would be R32, but that the applicant
would continue to e
paid R52. The arbitrator appears to have accepted this evidence on
the probabilities.
In short, the arbitrator accepted that the contract of employment
had not come to an end, or was it terminated.
Conclusion
The conclusion reached by the arbitrator was one that a reasonable
conclusion maker could reach. The application for review must
fail.
With regard to costs, I take into account that the applicant, was
initially unrepresented and that she is unemployed. In law
and
fairness, I do not consider a costs order to be appropriate.
The application is dismissed with no order as to costs.
_______________________
Anton Steenkamp
Judge of the Labour Court
APPEARANCES
APPLICANT: Adv C de Kock
Instructed by CK attorneys
THIRD RESPONDENT: Adv S Fergus
Instructed by Macrobert Inc
1
Act
66 of 1995 (the LRA).
2
(2007)
28
ILJ
2405
(CC)