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[2011] ZALCCT 67
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Nursing Services of South Africa v Commission for Conciliation Mediation and Arbitration and Others (C 256/2010) [2011] ZALCCT 67 (21 October 2011)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not Reportable
Of interest to other judges
Case no: C256/2010
In the matter between:
NURSING SERVICES OF SOUTH AFRICA
...................................................
Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
......................................................
First
Respondent
TARIQ JAMODIEN
........................................................................
Second
Respondent
ISABELLE PRETORIUS
....................................................................
Third
Respondent
Heard: 21 / 05 / 2011
Delivered: 21 / 10 / 2011
JUDGMENT
VAN VOORE AJ
1. This is an application in terms of section 145 of the
Labour Relations Act, 66 of 1995 (the LRA) to,
inter alia
,
review and set aside an arbitration award (the award) of the second
respondent (the commissioner) dated 12 February 2010. The
application
is opposed. Ms Isabelle Pretorius (Pretorius) was employed by the
Nursing Services of South Africa (the applicant)
until October 2009.
Pretorius alleged that she was unfairly dismissed and referred an
alleged unfair dismissal dispute to the Commission
for Conciliation,
Mediation and Arbitration (the CCMA). The applicant contended that
Pretorius’ employment had been terminated
in terms of a
voluntary retrenchment agreement.
2. Following arbitration proceedings under the auspices
of the CCMA, the commissioner made an arbitration award in which he
found
that the dismissal of Pretorius was both substantively and
procedurally unfair and awarded that the applicant must pay Pretorius
‘compensation in the amount of R138 000 (calculated as R23 000
per month X 6 months
).
This amount shall be paid
into her bank account by 15 March 2010.’
1
The review grounds
3. The applicant contends that the commissioner heard
and did not properly consider the evidence before him in arriving at
his conclusion
that Pretorius resigned under duress. Further the
applicant contends that the commissioner had prejudged the matter and
that the
arbitration award is not justifiable ‘in terms of the
factual matrix of the matter’. The applicant also contends that
the commissioner was biased in favour of Pretorius. Further the
applicant contends that the commissioner failed to exercise his
discretion in a judicial manner in awarding compensation. Yet
further, the applicant contends that the commissioner erred in the
manner in which he conducted the arbitration proceeding. The
applicant specifically alleges that the commissioner conducted the
arbitration proceedings on the basis that it was agreed that
Pretorius was dismissed for operational requirements. The applicant
contends that Pretorius’ employment was terminated by agreement
between the parties. In this regard, the applicant also relies
on
pre-arbitration proceedings and a proposed pre-arbitration minute.
The applicant contends that the commissioner’s view
of its
responses to the propositions put to it in the pre-arbitration
proceedings distorted his assessment of the parties’
respective
cases.
The Background
4. Pretorius was employed by the applicant at its
Nelspruit branch during August 2008. Pretorius was transferred, with
promotion,
to the applicant’s Cape Town office with effect from
June 2009. On 9 October 2009, Pretorius was called to a meeting with
the applicant’s Mr J Zietsman (Zietsman). During this meeting,
Zietsman on behalf of the applicant, and Pretorius discussed
her
employment with the applicant going forward, and if she were to
remain in employment, what the terms and conditions of such
employment would be. It is not disputed that one of the matters
discussed between Zietsman and Pretorius in the meeting of 9 October
2009 was the possible retrenchment of Pretorius. It is further not
disputed that it was also raised with Pretorius that she could
accept
a much reduced salary of R13 000 per month or face retrenchment. At
that stage, Pretorius was earning a salary of R22 696
per month.
5. On 9 October 2009 and following the meeting with
Zietsman, Pretorius sent Zietsman an email in which she wrote,
inter
alia
, the following
:
’
[I] had
decided to take retrenchment… I will be in the office on
Monday to complete my documents if it is possible if my
money can be
paid out on the same day as I would prefer to go home.’
Mr Coetzee (Coetzee) on behalf of the applicant
prepared a document styled ‘Notice of Termination of
Employment Following
Retrenchment Consultation Process’.
2
During the arbitration proceedings and in respect of
the meeting with Zietsman, Pretorius testified that Zietsman
informed her
that:
’
I have
one of two options. I can move over to Ambition 24 hours as the sales
manager, exactly the same position, obviously at a
lower salary. He
did not mention the salary amount. Or I can take retrenchment of
which I started to ask him about the Ambition
position.
MS PRETORIUS
because I thought that if there is a R3000 salary
gap, then obviously I can basically down size or cut something
somewhere to survive.
Then he said to me …’
3
Pretorius also testified that Zietsman had alleged poor
performance on her part and she disputed this.
Further, during her evidence at the arbitration
proceedings, Pretorius testified as follows:
’
MS
PRETORIUS:
and Penny said that basically I can go over to the Ambition at the
salary of R13 000 or take retrenchment. And he asked me, when
I would
be able to give him an answer. I said to him …
MR KOEN
: just stop there for a moment. So R13 000 at Ambition
or retrenchment?
MS PRETORIUS:
that’s it, either one of the two.
MR KOEN:
What was your state of mind at that stage how did you
react?
MS PRETORIUS
: I was totally emotional.
MS PRETORIUS:
Then he asked me when I would be able to give
him an answer.’
4
Ms Pretorius further testified that she then called a
meeting with her staff and informed them of the two options that had
been
put to her.
5
Ms Pretorius also testified that she informed her staff
that the applicant had decided what would happen and that she had
decided
to accept it.
6
Thereafter Ms Pretorius sent an electronic mail to
Zietsman referring to their meeting of earlier that day and informed
him that
she had decided to take the retrenchment option.
7
11 Ms Pretorius further testified that she did indeed
make the decision and that she did not take legal advice at the time
of making
the decision. Ms Pretorius further testified that a few
days after making the decision she telephoned a legal insurance
company
and sought advice.
12 Further, in her evidence and under cross-examination,
Ms Pretorius confirmed that the two options, a ‘drastic’
salary
cut or retrenchment were put to her in the meeting with
Zietsman. Ms Pretorius further confirmed that following the meeting
with
Zietsman she was asked to sign a letter headed ‘Notice of
Termination’ and that she did indeed sign the letter.
8
Further, and also under cross-examination Ms Pretorius
testified that the two options were put to her and she had taken one
of the
two ‘I had to sign the letter, stipulating that those
were the two options, that’s the one that I took.’
9
13 Ms Pretorius further confirmed that following her
signing of the letter she did indeed take steps, in accordance with
the terms
stipulated in the letter and requested payment of monies
due to her.
10
Under cross-examination Pretorius said that she felt
that she was ‘forced’.
14. On balance, it does appear that the termination of
Ms Pretorius’s employment with the applicant proceeded rather
hastily.
The applicant contends that it was terminated by agreement.
Ms Pretorius contends that she was unfairly dismissed. The
commissioner
found that Ms Pretorius was unfairly dismissed.
15. At paragraph 2 of the arbitration award, the
commissioner described the issue in dispute as follows:
’
2 The
issue to determine is whether Ms Pretorius had entered into a
voluntarily retrenchment agreement. If so there would be no
dismissal. If not, I would have to determine whether her dismissal
was fair.’
16. The CCMA’s records of the arbitration
proceedings include a handwritten document;
11
being the commissioner’s notes which refer to a
proposed pre-arbitration minute. A copy of the proposed draft
pre-arbitration
minute forms part of the bundle of documents that
served before the commissioner during the arbitration proceedings.
12
That document is unsigned. However, it is not in dispute
that at some point during the arbitration proceedings and in the
presence
of the commissioner, the parties held a pre-arbitration
meeting.
The commissioner’s handwritten
notes record those aspects dealt with in the proposed pre-arbitration
minute which the commissioner
understood to be agreed and disputed.
The commissioner’s understanding, as
confirmed by his handwritten note, of one of the outcomes of the
pre-arbitration meeting
includes the following:
10.1. Pretorius was employed by the applicant at its
Nelspruit office from 25
August 2008.
10.2. The applicant proposed that Pretorius should
relocate to the Cape Town office, with a promotion, which Pretorius
accepted.
10.3. Pretorius relocated to Cape Town and accepted the
position of sales manager at a salary of R23 000 per month plus
benefits
from 8 June 2009.
10.4. Pretorius was in charge of sales.
10.5. It is disputed that the applicant did not pay
Pretorius’s relocation costs.
10.6. It is disputed that on 9 October 2009 Pretorius
was called to a meeting with Zietsman and given an option to either
accept
a lower salary of R13 000 per month or accept retrenchment.
10.6. It is disputed that Pretorius accepted
retrenchment under duress.
10.7. It is agreed that the applicant terminated
Pretorius’s salary writing on 12 October 2009.
10.8. It is agreed that the applicant did not issue
Pretorius with a notice in terms of section 189 (3) of the LRA (with
reasons
by the applicant).
17. In relation to that clause in the pre-arbitration
minute that deals with termination of Pretorius’s ‘salary’,
Pretorius contends that the pre-arbitration minute was in the
applicant’s possession for at least four days prior to the
commencement of the arbitration proceedings and that the term
‘salary’ was an error, that it should have read
‘employment’
and that this meaning was in fact clear to
the applicant. On this basis Pretorius contended that the parties
had, at the pre-arbitration
meeting conducted in the presence of the
commission, agreed that her employment had been terminated in writing
on 12 October 2009.
18 The commissioner was clearly of the view that the
parties had agreed that Pretorius’ employment had been
terminated in
writing on 12 October 2009. However, the record of the
arbitration proceedings including that part of the proceedings
dealing with
the proposed pre-arbitration minute, does not support
out this view or understanding. In particular, the transcript of the
arbitration
proceedings does not record that Coetzee, on behalf of
the applicant, had agreed to this proposition.
13
In the circumstances, the commissioner had incorrectly
recorded the existence of an agreement in respect of one of the
material
issues in dispute. This no doubt influenced his assessment
of the matter and the rest of the proceedings.
19. An instructive assessment of what section 145 of the
LRA requires is to be found in the judgment of
Van
Niekerk J in Pam Golding Properties (Pty) Ltd v Erasmus and Others
.
14
In that matter, Van Niekerk J held that:
’8. In summary, section 145 requires that the outcome of CCMA
arbitration proceedings (as represented by the commissioner’s
decision) must fall within a band of reasonableness. The Court is
also empowered to scrutinise 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 including for example,
a material
mistake of law, 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 the
result is
nonetheless capable of justification.’
20 The commissioner understood that the parties had
agreed that the applicant terminated Pretorius’ ‘salary’
(employment)
on 12 October 2009. However, as noted above, this was
not in fact so. The commissioner misunderstood a material part of the
dispute
between the parties. On this ground alone the arbitration
award falls to be reviewed and set aside.
21. In light of the basis on which I have determined
that the award is reviewable, the commissioner’s assessment of
material
issues in dispute and material issues in respect of which
the parties have agreed, it is not appropriate that costs should
follow
the result.
22. Accordingly, I made the following order.
The arbitration award of the Second Respondent is
reviewed and set aside and the matter is remitted back to the First
Respondent
for arbitration before an arbitrator other than the
Second Respondent.
There is no order as to costs.
____________________
VAN VOORE AJ
APPEARANCES
APPLICANT: Adv A de Wet
THIRD RESPONDENT: Mr R Kuhn
1
arbitration
award paragraph 21.
2
record
of arbitration proceedings, page 68.
3
transcript
pages 61, line 25 and page 62 line 1 – 10.
4
transcript,
page 63 lines 14 – 23.
5
transcript,
page 65 lines 1 – 9.
6
transcript,
page 65 lines 13 – 17.
7
transcript,
page 67 line 1.
8
transcript,
pages 79, lines 12 – 25, page 80 lines 1 – 4; record of
arbitration proceedings, page 38.
9
transcript,
page 80 lines 1 & 2.
10
transcript,
page 83.
11
record
of the arbitration proceedings, pages 13 and 14.
12
record
of the arbitration proceedings, pages 101–106.
13
transcript,
pages 138 to 140
14
(2010)
31 ILJ 1460 (LC) at para 8.