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[2011] ZALCPE 18
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Department of Correctional Services v General Public Service Sectoral Bargaining Council and Others (P529/09) [2011] ZALCPE 18 (10 May 2011)
Page
19
of
24
Case
No: P529/09
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN PORT ELIZABETH)
Case No: P529/09
Reportable
and of interest to other Judges
In
the matter between
THE
DEPARTMENT OF CORRECTIONAL
SERVICES
..................................................................................................
APPLICANT
and
GENERAL
PUBLIC SERVICE SECTORIAL
BARGAINING
COUNCIL
............................................................
FIRST
RESPONDENT
JONATHAN
GRUSS
N.O
.......................................................
SECOND
RESPONDENT
WILLEN
ANDRIES VOSLOO
......................................................
THIRD
RESPONDENT
JUDGMENT
SHAI
AJ
INTRODUCTION
[1] This is an application in terms of
which the applicant seeks to review and set aside the arbitration
award issued by the Second
Respondent, (“the arbitrator”)
on the 24 August 2009 under case number PSGA 1269-07/08 under the
auspices of the First
Respondent. In this application the Applicant
seeks to have the finding of the arbitrator that the dismissal of the
Third Respondent
(“the employee”) was both procedurally
and substantively unfair, set aside and substituted with a finding
that the
dismissal was for a fair reason.
THE FACTS
[2] The employee commenced his
employment with the Applicant on 01 December 1989 as a correctional
officer.
[3] The Applicant contended that for a
considerable period, that is from 01 December 2006 until his
dismissal, the employee was
absent from work without permission or
without advising either his supervisors or his employer of his
whereabouts. Applicant contended
during such period the employee was
rendering services at Netcare 911 while he was still employed by the
applicant.
[4] On or about 31 August 2007, a
letter was sent to the employee advising him to report for duty on or
before 03 September 2007,
failing which he will be regarded as
absconded.
[5] On the said 03 September 2007, the
employee went to the office of the Applicant dressed in civilian
clothing. The Applicant
contended that the employee was advised that
in terms of the above letter he was required to report for duty
failing which he will
be regarded as having been absconded.
[6] The Applicant contends that the
employee ignored this and left the office. The Applicant contends
further that the only information
furnished by the employee was that
he had applied for temporary incapacity leave but was informed that
such application was not
received by the Applicant and that he should
furnish proof thereof.
[7] On 04 September 2007, the employee
was issued with the dismissal letter. The letter informed him that he
was absent from work
for a consecutive period of 30 days without
permission from his employer and was consequently dismissed in
accordance with clause
9.1 of Resolution No 1. of 2006. The relevant
provisions of the resolution are dealt with in paragraph 35 below.
[8] The employee lodged an appeal
against his dismissal and such an appeal was dismissed on 30 January
2008. Thereafter the employee
referred a dispute to the GPSSBC
challenging the fairness of his dismissal. The matter was scheduled
for arbitration and such arbitration
was presided over by the Second
Respondent and finalised on 05 August 2009, which award is the
subject of this review application.
[9] In this award the arbitrator found
that the employee was procedurally and substantively unfairly
dismissed and ordered reinstatement
of the employee. In addition the
arbitrator ordered back pay in the sum of R241 135.00 representing
the loss of income from the
date of dismissal to the date of the
award.
[10] The employee on the other hand
contended that he was absent from work due to ill health and has
submitted ill health application
forms which the Applicant did not
process.
[11] He further contended that at all
times the Applicant knew where he was, as officials came to his house
where discussions were
held with him and that also Mr Nweba came to
his house and thirdly, a letter was delivered to him at his house (on
31 August 2007).
[12] Further that he did not render
services to the Netcare from 01 December 2006 to 03 September 2007.
He however, admits that
he performed voluntary service for Netcare
911 from 2004 with the knowledge and approval of the Applicant and
supervisors. At no
stage was the issue of Netcare 911 raised with him
during such discussions – discussions centered on absence from
work and
ill health.
[13] On 03 September 2007 when he met
Mr Nweba he was in civilian clothing and this infuriated Mr Nweba.
The latter further refused
to accept his explanation that his house
burned down and that his uniform burned with it.
[14] The employee contends that on
that day Mr Nweba produced a blank leave form and required him to
sign it thereby construing
the absence from work as being leave
without pay, notwithstanding the fact that he told him he had
submitted sick certificates
and temporary ill health application
throughout.
[15] Mr Nweba asked him to produce
proof of submissions of the forms and he advised him he did not have
them with him, at that stage.
He was then handed a disciplinary
hearing notice which he refused to sign.
[16] He contends that the meeting with
Mr Nweba was confrontational and escalated further when he told him
that he had a doctor’s
appointment and need to attend to.
[17] He contends that the letter he
received did not inform him to resume duties but to report to discuss
the matter with him in
order to clarify and possibly resolve the
matter.
[18] The Applicant was dissatisfied
with the award of the commissioner and lodged the review application
on 29 October 2009 which
is three weeks late and seeks condonation
therefore.
CONDONATION APPLICATION
[19] The Applicant received the
arbitrator’s award on 28 August 2009. The Applicant filed his
review application on 29 October
2009 which makes the application
late by approximately three weeks.
[20] As the reason for the delay the
Applicant contends that the Applicant is a state organ and need to
follow certain internal
procedures before embarking on litigation. In
this instance the award was sent to Legal Service at Regional Office
in East London
and the said office had to prepare memorandum and
advice whether the award must be implemented or reviewed. The said
memorandum
was prepared on 01 September 2009.
[21] The said memorandum and the award
were sent to Regional Head: Corporate Services on 07 September 2009.
Thereafter the memorandum
and the award were sent to the Deputy
Regional Commissioner. After making comments the said documents were
sent to the Regional
Commissioner for her consideration and mandate,
which was done on the 10 September 2009. From there the State
Attorney had to be
engaged which was done on the 28 October 2009
hence the late filing of the application for review.
[22] The Applicant is of the view that
he has good prospects of success given the issues he raised against
the award. The Applicant
is also of the view that justice will be
better served if condonation is granted as the Respondent will suffer
no prejudice.
[23] The factors that need to be taken
into account in determining whether a good cause has been shown for
condonation of late filing
of the review were stated in the case of
Melane v Santam Insurance Co Ltd 1962(4) SA 531 (A) at 532
and
it involves weighing together the following factors; which are
interrelated: degree of lateness, explanation thereof, the prospects
of success and the importance of the case. The court went on and said
that although these factors are interrelated and are not
individually
decisive if there are no prospects of success there would be no point
in granting condonation.
[24] In the case of
Kritzinger v
CCMA & Others (J2254/05)
[2007] ZALC 85
(9 November 2007),
published also at
[2008] Jol 21093
(LC)
Molahlehi J said
the following in relation to the test as enunciated in
Melane v
Santam Insurance Co LTD 1962(4) SA (A) at 532
:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance,
a good explanation for the lateness may assist the applicant in
compensating for weak prospects of success. Similarly,
strong
prospects of success may compensate for inadequate explanation and
the long delays.”
[25] In the present set of facts the
delay is approximately three weeks which I regard as not excessive.
This in conjunction with
explanation of the delay and prospects of
success sufficiently and satisfactorily explained in the review
application leads me
to the conclusion that a good cause for
condonation has been shown and accordingly condonation for late
filing of the application
of review is granted.
GROUNDS OF REVIEW
[26] The Applicant attacks the award
of the arbitrator as follows:
[26.1] The evidence before the
arbitrator proved that the employee absented himself for a period in
excess 30 days without permission
or leave from his employer. His
dismissal was in accordance with clause 9.1 of the Resolution 1 of
2006 and therefore not in terms
of the Labour Relations Act.
[26.2] During the cause of the
arbitration hearing, the employee admitted working for Netcare 911.
However, the arbitrator made
a finding that there was inconclusive
evidence in this regard. It is applicant’s submission that this
finding is not supported
by evidence properly placed before him and
is unreasonable.
[26.3] The arbitrator made a finding
that the employee refused to sign a blank leave form authorizing the
Applicant to deduct unpaid
leave which applicant had led neither such
evidence nor its witnesses cross examined on it.
[26.4] The arbitrator failed to apply
his mind to the fact that the evidence proved that the employee did
not render any service
to the applicant for the duration of his
absence from work but nevertheless, he (“the arbitrator”)
awarded the employee
an amount of R 241 135.00 as back pay.
THE LEGAL POSITION
[27] The law is now settled with
regards to the test for review as enunciated in the well known case
of
Sidumo & Another v Rustenburg Platinum Mines LTD &
Others 2008(2) SA CC
being: “is the decision reached by the
commissioner one that a reasonable decision maker could not reach?”
[28] In
Sidumo,
Ncgobo J, as he
then was, was of the view that although the provisions of Section 145
of the LRA have been suffused by the Constitutional
standard of a
reasonable decision maker, a litigant who whishes to challenge the
arbitration award under Section 145(2) must found
his or her cause of
action on one or more of these grounds of review, and at paragraph
186 he said the following:
“
The
general powers of review of the Labour Court under Section 158(1)(g)
are therefore subject to the provisions of Section 145(2)
which
prescribe grounds upon which arbitral awards of CCMA Commissioners
may be reviewed. These grounds are misconduct by the Commissioner
in
relation to his or her duties; gross irregularity in the conduct of
the proceedings; where Commissioner exceeds his or her powers;
or
where the award was improperly obtained. These are the only grounds
upon which arbitral awards of CCMA Commissioner’s
may be
reviewed by the Labour Court under Section 145(2) of the LRA. It
follows therefore that a litigant who wishes to challenge
an arbitral
award under Section 145(2) must found his or her cause of action on
one or more of these grounds of review”
[29] Regarding gross irregularity as a
ground of review Ncgobo J said the following:
“
[263]
The
basic principle was laid down in the often- quoted passage from
Ellis
v Morgan [Ellis v Morgan, Ellis v Dessan
1909 TS 576]
where
the court said
:
“
But an
irregularity in proceedings does not mean an incorrect judgment; it
refers not to the result, but to the methods of a trial,
such as for
example, some highhanded or mistaken action which has prevented the
aggrieved party
from
having his case fully and fairly determined”
[30] The Court went further to say
that:
“
In
Goldfields [Goldfield investments LTD and Another v City Council of
Johannesburg and Another
1938 TPD 551]
, Schreinder J distinguished
between patent irregularity that is, those irregularities that take
place openly as part of the conduct
of the proceedings, on the one
hand, and ‘latent irregularities’’, that is,
irregularities that take place inside
the mind of the judicial
officer, which are only ascertainable from the reasons given on the
decision maker. In the case of latent
irregularities one looks at the
reasons not to determine whether the results is correct but to
determine whether a gross irregularity
occurred during the
proceedings. In both cases, it is not necessary to show intentional
arbitrariness of conduct or any conscious
denial of justice……”
[31] The Court went further to
indicate that in both
Ellis and Goldfields
cases it is clear
that the crucial enquiry is whether the conduct of the decision maker
complained of prevented a fair trial of
issues.
[32] In
Southern Sun Hotel
Internationals (PTY) LTD v Commission for Conciliation, Mediation and
Arbitration & Others [2010] 31 ILJ
452(LC),
the Court
acknowledged the test for review of Commissioner’s award as
enunciated in the Sidumo decision (reasonable decision
maker test)
but said:
“
Section
145 of the Act clearly invites a scrutiny of the process by which the
result of an arbitration proceedings was achieved,
and a right to
intervene if the Commissioner’s process related to conduct is
found wanting. Of course, reasonableness is
not irrelevant to this
inquiry – the reasonableness requirement is relevant to both
process and outcome”
[33] My understanding is therefore
that if the Commissioner commits acts as stipulated in Section 145(2)
of the Act the decision
arising from proceedings so conducted would
not be reasonable, thus would not pass the constitutional standard of
the reasonable
decision maker.
[34] The first attack on the
arbitrator’s award is that the employee was not dismissed but
terminated
ex lege
in terms of the Resolution 1 of 2006
nevertheless the commissioner found that the employee was unfairly
dismissed as per
Labour Relations Act 66 of 1995
.
[35] The clause 9.1 of Resolution 1 of
2006 provides as follows:
“
9.1
An employee who absents him/herself for thirty consecutive (calendar)
days without permission or without notifying the employer
shall be
summarily dismissed. However, before dismissing the employee the
employer must endeavor to establish the whereabouts of
the employee.
Upon the employee’s reappearance after desertion, he/she may
not be reinstated. The employee must make written
representations to
the delegated authority within five (5) days from his/her
reappearance, should he/she wish reinstatement/re-employment.”
[36] It is common cause between
parties that the above Resolution governs the employer-employee
relationship between the Applicant
and the Third Respondent. What the
parties do not agree on is whether the said resolution creates
termination of employment
ex lege
or not and whether the
circumstances of the Third Respondent triggered the operation of
termination
ex lege
.
[37] The applicant in its submission
relies on the case of
Phenithi v Minister of Education and Others
(2006) 27 ILJ 477 SCA
wherein the court dealt with a discharge
from service in terms of
Section 14(1)
(a) of the
Employment of
Educators Act 76 of 1998
. The said section provides as follows:
“
14
Certain educators deemed to be discharged:
An
educator appointed in a permanent capacity who-
is
absent from work for a period exceeding fourteen consecutive days
without permission of the employer ….. shall, unless
the
employer directs otherwise, be deemed to have been discharged from
the service on account of misconduct ……with
effect
from the day following immediately after the last day on which the
educator was present at work.”
[38]
Section 14(2)
of the same Act
provides further that if such educator at any time, reports for duty,
the employer, may, on good cause shown and
notwithstanding anything
to the contrary contained in that Act, approve the re-instatement of
the educator in the educator’s
former post or any other post on
such conditions relating to the period of the educator’s
absence from duty or otherwise
as the employer may determine.
[39] The court cited the case of
Minister van Oderwys en Kultuur v Louw 1995(4) 383 (A)
with
approval and said the following:
“
In
this court Van Heerden JA, reversing the decision of the Northern
Cape Division, said (at 388 G-H):
“
The deeming
priovision [at 72(1)] comes into operation if a person in the
position of the respondent
without the consent
of the “Head of Education”
is absent from his
service for more than 30 consecutive days. Whether these
requirements have been satisfied is objectively determinable.
Should
a person allege, for example, that he had the necessary consent and
that allegation is disputed, the factual dispute is
justifiable by a
court of law? There is then no question of a review of
administrative decision. Indeed, the coming into operation
of the
deeming provision is not dependent upon a decision. There is thus no
room for reliance on the audit rule, which, in this
classic
formulation, is applicable when an administrative – and
discretionary – decision may determinately affect
the rights,
privileges or liberty of a person.’
(My
translation)
”
[40] The court went further to say
that there being no decision or administrative act capable of review
and setting aside, the prayer
that the ‘decision – be
declared an unfair labour practice’ falls away.
[41] See in this regard previous and
subsequent cases -
Mabika and Others (D547/2003)
[2005] ZALC 89
(28 September 2005), Free State Provincial Government (Dept of
Argriculture) v Makae (in his capacity as commissioner of the CCMA
Free State Province & Presiding Others
2006 15 LC 1.11.9
reported
also at
[2006] 7 BLLR 659
LC; JOL 17505(LC), PSA obo Van der Walt v
Minister of Public Enterprise and Another
(2009) 18 LC 6.6.1
,
reported in
[2005] 2 BLLR 172
(LC), Maidi v MEC for Department of
Education
(2003) 12 LC 7.1.14
etc.
[42] Such is the effect of the deeming
provisions. Now I must determine if the Resolution 1 of 2006 has the
same effect or not.
A proper examination of the resolution leads one
to conclude that the intention was to create a termination
ex lege
despite the use of the words summary dismissal. It must also be
remembered that
section 14
of the Educator’s Act also use the
words ‘deemed dismissed’ and despite this it is trite
that there is no dismissal
within the meaning of the Labour Relation
Act 66 of 1995 but termination following the operation of the law. I
can read no other
meaning into it other than that it is intended to
create an
ex lege
termination. According to
Phenithi
,
once the stipulated period lapses, desertion is inferred. However,
the measure should not lightly be resorted to, it is an extraordinary
measure reserved for extraordinary and clearest cases.
[43] In this regard Steenkamp J in the
case of Director General:
Office of the Premier of the Western
Cape & Others v South African Medical Association & Others,
Case No C420/2007
, said the following”
“
[22]
In Phenithi v Minister of Education & others
1
the
Supreme Court of Appeal explained the purpose of a deeming provision
in the Employment of Educators Act
2
similar
to that in s 17(5)(a) of the Public Service Act as follows:
"In my view, the
provision creates an essential and reasonable mechanism for the
employer to infer 'desertion' when the statutory
prerequisites are
fulfilled. In such a case, there can be no unfairness, for the
educator’s absence is taken by the statute
to amount to a
'desertion'. Only the very clearest cases are covered. Where this is
in fact not the case, the
Act provides ample means to rectify or
reverse the outcome."
[23]
The case before me is not one of those "clearest cases". It
is by no means clear that the employee had deserted.
Even if the
deeming provision in s 17(5) of the Public Service Act had been
applicable, it would not have applied to the facts
of this case.
[24]
As Pillay J noted in HOSPERSA & another v MEC for Health
3
:
"All in all,
section 17 (5) is a Draconian procedure. It must be used sparingly
and only when the code cannot be invoked when
the employer has no
other alternative. That would be so, for example, when the respondent
is unaware of the whereabouts of employees
and cannot contact them.
Or, if the employees make it quite clear that they have no intention
of returning to work. The code is
a less restrictive means of
achieving the same objective of enquiring into and remedying an
employee’s absence from work.
It enables employees to invoke
the rights to fair labour practice and administrative justice. All
the jurisdictional prerequisites
for proceeding in terms
of section 17(5)(a)(i)
must be present before it is invoked
.
"
[44] However, I must indicate that the
factors that trigger the
ex lege
termination are slightly
different to those we find in section 14 of Employment of Educator’s
Act. In the case of section
14 of
Employment of Educators Act the
factors that trigger termination
ex lege
are absence from work
for a period exceeding fourteen consecutive days and without
permission of the employer. In the case of Resolution
1 of 2006 the
factors that trigger termination ex
lege
are absence from work
for 30 consecutive days without permission or
without notifying
the employer
.
[45] The third respondent contends
that he served the applicant with his medical certificates and
ill-health application form (for
temporary incapacity) and has shown
proof of service thereof, although the Applicant contends that he did
not receive them. The
question that must be answered is whether same
constitutes permission within the context of Resolution 1 of 2006. I
do not think
so. See in this regard
Free State Province &
Presiding Officer) & Others
(2006) 15 LC 1.11.9
, JOL 17505 (LC)
,
where it was held that mere notification of the employer of medical
condition did not amount to being granted permission to be
absent.
[46] Was the Applicant notified of the
absence? It was indicated in the above paragraph that the Third
Respondent contended that
he notified the applicant of ill health by
faxing the medical certificates and application for temporary
incapacity forms. This
he faxed to the Head Office of the Applicant.
However, he further contended that he initially handed them to his
local work station
but when he was informed that they did not receive
them he then faxed to Head Office hence forth.
[47] Further that it appears that the
Applicant through its employees, Muller, Wood and Skade made numerous
visits to the Third
Respondent’s house e.g 10 May 2007, 30 July
2007 and 31 August 2007. During these visits the Third Respondent
told them that
such forms have been faxed to St Albans at Fax No
(041)775 1171. Mr Nweba also in his testimony confirms that during
such visits
the employee’s absence and ill health should have
been discussed. Further that, Mr Nweba in his testimony indicated
that
in their system the employee was recorded as on temporary
incapacity leave although he tried to explain how it could have
happened.
This is the fact that alerted him to check for the said
forms. It is however, clear that someone in the employ of the
applicant
who is privy to the facts recorded it as such. If not
notified why would there be such a record.
It is strange that whereas Mr Nweba in
his testimony doubted the authenticity of the proof of service
submitted by the employee,
and whereas he undertook to deliver the
register in which the receipts of faxed are recorded, when he was
required to submit the
register he reported that the register is
nowhere to be found. One would have expected that once the employee
alleges that he has
faxed such documents he will inspect such
register and save guard it to disprove the allegation. He did not do
so.
[48] Does the above constitute notice
in the context of resolution 1 of 2006? I think so. The fact that the
Third Respondent has
had discussion with Applicant through its
officers and the faxed documents to the Applicant points to a proper
notice. In the circumstance
the necessary requirement of “without
notifying the employer” is absent and hence Resolution 1 of
2006 did not apply
to the circumstances of the employee. The
arbitrator therefore had the jurisdiction to determine the matter.
IS THE AWARD NEVERTHELESS
IMPEACHABLE?
[49] The second attack against the
award of the commissioner is that the employee during the arbitration
admitted working for Netcare
911 nevertheless, the arbitrator found
that there is inconclusive evidence in relation thereto and that such
finding is not supported
by evidence. There is no merit in this
attack. The employee admitted that after his dismissal he became
employed by Netcare 911.
Surely after the dismissal the employee was
entitled to seek work anywhere else. Further that the employee
admitted that he did
voluntary work with Netcare 911 with the
permission of the Applicant and his supervisor. The purpose was for
him to accumulate
hours of his AA qualification (Paramedic
qualification). Initially his local office refused him permission but
Provincial Authorities
intervened and he was permitted. According to
his evidence he did not do any further hours during the period of his
absence as
there was no need as he had collected the necessary hours.
This evidence was not contradicted in any way. Applicant led only
evidence
to the effect that an investigation was done and it was
found that the employee had worked for Netecare 911. Such report was
not
presented as evidence nor did the person who conducted the
investigation give evidence. What the Applicant did was to give
uncorroborated
hearsay evidence.
[50] The arbitrator was within his
rights to come to the conclusion that such evidence is inconclusive
and hence no irregularity
occurred that need interference by this
court.
[51] The third attack on the
commissioner’s award is that the compensation the arbitrator
awarded is not just and equitable
in that the arbitrator did not take
into account that the employee received salary during his absence and
that he alternatively
exceeded his powers in that
section 194(1)
of
the
Labour Relations Act 66 of 1995
limits compensation to no more
than 12 months’ remuneration.
[52] The arbitrator after finding that
the dismissal of the employee was procedurally and substantively
unfair ordered his reinstatement
from 3 September 2007 with immediate
effect on the terms and conditions, not less favorable than those
which governed his employment
immediately prior to the dismissal…….
[53] Further that, the arbitrator
ordered that the Respondent pay to the employee back pay in the
amount of R214 135.00(10 706.75
× 20 months) as loss of
income(remuneration) for the period 03 September 2007 to the date of
the award. The date of the award
is 24 August 2009. By this time the
employee was out of work for 24 (twenty four) moths.
[54]
Section 193
of the
Labour
Relations Act 66 of 1995
provides as follows:
“
(1)
If the Labour court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the court or the arbitrator
may –
(a)
Order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee either in the work in
which the employee was employed before the dismissal or other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c)
order the employer to pay compensation to the employee.”
[55]
Section 194
of the
Labour
Relations Act 66 of 1995
provides as follows:
“
(1)
The compensation awarded to an employee whose dismissal is found to
be unfair either because the employer did not prove that
the reason
for dismissal was a fair reason relating to the employee’s
conduct or capacity or the employer’s operational
requirements
or the employer did not follow a fair procedure, or both, must be
just an equitable in all circumstances, but may
not be more than the
equivalent of 12 months’ remuneration.”
[56] In our given case the arbitrator
ordered reinstatement of the employee. The purpose of the
reinstatement is to place the employee
in the position he would have
been had the dismissal not occurred. The arbitrator further ordered
back pay in favour of the employee,
which is consistent with placing
the employee in the position he would have been had the dismissal not
occurred. The ‘back
pay’ is not compensation within the
meaning of
Section 193(1)(c)
or
194
(1) hence is not confined to 12
(twelve) months – See in this regard –
Republican
Press Pty Ltd v CEPPWAWU and Others (218/06)
[2007] ZASCA 121
.,
where the court said the following at para 19:
“
I
do not think that the back pay to which an employee ordinarily
becomes entitled when an order of reinstatement is made is to be
equated with compensation (thus allowing for limitation contained in
S 194
to be applied in relation to back pay). As pointed out by Davis
AJA in Kroukam, (and I respectfully agree) an order of reinstatement
restores the former contract and any amount that was payable to the
worker under the contract necessarily becomes due to the worker
on
that ground alone. Perhaps a court (or arbitrator) that make such an
order may also order that part of the remuneration shall
not be
recoverable (I make no finding on the point) but I agree with Davis
AJA that the remuneration becomes due under the terms
of the contract
itself and does not constitute compensation as envisaged by
S 194
”
[57] The arbitrator therefore has not
committed any irregularity in this regard.
[58] The fourth attack on the award is
that the arbitrator made the finding that the employee refused to
sign a blank leave form
authorising the Applicant to deduct unpaid
leave while Applicant had led no such evidence nor its witness
cross-examined on it.
There is no merit on this attack.
[59] During the arbitration hearing
the employee testified as follows at page 140, para 10 of the
records:
“…
.He
told Mr Viviers to go and fetch a leave form that I just have to
sign, so I told him it is a blank form, I cannot just sign
a blank
form, what they going to put there? So he told me it was for my
absence. So I did not want to sign, so he said well they
will sign on
behalf of me, I cannot remember what he said…..”
[60] Cross examination proceeded as
follows:
“
MR
VOSLOO
:
According to me I was on sick leave. According to Mr Nweba at that
time I was absent, he referred to it as (indistinct)
COMMISSIONER
:
Desertion/Abscornment
MR
VOSLOO
: I can
absconding
COMMISSIONER
:
And what did he want you to sign?
MR
VOSLOO
: The
blank leave forms.
COMMISSIONER
:
For what purpose
MR
VOSLOO
:
Absenteeism that I was absconding
COMMISSIONER
:
And what would be the implication thereof?
MR
VOSLOO
: Leave
without pay”
[61] Applicant cross examined the
employee on the issue. If the Applicant was worried about this
evidence he should have objected
or applied for re-calling of its
witness to deal with it. Applicant cannot fault the arbitrator for
accepting evidence of the employee
in that respect. Besides that this
evidence does not sit at the centre of the conclusion of the
commissioner. It is therefore my
conclusion that no irregularity
occurred in this regard that requires this Court to intervene.
[62] In the end the question that I
must answer is whether the arbitrator reached a conclusion that a
reasonable decision maker
could not reach? I do not think so. In the
circumstances the order is as follows:
1. The application for review and
setting aside of the award issued under case No PSGA 1269-07/08 is
dismissed with costs.
SHAI AJ
__________________
DATE OF HEARING
:
09-02-2011
DATE OF JUDGMENT
:
10-05-2011
FOR THE APPLICANT: Advocate Gqamana
INSTRUCTED BY:
State
Attorney
FOR THE RESPONDENT:
Advocate
NCF Schultz
INSTRUCTED BY:
Brown
Braude & Vlok Inc
1
2008
(1) SA 420
(SCA) para [19]
2
Act
76 of 1998
3
(2003)
24
ILJ
2320 (LC) para [37]