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[2012] ZALCJHB 84
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Motor Industry Staff Association and Another v Stanmar Motors (Pty) Ltd and Others (JR 1326/2011) [2012] ZALCJHB 84 (22 August 2012)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1326/2011
In
the matter between
MOTOR
INDUSTRY STAFF ASSOCIATION
...................................................
First
Applicant
ALLAN
DESMOND BEZUIDENHOUT
........................................................
Second
Applicant
and
STANMAR
MOTORS (PTY) LTD
.................................................................
First
Respondent
Motor
Industry Bargaining Council
......................................................
Second
Respondent
BOTHA
DU PLESSIS N.O
.
.........................................................................
Third
Respondent
Heard:
28 June 2012
Delivered:
22 August 2012
Summary:
The arbitrator’s award is reviewed and set aside as it is
unreasonable. The employer’s failure to comply with
a written
collective retrenchment agreement and failure to re-employ the
employee amounts to an unfair labour practice in terms
of section 186
(2) (c ) of the LRA. The employer ordered to re-employ the employee.
JUDGMENT
DOSIO
AJ
Introduction
[1] This is an
application to review the award of the third respondent (the
“arbitrator”) dated 7 May 2011, issued under
the auspices
of the second respondent (“ MIBCO”) under case number
MICT 9639, where the arbitrator found that the first
respondent (the
“employer”) did not commit an unfair labour practice in
terms of section 186 (2) (C) of the Labour
Relations Act (The
“LRA”).
1
[2] The applicants
request this Court to find that the employer breached the terms of a
written collective retrenchment agreement
(the “written
agreement”), concluded between the second applicant (“Mr
Bezuidenhout”) and the employer
on 15 January 2010, by failing
to offer and re-employ Mr Bezuidenhout one of the three sales manager
positions that became available
during the 12 month period, thereby
resulting in an unfair labour practice as contemplated in section 186
(2) (c ) of the LRA.
[3] The applicants
request the re-employment of Mr Bezuidenhout, in any of the three
sales manager positions that became available,
alternatively, that 12
months compensation, be paid to Mr Bezuidenhout by the employer for
committing the said unfair labour practice.
[4] I am satisfied that
the applicants have given an adequate explanation for not complying
timeously with rule 7A(6) and 7A (8)
and for the late filing of the
review application.
[5] The Court finds that
the delay is not excessive bearing in mind that the transcript was
incomplete and that there were delays
in obtaining the completed
record.
[6] Since there are
excellent prospects of success, condonation is granted.
Background facts
[7] The employer is a
national dealer in Mercedes Benz vehicles. Mr Bezuidenhout started
working for the employer in 1997. On 1
April 2008, Mr Bezuidenhout
was appointed by the employer as the branch manager/pre-owned sales
manager of its Knysna branch.
[8] The branch in Knysna
closed at the end of January 2010 due to economic reasons, and the
employer commenced with retrenchment
consultations in respect of all
the employees employed there. The employer had another branch in
George.
[9] On 15 January 2010,
the first applicant, the Motor Industry Staff Association (“MISA”),
a registered trade union,
of which Mr Bezuidenhout is a member,
concluded a written agreement with the employer. Clause 9 stated that
‘The Company
shall guarantee re-employment for a period of 12
(twelve) months should a position become available and should the
affected member
qualify for such position’.
[10] Mr Bezuidenhout
informed the employer on 15 January 2010 that he accepted the said
severance package and notice pay.
[11] On 19 January 2010,
the employer furnished Mr Bezuidenhout with a retrenchment notice
which confirmed Mr Bezuidenhout’s
decision to accept the
retrenchment package, and confirming that his name would remain on a
priority list for the next 12 months
should a suitable position
become available.
[12] During the
arbitration hearing, it was confirmed by Mr Orson Samuel (“Mr
Samuel”), that there was no position available
for Mr
Bezuidenhout at the George branch at the time of his retrenchment.
[13] Mr Bezuidenhout’s
last working day was 31 January 2010. He was 50 years old and his
cost to company was R32151-00
per
month.
[14] It is common cause
that at least four positions at the George branch became available
after Mr Bezuidenhout’s retrenchment
during the 12 month
period. The four positions were: Dealer principal, sales manager-
Mercedes, pre-owned sales Manager, and general
sales manager.
[15] It is common cause
during the arbitration hearing that none of the four positions were
advertised by the employer.
[16] During the hearing,
the employer disputed that Mr Bezuidenhout was qualified for the
position of dealer principal, but did
not dispute Mr Bezuidenhout’s
eligibility for being considered for the other three sales manager
positions.
[17] The employer’s
excuse or defence for not offering any of the said sales manager
positions to Mr Bezuidenhout was that
its CEO, Mr Owen Smith (“
Mr Smith” ), had twice verbally offered two positions to Mr
Bezuidenhout, and on both occasions,
Mr Bezuidenhout showed no
interest in the said positions offered to him.
[18] Mr Bezuidenhout
testified that, on 22 January 2010, Mr Smith informed him that he
wanted to keep him at Stanmar Motors. In
February 2010, Mr Smith
again told him he wanted him back. However, Mr Smith did not get back
to him on either of the two occasions.
Mr Bezuidenhout was aware
there were no managerial positions available at the time of these two
conversations with Mr Smith. Due
to there being a written agreement
guaranteeing re-employment within the 12 month period and due to the
fact that Mr Smith had
said he would get back to him, Mr Bezuidenhout
did not approach Mr Smith.
[19] Mr Smith testified
that he would have liked Mr Bezuidenhout to run the Mitsubishi
department or the Chrysler department as
sales manager. Mr
Bezuidenhout did not respond on 22 January 2010 and showed no
interest when he offered the same positions to
him in February 2010.
The dealer principal of George, Mr Bles de Wet resigned on 25
February 2010, but no further offers were made
to Mr Bezuidenhout. Mr
Smith disagreed that he had stated he would get back to Mr
Bezuidenhout on any of the aforesaid “offers”.
[20] It is common cause
that at the time of the said two discussions between Mr Smith and Mr
Bezuidenhout, Mr Daan Du Toit was still
employed as the sales manager
of the Mitsubishi department and Mr Malan Gericke was still employed
as the sales manager of the
Chrysler Department. When Mr Bles de Wet
resigned, which was still in the twelve month period, a new dealer
principal was appointed.
The arbitrator’s
award
[21] Against this
background, the arbitrator came to the conclusion that the employer
understood Mr Bezuidenhout not to be interested
in the positions
offered to him and that Mr Bezuidenhout had made no effort to contact
the employer confirming his interest in
the said offers. Accordingly,
the employer was justified not to offer any further positions which
became available. Had Mr Bezuidenhout
been keen to remain with the
employer, the arbitrator found, he would not have accepted the
severance package and would have considered
the job offers. Although
there were no details of the job offer, the employee should have
enquired about the specifics. The employer
only had to notify the
employee when suitable vacancies became available. If the CEO had
‘promised’ him a position
it could be regarded as a job
offer, even with little details. The arbitrator found that Mr
Bezuidenhout was not interested in
any position bar the dealer
principal position. The arbitrator disagreed with Mr Bezuidenhout
that he was indeed qualified to occupy
the position of dealer
principal.
The grounds of review
[22] The applicants state
the arbitrator committed a misconduct or alternatively an
irregularity by finding there was no duty on
the employer to offer
positions to Mr Bezuidenhout every time such a suitable position
became available. The arbitrator issued
an unreasonable award, as he
did not resolve the factual dispute which arose between the
conflicting versions of Mr Bezuidenhout
and Mr Smith as to what was
said during the meetings held on 22 January 2010 and during February
2010. The arbitrator’s finding
that Mr Bezuidenhout was not
interested in any other position than the dealer principal position,
rendered the award reviewable.
The arbitrator erred in his reasons as
to why Mr Bezuidenhout accepted the retrenchment package and
misunderstood the applicant’s
case. The arbitrator failed to
apply the correct principles of law.
Evaluation
[23]
The
court finds that the arbitrator failed to apply his mind and
committed an irregularity by finding that the employer had no duty
to
offer positions to Mr Bezuidenhout.
The
written agreement clearly placed an
onus
and duty on the employer,
in clear and unambiguous terms, to offer Mr Bezuidenhout,
any and every suitable
position for which he was qualified, during the 12 month period.
According to the written agreement there
was no obligation on Mr
Bezuidenhout to contact the employer advising him of his interest
should any suitable vacancy become available
for which he was suited.
The arbitrator asked the wrong questions by asking Mr Bezuidenhout if
he had applied for any of the sales
manager positions, or whether Mr
Bezuidenhout had reminded the employer that he was still interested.
In the case of
Stocks
Civil Engineering (Pty) Ltd v RIP NO and Another,
2
Van Dijkhorst AJA in the
minority judgment,
stated
that if ‘the tribunal “asked itself the wrong question”
or “applied the wrong test” or “based
its decision
on some matter not prescribed for its decision” or “failed
to apply its mind to the relevant issues in
accordance with the
behests of the statute”. Such decision is reviewable’.
[24] The arbitrator
committed a misconduct and irregularity by failing to resolve the
factual dispute arising from the conflicting
versions given by Mr
Bezuidenhout and Mr Smith in respect to what was said during the
meetings held on 22 January and during February
2010. The arbitrator
merely found that the employer had offered Mr Bezuidenhout a position
and Mr Bezuidenhout had shown no interest,
which led the employer to
believe Mr Bezuidenhout was not interested. There is no explanation
by the arbitrator how he reached
this conclusion. The arbitrator
should have rejected the version of Mr Smith for the following
reasons;
The employer’s
letter dated 19 January 2010 clearly confirmed to Mr Bezuidenhout
that there was no alternative position
available to save his
retrenchment.
There was no position on
22 January 2010 or during February 2010 which Mr Smith could have
offered Mr Bezuidenhout. This was confirmed
by Mr Samuel.
The arbitrator stated
that there were no specific details of the job offers, but that Mr
Smith could create positions. If Mr Smith
was going to create another
position for Mr Bezuidenhout, it would not have been sales manager of
Mitsubishi or Chrysler but something
else. This suggests the
arbitrator made a mistake in coming to the conclusion that Mr
Bezuidenhout did not want to return at that
stage, or was not keen to
take any job offer. Mr Bezuidenhout could not accept an offer which
was not specific and reduced down
to writing. Neither could he return
to something which was not available. Mr Smith confirmed during the
hearing that the meeting
in February 2010 was not for a job offer or
an interview. On this evidence alone, the arbitrator should have
rejected the evidence
of Mr Smith that two job offers had been made.
Even if the arbitrator believed that a position was offered to Mr
Bezuidenhout for
acceptance, and Mr Bezuidenhout showed no interest,
it did not absolve the employer from its contractual obligation to
offer any
further suitable position which became available. The
arbitrator failed to make a finding whose version was correct. As
per
the transcript of the arbitration hearing, it is common cause Mr
Bezuidenhout had indicated to Mr Samuel that if a position became
available at Stanmar Motors, he would have been interested. The
arbitrator should have accepted the version of Mr Bezuidenhout
and
rejected the version of Mr Smith.
There were conflicting
versions between Mr Samuels and Mr Smith, in that Mr Samuel
testified he was not aware of the two job offers
being offered to Mr
Bezuidenhout, whereas Mr Smith’s evidence was that two job
offers had been made. On a preponderance
of probabilities, the
arbitrator should have rejected Mr Smith’s version and found
in favour of Mr Bezuidenhout that no
specific job offer had been
made.
[25]
It
is accepted that an arbitrator’s prime function should be to
ascertain the truth as to conflicting versions placed before
him or
her. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
3
,
Ngcobo J stated at 268:
‘
Where a commissioner fails to
have regard to the material facts, the arbitration proceedings
cannot, in principle, be said to be
fair because the commissioner
fails to perform his or her mandate. In so doing, in the words of
Ellis the commissioner’s
action prevents the aggrieved party
from having its case fully and fairly determined. This constitutes a
gross irregularity in
the conduct of the arbitration proceedings, as
contemplated by s 145 (2) (a) (ii) of the LRA. And the ensuing award
falls to be
set aside not because the result is wrong but because the
commissioner has committed a gross irregularity in the conduct of the
arbitration proceedings’
‘
The same considerations apply
to a commissioner who fails properly to resolve an irreconcilable
dispute of fact. For these reasons,
the commissioner’s award
falls to be reviewed and set aside.’
[26] In addition, an
arbitrator should assess the credibility of the witnesses called, and
consider the inherent probabilities or
improbabilities of the
versions proffered by the witnesses. (See
Sasol Mining (Pty) Ltd v
Ngqeleni NO and Others
2011ILJ 723 (LC) at 727). It is clear the
arbitrator did not do this.
[27] The
arbitrator applied the incorrect principles of law by finding that
even if no details of the position “offered”
had been
given to Mr Bezuidenhout during the two meetings held in January and
February 2010,
it
still amounted to a job offer. For an offer to constitute a valid
“offer”, the offer must be precise and contain
sufficient
detail, failing which it is void for vagueness. A valid offer needs
to be
animo
contrahendi
and
it must be unequivocal. (See
Bourbon-Leftley
en Andere v WPK (Landbou) Bpk
1999
(1) SA 902
(C) at 916 G-H.). It is usual that there must be consensus
between the parties and this is usually determined by the existence
of an expressed offer and acceptance. It is not sufficient that the
offer was a mere proposal made while the parties were feeling
their
way towards a more precise and comprehensive agreement. (See
Pitout
v North Cape Lifestock Co-Op Ltd
1977
(4) SA 842
(A) at 860B.).
The
Court finds that Mr Smith did not make a clear offer, as there were
no details or terms as to the offer or acceptance of the
positions at
Chrysler or Mitsubishi. Accordingly,
there
was not a meeting of minds between Mr Smith and Mr Bezuidenhout (See
Schoeman
v IT Management Advisory Services (Pty) Ltd(
2002)
ILJ 1074 (LC) at para 15). As stated by Grogan, ‘True agreement
also presupposes that at the time of contracting,
the
parties are fully aware of the nature of the duties to which they
have agreed, and of the obligations that they have assumed’.
4
If an arbitrator commits
a material error of law, the arbitration hearing may be reviewed.
(See
Maneche
and Others v Commission For Conciliation, Mediation & Arbitration
and Others
.(2007)
28 ILJ 2594 (LC) at para 13)
[28] The arbitrator’s
finding that Mr Bezuidenhout was not interested in the positions
offered to him is unreasonable. Mr
Bezuidenhout cannot be faulted for
not accepting a transfer to a position which was already filled. Mr
Smith should have given
him an offer in writing, giving him details
of what he would be doing, what his position would be, his salary,
and the conditions
of his employment. (See
Nathan v The
Reclamation Group (Pty) Ltd
(2002) ILJ 588 (CCMA) at 601 C-D).
[29] There is no evidence
upon which the arbitrator could have come to the conclusion that the
employee was not interested in any
other position than the dealer
principal position. The transcript depicts that Mr Bezuidenhout would
have considered any of the
other three positions as he was suitably
qualified. This was never disputed during the cross-examination of Mr
Bezuidenhout. During
the hearing, the arbitrator asked the
applicant’s representative whether the applicant’s case
was that he qualified
for all the four positions and the answer was
“yes”.
[30] The arbitrator
misunderstood Mr Bezuidenhout’s reason for having accepted the
retrenchment package. The arbitrator ignored
the uncontested evidence
of Mr Bezuidenhout and Mr Samuel, that Bles de Wet, the dealer
principal in George, did not want Mr Bezuidenhout
at the George
branch. Had Mr Bezuidenhout rejected the retrenchment package, he
would have been transferred to the George branch
working under
someone who had expressly stated on numerous occasions, he did not
want him there. The arbitrator further misunderstood
the applicant’s
case by finding that the applicants’ case was based on the fact
that certain positions had become available,
for which Mr
Bezuidenhout qualified, but the employer failed to consider him. This
is incorrect. The applicants’ case was
that certain positions
had become available, for which Mr Bezuidenhout qualified, but the
employer failed to offer any of these
positions to him for his
acceptance. If an arbitrator has misconceived the nature of the
dispute, then as stated in
Mashiane v Dolie No and Others
[2010] 4 BLLR 422
(LC) the award stands to be reviewed and set aside.
[31]
Counsel for the employer
argued that the facts before this Court are similar to those of
Kock
v Enviroserve Waste Management,
5
where it was held that
failure to offer the applicant a position which he had rejected on
three former occasions was not unfair.
The court respectively
disagrees. The facts of that case are distinguishable to the present
case, as Mr Bezuidenhout never rejected
any offer.
[32]
It
is clear that the arbitrator misunderstood the contractual obligation
on the employer. It is trite law that failure to re-employ
when there
is a formal binding written agreement,
amounts
to an unfair labour practice,
in
terms of section 186 (2) (C ) of the LRA. (See
NAAWU
v Borg-Warner SA (Pty) Ltd
(1994)
15 ILJ 509 (A) at 519).The
onus
rests on the applicants
to show that there is an obligation on the employer to re-employ him.
It is common cause there was a written
agreement in which the
employer under-took to re-employ Mr Bezuidenhout should a position
become available for which he qualified.
The action of the employer
to consider other people to fill the three positions of sales
manager, instead of Mr Bezuidenhout, amounted
to a breach of the
written agreement and was unfair. (See
NAAWU
v Borg-Warner SA (Pty) Ltd
).
[33]
The
employer in the answering affidavit raised the fact that Mr
Bezuidenhout had waived his right to be offered further positions.
There is no conduct on the part of Mr Bezudienhout in the form of
outward manifestations or un-communicated mental reservations
that
can be objectively interpreted as an intention to waive his right to
further positions. (See
Road
Accident Fund v Mothupi
2000
(4) SA (SCA) at 40.)
[34]
In
terms of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
6
in deciding whether an
award is reviewable, the only question that needs to be asked is
whether the decision reached by the arbitrator
is one that a
reasonable decision-maker could not have reached. The court finds the
arbitrator’s finding is not one which
a reasonable
decision-maker could have reached and is therefore reviewable.
[35]
The
review application stands to be granted.
[36] From the arbitration
hearing,
it
appears that there is still a good working relationship between the
employer and Mr Bezuidenhout, and accordingly, there appears
no
reason why Mr Bezuidenhout should not be placed in a position as
sales manager. The fact that all such positions may currently
be
filled is something the employer should have kept in mind all this
time. As stated in
SA
Commercial Catering & Allied Workers Union and Others v Mahawane
Country Club
,
7
‘
The respondent can
only have itself to blame if the second and further appellants are
reinstated and it has to decide what to do
with its present
employees’.
[37] Both parties sought
costs against each other. There is no reason why costs should not
follow the result.
[38]
The
court will not refer the matter back to the CCMA commissioner, but
will substitute the award with the following:
The arbitrator’s
award, dated 7 May 2011, issued under the auspices of MIBCO under
case number MICT 9639 is reviewed and
set aside
The said award is
substituted with the following award:
It is declared that the
employer committed an unfair labour practice in terms of section
186(2) (C ) of the Labour Relations
Act;
The employer is ordered
to re-employ Mr Bezuidenhout in the position of general sales
manager, alternatively the position of
sales manager-Mercedes,
further alternatively, the position of pre-owned sales manager,
within 30 days of the date on which
this order is served on it
The employer is ordered
to pay the costs of the review application as well as the costs of
the applicants’ condonation application.
____________________
Dosio AJ
Acting
Judge of the Labour Court
APPEARANCES
FOR
THE APPLICANTS: Dr Gerrie Ebersohn of Ebersohn Attorneys
FOR
THE FIRST RESPONDENT: Ms Mohsina Chenia of Glyn Marais Inc
1
66
of 1995.
2
(2002)
23 ILJ 358 (LAC).
3
(2007)
28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC).
4
Employment
Rights
(2010, Juta) at
page 46.
5
[2001]
7 BLLR 765
(LC).
6
(2007)
28 ILJ 2405 (CC);
12 BLLR 1097
(CC).
7
(2002)
23 ILJ 902 (LAC).