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[2012] ZALCJHB 185
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Air and Allied Technologies CC v Commission for Conciliation Mediation and Arbitration and Others (JR 2276/10) [2012] ZALCJHB 185 (11 December 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no. JR 2276/10
In the matter between:
AIR AND ALLIED TECHNOLOGIES CC
.....................................................
Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATIONS
................................................
First
Respondent
BONGANI KHUMALO
N.O.
.......................................................
Second
Respondent
SHADRACK MASINA
....................................................................
Third
Respondent
Heard: 11 July 2012
Delivered: 11 December 2012
Summary:
_______________________________________________________________
JUDGMENT
WOODHOUSE, AJ
1 This is a review application brought in terms of
section 145 of the Labour Relations Act, No. 66 of 1995 (‘the
Act”).
The background to this matter is set out below.
2 The Third Respondent (“Masina”) was
employed by the Applicant as a site foreman. As at 2 February 2010,
he reported
to Eugene Lottering (“Lottering”).
3 Masina had been employed on a contract of employment
of limited duration dated 13 October 2009. The contract was meant to
have
expired on 9 November 2009.
4 It also appears that Masina had been employed by the
Applicant prior to 9 October 2009.
5 On or about 2 February 2010, a meeting was held
between Lottering and Masina. There is a dispute between the parties
as to what
was agreed at this meeting. According to the Applicant,
Lottering dealt with Masina’s alleged poor timekeeping and
required
him to make certain undertakings concerning this and the
reliability of his vehicle. Masina’s version is that he was
required
to make certain undertakings which he could just not fulfil.
These undertakings related to a variety of issues.
6 It was common cause that Masina was to revert to
Lottering on 4 February 2012 with his response to what had been
discussed in
that meeting.
7 Masina did not return to work on 4
February 2010. Instead, he mandated the Federated Council of Retail
and Allied Workers Union
(“FEDCRAW”) to send a letter to
the Applicant on his behalf. This, they did on 4 February 2010.
1
In this letter, a number of
allegations and/or demands were made, including that:
7.1 Masina had been dismissed;
7.2 Masina had been demoted and somebody else had been
employed to replace him;
7.3 Masina had been required to comply with the
unreasonable undertakings put to him by Lottering on 2 February 2010;
7.4 Masina should be allowed to return to resume his
duties as site foreman.
8 The Company, through its consultants HHA, responded to
FEDCRAW in a letter dated 16 February 2010. They effectively disputed
the
contents of FEDCRAW’s letter dated 4 February 2010 and
stated that if Masina was dissatisfied, he should invoke the
procedures
contained in the Act.
9 On 19 February 2010, FEDCRAW also
received a letter from the Applicant.
2
In this letter, they advised that
Masina was appointed on a limited duration contract which had expired
at the end of January 2012.
10 At the arbitration, Masina testified that:
10.1 he signed a contract of employment with the
Applicant on 9 October 2009;
10.2 on 28 and 29 January 2010, he had worked at
Modderfontein. Lottering had threatened to fire him;
10.3 he was called to a meeting on 2 February 2010 by
Lottering who told him that he could not work with him and would
utilise him
on a contract basis. He also told Masina that he was
dismissing him;
10.4 at the meeting on 2 February 2010, Lottering had
said to him that he had to go home and think about whether he could
work and
commit to certain undertakings regarding his timekeeping
reliability and his family’s illnesses. He also said that he
had
employed someone else to replace him and that there was no job
for him;
10.5 after he was dismissed on 2 February 2010, he shook
hands with Lottering and they parted ways;
10.6 he responded to Lottering’s request to revert
by 4 February 2010 through FEDCRAW;
10.7 when he demanded a letter of dismissal, he was told
to go home and think about the issues discussed and confirm whether
he
could comply with the undertakings sought.
11 Lottering testified on behalf of the Applicant and
stated,
inter alia
, that:
11.1 the letter sent to FEDCRAW on 19
February 2010 was not sent by him;
3
11.2 his limited duration contract extended beyond 9
November 2009;
11.3 Masina was never dismissed and no-one was employed
to replace him;
11.4 a meeting did take place between himself and Masina
on 2 February 2010. At the meeting, he expressed his concern about
Masina’s
late coming. If his late coming could not be resolved,
it was possible that the Company would use him as a subcontractor.
The meeting
on 2 February 2010 was about Masina’s
performance. Masina requested a letter of dismissal which he refused
to give him;
11.5 if Masina could resolve his problems regarding his
vehicle and time keeping, then he would be able to be used on another
contract;
11.6 Masina never reverted to Lottering after 4 February
2010 as requested. This despite Lottering having received the letter
from
FEDCRAW of 4 February 2010;
11.7 he did not respond to the letter from FEDCRAW dated
4 February 2010 because they had handed the matter over to HHA.
Arbitration award
12 The Commissioner found that:
12.1 Masina was dismissed and that his dismissal was
both procedurally and substantively unfair. It is this finding that
the applicant
seeks to review and set aside;
12.2 the Applicant’s version was improbable and
that Masina was a credible witness. His version was to be favoured
over that
of the Applicant. He found that Lottering had conceded that
Masina had been dismissed. This is an issue which the Applicant
disputes
and which I will deal with more fully later;
12.3 the Applicant contended during arbitration that
Masina had deserted, which the Commissioner found improbable given
that the
Applicant had conceded under cross-examination that he had
dismissed Masina;
12.4 the Applicant’s version that Masina should
address the issue of his transport before he returned to work was not
tested
at a disciplinary enquiry. In any event, these versions could
not be sustained.
Grounds of review
13 The Applicant contends that the Commissioner’s
award is reviewable for the following reasons:
13.1 he committed misconduct or a gross irregularity by
disregarding or failing to properly record certain relevant evidence
when
arriving at his decision;
13.2 he committed misconduct or a gross irregularity by
failing to properly apply his mind to the evidence;
13.3 the factual legal conclusions which the
Commissioner arrived at were not rationally justifiable;
13.4 the main area of criticism is
the Commissioner’s finding in paragraph 22 of his award.
4
The gist of the complaint relates to
the Commissioner’s finding that Lottering conceded under
cross-examination that he had
dismissed Masina;
13.5 Mr Hollander, acting on behalf of the Applicant,
conceded that the Applicant’s case rested on this issue. He
argued that
Lottering had never conceded that he had dismissed
Masina. He further argued that the Commissioner incorrectly recorded
a concession
as contained in his typed transcript of his handwritten
notes where the following is stated -
‘
Can you still say you never terminated
employee? Not unfair?
What do you say? Yes. (Termination)’
5
Test on review
14 The Act allows a party to launch a
review application in circumstances where there is a defect in
arbitration proceedings.
6
A defect is where the Commissioner
has:
14.1 committed misconduct in relation to his or her
duties as a commissioner;
14.2 committed a gross irregularity on the conduct of
the arbitration proceedings;
14.3 exceeded his or her powers;
14.4 that the award has been
improperly obtained.
7
15 In interpreting or applying
section 145 of the Act, the test on review has now been settled by
the Constitutional Court.
8
In essence, the test is –
‘
Is a decision reached by the
Commissioner one that a reasonable decision-maker could not reach?’
9
16 I was referred to the judgment of
the Labour Appeal Court of South Africa in the matter between
Herholdt and Nedbank
Limited
.
10
I was asked by Mr Hollander to take
into account references in that judgment to this Court’s and
the Labour Appeal Court’s
attitude to where a commissioner
fails to consider material facts. These cases have found that where a
commissioner fails to consider
material facts, this will constitute a
gross irregularity in the conduct of arbitration in terms of the Act.
This was submitted
to this Court on the basis that the Commissioner
in this case had taken into account material that was not properly
before him,
in particular a concession by Lottering that he had
dismissed Masina.
17 There is no proper transcript of
this arbitration. The parties were required to reconstruct it.
Reliance is had to the Commissioner’s
typed notes and those of
the Applicant’s representative at the arbitration. The
Commissioner also states in his award quite
clearly that Lottering
had conceded that Masina was dismissed.
11
Mr Hollander submits that this is
incorrect and that the Commissioner’s own transcript
contradicts his findings in this regard.
12
As referred to earlier, the
Commissioner records ‘can you still say that you never
terminated employee? Not unfair? What do
you say? Answer: yes
(termination).’
18 Mr Hollander submitted that this
did not mean that Lottering had conceded that Masina had been
dismissed. I would have agreed
with him had the Commissioner not used
the word “termination” and placed this in brackets after
the word “
yes
”
.
By doing so, the logical interpretation of this is that the
Commissioner recorded that the witness had conceded the point that
Masina’s employment had been terminated.
19 What also undermines the Applicant’s version
that Masina was not dismissed is the following:
19.1 the content of the letters sent
by the Applicant and/or its consultant on 16 and 19 February 2010;
13
19.2 Lottering’s evidence during the arbitration
that Masina had deserted. Mr Hollander conceded that it would be hard
to
argue that Masina had deserted in the context of the circumstances
of this case;
19.3 the fact that neither the
Applicant nor its consultants had responded to the views of Masina as
set out in his Union’s
letter dated 4 February 2010;
14
19.4 in that letter, Masina makes a number of
allegations but importantly alleges that he was dismissed or unfairly
demoted or had
conditions placed upon him which he could not meet.
The letter concludes with a demand that he be entitled to return to
work as
a site foreman within seven days of date of that letter;
19.5 Mr Hollander correctly conceded that the manner in
which the Company and/or its consultants responded to that letter
could
have allowed Masina to labour under the impression that his
views as expressed in his letter were correct.
20 In light of the above, the Court finds that:
20.1 the Commissioner correctly found that there was a
dismissal based on the evidence before him and that Lottering
conceded this
under cross-examination;
20.2 the Commissioner made a credibility finding
regarding Lottering’s evidence. It is often difficult, without
hearing the
evidence, to undermine such a finding. However, his
finding in this regard has not been challenged on review. It is in
fact supported
by the various versions given by Lottering at
arbitration or those that were put on behalf of the Applicant to
Masina. These versions
appeared often to be inconsistent. Such
versions related,
inter alia
, to whether Masina’s
employment ended by virtue of the expiry of his limited duration
contract or because he had deserted;
20.3 it is clear from reading Lottering’s evidence
that he tried to distance himself from the contents of the
Applicant’s
letter to FEDCRAW and that of his consultants. His
answers to questions on these issues were completely unsatisfactory.
The only
reasonable inference that one can draw from the manner in
which the FEDCRAW letter was responded to is that Masina was
dismissed.
21 In light of the above, the Commissioner has not
committed a reviewable irregularity.
22 In light of the above, I make the following Order:
22.1 the Applicant’s review is dismissed;
22.2 the Applicant is ordered to pay Masina’s
costs.
___________________
WOODHOUSE
Acting Judge of the Labour Court
APPEARANCES
For the Applicant: Advocate L Hollander
Instructed by: Darryl Furman and Associates
For the Respondent: Ramushu, Mashile, Twala Inc.
1
Pages
229 to 231 of the record.
2
Page
232 of the record.
3
Page
232 of the record.
4
Page
17 of the record.
5
Paragraph
9, page 217 of the record.
6
Section
145 (1) of the Act.
7
Section
145 (2) of the Act.
8
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2007 12
BLLR 1097
(CC).
9
At
para 110.
10
(2012)
23 ILJ 1789 (LAC).
11
Para
22, page 82 of the record.
12
Paragraph
9, page 217 of the record.
13
Pages
58 and 59 of the record.
14
Page
54 of the record.