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[2012] ZALCCT 39
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Stars Away International Airline (Pty) Ltd t/a Stars Away Aviation v Thee NO and Others (C 08/2012) [2012] ZALCCT 39; (2013) 34 ILJ 1272 (LC) (18 September 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of
interest to other judges
case
no: C 08/2012
In the matter between:
STARS AWAY INTERNATIONAL AIRLINES (PTY) LTD
t/a STARS AWAY AVIATION
Applicant
and
JOSEPH THEE N.O.
First Respondent
CCMA
Second Respondent
ANTHONY BAXTER
Third Respondent
Heard
:
29 August 2012
Delivered
:
18 September 2012
Summary:
Review – constructive dismissal – no
evidence by employer – question whether award improperly
obtained. Interpretation
of rule 7A(8) – requirement of
“notice”.
JUDGMENT
STEENKAMP J
Introduction
This application raises the question of the requirement of a
“notice” in rule 7A(8) of the Rules of the Labour Court.
It also considers the question whether an arbitration award has been
improperly obtained in circumstances where the employer
elected not
to attend the arbitration proceedings. The employer alleges that the
employee’s evidence on the basis of which
the arbitration
award was made, was false.
The interpretation of rule 7A(8) arises in the context of an
application for condonation. I shall first deal with that
application
and the interpretation of the rule. I shall then deal
with the review application in the context of the applicant’s
prospects
of success and, if necessary, on the merits.
Background facts
The applicant entered into an employment agreement with the third
respondent, Tony Baxter (“the employee”) on 22
February
2011. The applicant conducts an airline business and the employee is
a pilot. They did not enter into a written contract
of employment,
other than an “offer fof employment” from the applicant
that was accepted by the employee on the same
day. In terms of that
offer, the employee would be employed as the captain of a freighter
aeroplane. The terms and conditions
of his employment were set out
as follows:
“
1.
Salary 6000 USD
1
per month.
2. You will operate on a month
on month off basis (this however can change e.g. sickness of a crew
member etc).
3. While in the DRC you will
receive 70 USD S&T per day.
4. You will be based in
Kinshasa.
5. Accommodation and positioning
flights will be paid for by the company.
6. The aircraft will operate
internally in the DRC.
7. Anticipated flying hours per
month +- 80 hrs.
8. Start date – mid March
subject to SACAA approval of maintenance away from base and pilot
re-currency training.”
On the same day, the employee sent the applicant a further email in
these terms:
“
1.
Please find attached License, Medical and passport photos.
2. How, when and where, is the
remuneration to take place?
3. You will have to advise me as
to the certificates required for operation in the DRC.”
He received no response. According to his evidence at arbitration,
he received no payment (other than to cover disbursements)
since his
appointment. On 17 August 2011 he sent a letter to the applicant in
these terms:
“
RE:
TERMINATION OF SERVICE
Further to the fact that I have
not been paid any salary since the appointment to your staff as per
your letter dated 22
nd
February 2011, I am no longer able
to continue on this basis. The situation has become completely
intolerable, and with inadequate
response from your administration, I
therefore find myself with no option other than being forced to
resign.
I hereby resign with immediate
effect.
I shall be declaring a dispute
at the CCMA.”
The employee then did, indeed, refer a constructive dismissal
dispute to the CCMA on 22 August 2011. The applicant – that
was represented by its attorneys of record – elected not to
attend the arbitration proceedings after conciliation had failed.
Having heard only the employee’s evidence, the arbitrator
found that he had been constructively dismissed; that it was
unfair;
and ordered the applicant to pay him the equivalent of twelve
months’ remuneration, amounting to $72 000 (R612 000
at the prevailing exchange rate).
The applicant wishes to have that award reviewed and set aside.
The condonation application and the interpretation of rule 7A(8)
The arbitration award was handed down on 4 December 2011. The
applicant delivered its review application on 10 January 2012,
i.e.
within the six-week period prescribed by section 145(1)(a) of the
Labour Relations Act.
2
On 12 January 2012 the employee’s attorneys delivered a
“notice of intention to oppose”. The applicant delivered
a supplementary affidavit on 10 February 2012. The affidavit was not
accompanied by a notice. A filing sheet to which the affidavit
was
attached, did not mention any rule in terms of which the affidavit
was filed, but it is apparent that it was intended to
have been a
supplementary affidavit delivered in terms of rule 7A(8).
Rule 7A(8) and (9) provides as follows:
“
(8) The
applicant must within 10 days after the registrar has made the record
available either—
(
a
) by delivery of a
notice and accompanying affidavit, amend, add to or vary the terms of
the notice of motion and supplement the
supporting affidavit; or
(
b
) deliver a notice that
the applicant stands by its notice of motion.
(9) Any person
wishing to oppose the granting of the order prayed in the notice of
motion must, within 10 days after
receipt of the notice of amendment
or notice that the applicant stands by its notice of motion, deliver
an affidavit in answer
to the allegations made by the applicant.”
In this case, the employee’s attorneys did not deliver an
answering affidavit within 10 days after receiving the applicant’s
supplementary affidavit. They only did so on 7 May 2012, i.e. almost
three months after the supplementary affidavit had been
delivered.
The question is whether the employee has to apply for condonation.
He says no condonation is required, as the applicant
never delivered
a “notice” as required by rule 7A(8). The applicant
argues that it is implicit in the wording of
the rule that, once the
applicant delivers a supplementary affidavit, the respondent has to
deliver an answering affidavit within
10 days.
The first part of rule 7A(8) is peremptory. The applicant
must
do
one of two things: either it must “by delivery of a notice and
accompanying affidavit, amend, add to or vary the terms
of the
notice of motion and supplement the supporting affidavit”;
or
it must deliver a notice that it stands by its notice of
motion.
If an applicant wishes merely to stand by its initial notice of
motion and founding affidavit, the rule is simple: the applicant
must still deliver a notice (without an accompanying affidavit), but
it will merely state that the applicant stands by its notice
of
motion. It is similarly clear if the applicant wishes to amend the
notice of motion
and
supplement the founding affidavit. Then
it has to file a notice to that effect, together with the
supplementary affidavit.
In this case, the applicant has not amended its notice of motion; it
has, however, elected to supplement the founding affidavit.
Was it
necessary to deliver a “notice” accompanying that
supplementary affidavit?
The wording of rule 7A(8)(a) must, it seems to me, be read
conjunctively. I read it to mean that, should the applicant wish to
supplement its founding affidavit, it has to deliver a notice
together with the accompanying supplementary affidavit. The rules
board could not have contemplated that it would require a notice
from the applicant where it does not intend to supplement, add
to or
vary anything (i.e. where it stands by its notice of motion), yet it
does not require a notice that the applicant wishes
to add to its
founding affidavit.
On a very broad purposive reading, it may well be argued that it
should be obvious from the supplementary affidavit itself that
the
applicant wishes to supplement the founding affidavit. But the rule
provides that the applicant must “by delivery of
notice
and
accompanying affidavit ... supplement the supporting affidavit.”
The purpose of this requirement may be to make it clear
that the
applicant has perused the record of the proceedings it intends to
review, and has elected to
either
amend or supplement the
notice of motion, or the founding affidavit, or both;
or
to
stand by its notice of motion and founding affidavit. It may well be
that an applicant wishes to deliver a supplementary affidavit
–
for example a confirmatory affidavit that was not delivered
initially due to the unavailability of a witness –
outside and
independent of the time periods contemplated by rule 7A.
I conclude, therefore, that it is a peremptory requirement of rule
7A(8) that the applicant must deliver a notice together with
a
supplementary affidavit, and that the mere delivery of a
supplementary affidavit without an accompanying notice will not
trigger the time period in rule 7A(9).
The common sense approach would of course be for the attorney who
receives a supplementary affidavit in the context of a review
application, to contact his or her counterpart and to clarify
whether it was intended to have been delivered in terms of rule
7A(8); nevertheless, for the sake of clarity and to cater for the
odd occasion where some confusion may arise, legal representatives
acting for the applicants in review applications would be well
advised to adhere strictly to the rule.
Given the view I have taken of the interpretation of the rule, the
employee did not need to apply for condonation. And even if
I am
wrong in this regard, the evident confusion around the proper
interpretation of the rule constitutes good grounds for condonation.
Neither party is held liable for the other’s costs in respect
of the condonation application.
The review application
The applicant wishes to have the arbitration award reviewed and set
aside in terms of s 145(2)(b) and s 145(2)(a)(iii) of the
LRA. Its
argument is that, even though it did not attend the arbitration, the
employee tendered false evidence and the award
was improperly
obtained.
Because the finding that the employee was constructively dismissed
goes to the jurisdiction of the CCMA, the
Sidumo
test
3
does not apply.
4
The question is simply whether the arbitrator was right or wrong.
In coming to the conclusion that he did – i.e. that the
employee had been constructively dismissed – the arbitrator
was, of course, confined to the evidence that the employee gave. The
applicant was well aware of the date of arbitration and
it was
legally represented; why it chose to simply ignore its opportunity
to be heard, boggles the mind. Nevertheless, this Court
now has to
consider whether the arbitrator correctly found, based on the
evidence before him, that the employee had been constructively
dismissed and that it was unfair.
The applicant’s argument goes further, though: it argues that
the evidence that the employee gave was false, and therefore
the
award was improperly obtained.
It is necessary, then, to examine the evidence. It is common cause
that the employee was offered and accepted employment with
the
applicant. There can be no doubt that an employment relationship
came into existence, despite the applicant’s earlier
protestations to the contrary: it attempted to argue, based on
evidence that never served before the arbitrator, that the agreement
was subject to a suspensive condition between it and a third party
known as Armi. The employee was not a party to that agreement.
There
is no evidence that the employee was even aware of the agreement. It
certainly did not serve before the arbitrator. That
argument has no
merit.
The applicant’s alternative argument appears to be that, even
if an employment contract did come into existence, there
was no
constructive dismissal. The employee, it maintains, was not entitled
to any payment because a further suspensive condition
had not been
fulfilled: that is “SACAA approval of maintenance away from
base and pilot re-currency training.”
It is common cause that the employee did undergo re-currency
training and that it was approved. That condition was therefore
fulfilled. However, the applicant has now placed evidence before the
court – that it chose not to place before the arbitrator
–
that the South African Civil Aviation Authority (SACAA) did not
provide approval to maintain the aircraft that theemployee
was to
pilot in the DRC. SACAA denied that application in August 2011.
The award
The arbitrator took into account that an employment relationship
came into being in February 2011 and that the employee did not
get
paid for six months, leading to his resignation. He had contacted
the applicant on numerous occasions, to no avail. This
led to his
employment conditions becoming intolerable. The arbitrator came to
the conclusion that the employee had exhausted
internal remedies and
that could no longer be expected to endure circumstances where he
was not being paid.
Award improperly obtained?
Section 145(2)(b) of the LRA specifically lists as a ground of
review the fact that an award had been improperly obtained. What
does this mean?
It seems to me that the clear-cut cases would be where the
successful party had improperly influenced the arbitrator, for
example
by bribing him or her; or where the successful party,
knowing that the other party was unaware of the arbitration date,
convinced
the arbitrator to proceed and obtained an award based on
perjured evidence.
The circumstances in this case are by no means clear cut. The
applicant was well aware of the arbitration but chose not to use
the
opportunity to place any evidence before the arbitrator. The only
basis on which it could impugn the award, is if the version
put up
by the employee is patently false. That much was accepted by the
court in
Moloi v Euijen NO
5
,
although that was not the basis for the allegation that the
award had been improperly obtained in that case.
6
In
Van Schalkwyk v Vlok
7
the court held that, in order to set aside an award of an arbitrator
on the ground that false evidence was presented at arbitration,
it
is necessary to show that the evidence was material in the
decision-making process and that it influenced the arbitrator in
making his decision.
The court in
Graaff-ReinetMunicpality v Jansen
8
set aside an arbitration award where the successful party presented
false evidence.
Did the employee in the current case place false evidence before the
arbitrator in order to obtain the award in his favour?
Apart from his
viva voce
evidence, the employee also placed
documentary evidence in the form of correspondence – mainly by
email – between
him and the applicant. The veracity of these
emails is not in dispute. What could be gleaned from them?
Firstly, the employee accepted the offer of employment. The monthly
salary would be $6000 per month. Neither party queried this
amount.
On the same day that he accepted the offer, the employee asked:
“How, when and where, is the remuneration to take
place?”
This cannot be construed as an acceptance that the employee was not
entitled to any remuneration at that stage,
as the applicant would
have it; on the contrary, on the plain language of the query, the
employee simply sought clarification
as to how, when and where he
would be paid; certainly not “how much” or whether he
would be paid at all. Surely the
arbitrator cannot be faulted to
have accepted that the employee was entitled to payment in
circumstances where, firstly, the
applicant did not put up any
version to the contrary; and secondly, the applicant did not bother
to respond to the employee’s
query at the time. Neither can it
be said that the employee’s understanding – that he was
entitled to payment as
per the offer and acceptance of employment –
was false or misleading.
The employee met with the applicant’s operations manager,
Tubby McLoughlin, on 3 May 2011. On 10 My 2011 he sent McLoughlin
an
email referring to the meeting and recording the following:
“
1.
Your email of 22
nd
February 2011, regarding the offer of employment on the DC9.
2. My email of the 22
nd
,
accepting the offer.
3. My email of the 22
nd
,
requesting remuneration details. To date I have not received a reply.
...
As I feel that I (and others)
have gone the extra mile, since the 22
nd
February, to get
this contract operational, the lack of appreciation by Stars Away to
answer or reply to this matter of remuneration,
since that date, does
not engender feelings of confidence in this area. We after all have
been on standby footing since then, and
as human beings are unable to
go into hibernation, or suspend monthly accounts, costs and
disbursements in the interim.
Would you be so kind as to reply
to this email, as to the manner in which Stars Away intends to
address the concerns expressed?”
The applicant made much of the reference to “standby footing”
in its oral argument before this Court; but there is
nothing in that
reference to suggest that the employee was under the impression that
he was not entitled to remuneration while
he was on standby footing.
And if that was the applicant’s case, why did it not take up
the employee’s numerous –
almost desperate –
exhortations to respond to his queries?
Instead, the employee was met with silence, prompting him to write
to McLoughlin again a week later, on 17 May 2011, in these
terms:
“
My
email dated 10
th
May 2011 refers.
As it has been a week now and
having not been privileged [
sic
] the courtesy of a reply, am I
to assume that my services are no longer required and that the offer
of employment has been terminated?
The lack of response on the
issue of remuneration does not bode well for the future of relations,
if any, between management and
crew, in this most basic of
contractual obligations.
I believe that I have acted in
good faith and goodwill in all of my dealings with Stars Away, and
now request that Stars Away return
such with equal respect and
consideration.”
The applicant eventually bothered to respond on 20 May
2011.McLoughlin told the employee:
“
At a
meeting on Wednesday evening it was agreed
9
that all the DC-9 crew will be on the Stars Away pay-roll as of 1 May
2011. I realise this is no the outcome you were hoping for,
but under
the present situation we ahve no alternative. Your monthly salary
will be $6000, 00 USD.”
The employee responded promptly on the same day, stating that he
found this offer unacceptable.
On 7 June the employee consulted his attorneys. The attorney,
Michael Bagraim, wrote to the applicant in these terms on 17 June
2011:
“
We act
on behalf of Tony Baxter who has not received his salary and has not
had his query answered.
We reserve all his rights.
Unless we hear from you within 7
days we shall be obliged to take further action without any recourse
to you and reserve our rights
to claim all our legal costs.”
Various telephone conversations between Bagraim and McLoughlin
ensued. Eventually the employee – without his attorney –
met McLoughlin on 11 August 2011. The meeting was inconclusive.
Further attempts to resolve the situation also went nowhere,
prompting the letter of resignation on 17 August 2011 in which the
employee stated that “the situation has become completely
intolerable”. He then referred the dispute to the CCMA.
It appears to me that the arbitrator properly came to the conclusion
that the employee resigned because the employer had rendered
his
continued employment intolerable, based on the uncontested evidence
before him; and I am not persuaded that the evidence
was patently
false.
It is clear from the employee’s evidence and from the
contemporaneous correspondence that he constantly attempted to get
clarification about his remuneration from the applicant, but it was
not forthcoming. It is not apparent that the employee’s
evidence that he was under the impression that he was entitled to be
paid $6000 per month was false. His repeated queries about
remuneration called for an explanation; it is inexplicable that the
applicant did not respond to him with the explanation that
it now
attempts to put up in a review application and that it did not offer
to the employee in response to his queries or at
arbitration.
In these circumstances, the award is not open to review. Both
parties asked that costs should follow the result. I agree.
Order
The application for review is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
HC Nieuwoudt of
Norton Rose.
THIRD RESPONDENT:
Michael Bagraim
attorney.
1
United
States Dollars.
2
Act
66 of 1995 (“the LRA”).
3
i.e.
whether the conclusion reached by the arbitrator was so unreasonable
that no other arbitrator could have come to the same
conclusion:
Sidumo& another v Rustenburg Platinum Mines Ltd & others
(2007) 28
ILJ
2405 (CC).
4
South
African Rugby Players’ Association & others v SA Rugby
(Pty) Ltd
(2008) 29
ILJ
2218 (LAC);
Asara Wine Estate v
Van Rooyen.
5
(1997)
18
ILJ
1372 (LC); [1997] 8 BLLR 1022 (LC).
6
The
court in
Moloi v Euijen
found that the mere allegation that
there had been a “secret meeting” between the arbitrator
and the employer’s
representative did not amount to an
allegation that the arbitrator had been bribed or improperly
influenced in making his award.
7
1914
CPD 999.
8
1917
CPD 604.
9
Hedos
not say between whom.