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[2013] ZALCJHB 17
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Langa v South African Local Government Bargaining Council (Mpumalanga) and Others (JR 3420/2009) [2013] ZALCJHB 17; (2013) 34 ILJ 2248 (LC) (8 February 2013)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no: JR 3420/2009
In the matter between:
IRENE MATSIE LANGA
...................................................................................
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
(MPUMALANGA)
......................................
First
Respondent
COMMISSIONER RAYMOND
HLONGWANE
..............................
Second
Respondent
DR. J.S. MOROKA LOCAL
MUNICIPALITY
....................................
Third Respondent
Heard: 16 October 2012
Delivered: 08 February
2013
Summary: Review
application – employer withdrawing letter of employment prior
to commencement date – employer requiring
employee to fulfil a
requirement not in the employment letter - employee claiming
dismissal 7 months later – choosing a date
not supported by
evidence as dismissal date – the date when letter of employment
formally withdrawn was the date of dismissal
– employee ought
to have filed for condonation for late referral of dispute.
___________________________________________________________________
JUDGMENT
BOQWANA AJ
Introduction
This is an application
for the review and setting aside of an arbitration award issued by
the second respondent (‘the commissioner’)
on 04
November 2009 under case number MPD040901.
In his award the
commissioner found that the applicant was neither employed nor
dismissed by the third respondent and accordingly
dismissed her
application.
Background
The third respondent
placed an advertisement for an Examiner of motor vehicle and Drivers
licences (‘Examiner’), for
which the applicant applied.
One of the requirements
in this advertisement was: ‘At least one year experience as
Examiner of vehicles and Testing Officer
for driver’s
licences.’
The applicant attended
an interview and was subsequently appointed as an Examiner upon
receipt of a letter of appointment dated
05 July 2008. According to
the letter appointment would be effective on 01 August 2008.
This letter attached a
document providing additional information regarding the letter of
appointment which was deemed to be an
integral part of the
appointment letter.
This document required
the applicant to be in possession of certain documentation when
reporting including ‘original educational
certificates
claimed’.
On 28 July 2008 the
applicant received a letter from the Acting Municipal Manager of the
third respondent stating that her appointment
to the position was
‘kept on hold pending finalization of further investigations
around the background surrounding your
training with the College,
which still casts some doubts on aspects relating to the institution
that sent you to the College.
The letter of appointment served to
you in this regard is officially withdrawn, pending the finalization
of the matter cited above
’ (own underline)
In a letter dated 22
July 2008, M E Mogane (‘Mogane’), Chief Licencing
Officer ) of Greater Marble Hall Municipality
confirmed that the
Applicant was sent to Boekenhout Traffic College for training as an
examiner but was unfortunately not employed
as she did not have a
motor cycle drivers licence as required by Greater Marble Hall
Municipality.
In a letter dated 14
August 2008 addressed to the Acting Municipal Manager of the third
respondent the Municipal Manager of Greater
Marble Hall Municipality
stated that no person by the name of the applicant was ever employed
or sent to any training by Greater
Marble Hall Municipality, either
as an intern or in any capacity. He further stated that the letter
sent by Mogane purporting
the contrary was incorrect.
In a letter dated 09
February 2009, the Acting Municipal Manager of the third respondent
referred to a meeting held on 14 October
2008 and reminded the
applicant that it was agreed that she must provide proof of previous
employment from the Greater Marble
Hall Municipality in order to
enable the third respondent to finalise the matter. The third
respondent requested the information
to be provided within seven
days failing which the matter will be put to rest by the
Municipality.
The applicant responded
with a letter dated 18 February 2009, stating that she was never
formally employed by the Greater Marble
Hall Municipality. She
further stated that she never mentioned in her CV that she was an
employee of Greater Marble Hall Municipality.
She stated that she
‘was offered a learnership for examiner at Boekenhoutkoof
Traffic College in or around January 2006,
which may be unique,
unusual and eye brow raising to other institutions’. The
content of her letter effectively confirmed
contents of Mogane’s
earlier letter. She ended the letter by stating that she still
considered herself as an employee of
the third respondent with
effect from 01 August 2008.
Bargaining council
proceedings
The applicant referred a
dismissal dispute to the first respondent (‘the bargaining
council’) on 01 April 2009 alleging
that she was dismissed on
22 March 2009.
The dispute remained
unresolved after conciliation and a certificate of non-resolution
was issued on 06 May 2009.
The applicant referred
the dispute on arbitration on 14 May 2009.
The matter was set down
for hearing on 09 July 2009. Apparently a jurisdictional ruling was
made pursuant to a point
in limine
raised by the third
respondent that the dispute arose on 11 August 2008 (which
submission the third respondent submits was made
in error) when the
applicant demanded re-instatement and accordingly it was referred
outside the 30 day period. The applicant
on the other hand contended
that she was not terminated by the letter dated 28 July 2008, she
became aware of the third respondent’s
intention to terminate
her employment upon receipt of a letter dated 09 February 2009. She
only considered her employment terminated
when the third respondent
failed to respond to her letter dated 18 February 2009. The
commissioner ruled that the applicant was
within her right to
consider herself terminated on 22 March 2009 when the respondent
failed to respond to her letter dated 18
February 2009 and
accordingly the bargaining council had jurisdiction to arbitrate the
dispute.
The matter was again set
down for arbitration on 19 August 2009. The third respondent raised
a further point
in limine
that the applicant had referred the
dispute to an incorrect forum and accordingly the bargaining council
lacked jurisdiction
to arbitrate the dispute. The commissioner noted
in his award that the third respondent had conceded the existence of
an employment
relationship and also conceded that this employment
relationship was terminated. The commissioner rejected the third
respondent’s
contention that the dispute ought to have been
referred to the CCMA. He further found that in view of the fact that
employment
relationship was not placed in dispute he was satisfied
that the dispute was properly referred to the bargaining council.
Arbitration award
The matter was once
again set down for arbitration on 28 September 2009. The issue to be
decided by the commissioner was whether
there was a dismissal. In
short the commissioner found that the applicant failed to fulfil one
of minimum requirements of the
position she applied for, being to
show that she had one year experience as Examiner of vehicles and
Testing Officer for driver’s
licences. Accordingly the third
respondent was within its rights to keep the appointment in abeyance
until such time the applicant
had complied with this minimum
requirement.
The commissioner further
held that it was clear from the evidence that the applicant was not
interested in ensuring that she met
this requirement to the
satisfaction of the third respondent. According to the commissioner
failure to meet this requirement
constituted a repudiation of her
contract of employment and/or nullified the offer made to her.
Based on that the
commissioner found that no employment relationship existed and no
dismissal took place.
Grounds for review
In short the applicant’s
grounds are that the commissioner did not apply his mind to the
factual material properly before
him and/or did not understand the
evidence before him and that his reasons and conclusions are fatally
flawed and not those a
reasonable decision maker could reach.
The commissioner acted
unreasonably, alternatively committed a gross irregularity, further
alternatively exceeded his powers by
revisiting the issue of the
existence of an employment relationship after the issue had already
been dealt with by him in the
second jurisdictional ruling dated 01
September 2009, (albeit incidental thereto) and under circumstances
where the existence
of an employment relationship was in any event
not disputed by the third respondent during arbitration proceedings.
The commissioner acted
unreasonably, alternatively committed a gross irregularity by
premising his finding on the existence of
a dismissal in the absence
of an employment relationship under circumstances where the
existence of an employment relationship
could and should no longer
have been an issue for determination during arbitration proceedings.
The commissioner’s
finding that the applicant was neither employed nor dismissed was
unreasonable or he erred in making
such a finding.
Third respondent’s
submissions
The third respondent
submits that the applicant was never dismissed but that her
employment was withdrawn before it commenced
due to her failure to
submit documentation regarding her previous working experience
allegedly with the Greater Marble Hall Municipality.
The third respondent
alleges that the applicant was required to submit the documentation
prior to the commencement of her contract.
The applicant did not
take issue with the withdrawal of her alleged appointment on 28 July
2008, pending submission of the required
documentation.
In her referral
documents she alleged that the dismissal date was 22 March 2009, if
she had an issue with the withdrawal of appointment
she would have
referred the dispute shortly after 28 July 2008 (within 30 days).
Instead the applicant went for a period of 9
months trying to
satisfy the employment requirements. Without an application for
condonation the bargaining council lacked jurisdiction.
For all
intents and purposes the applicant accepted the withdrawal (this is
supported by her conduct) and since that withdrawal
no further offer
and acceptance was made.
It was out of good faith
that the respondent kept persuading her to provide it with the
documentation as no further relationship
existed after 28 July 2008.
The
onus
rests
with the applicant to establish the employment relationship and in
the absence of that relationship no dismissal would
have occurred.
The present review
proceedings are not as a result of the employment withdrawal of 28
July 2008 and therefore do not constitute
the basis for the review
of the arbitration award.
Since the accepted offer
was not challenged it does not avail to the applicant to attempt to
rely on the withdrawn offer to establish
employment.
The applicant seeks to
make out a case for a dismissal on 09 February 2009. This is
inconsistent with the date placed in her referral
form and her
evidence on arbitration that she was dismissed on 22 March 2009.
Analysis
Test applicable
The
test applicable in this case is not whether or not the decision of
the commissioner is one that the reasonable decision maker
could not
reach, or whether the decision falls within the band of reasonable
decisions. The test is whether the commissioner
was correct in
finding that the bargaining council had jurisdiction, objectively
speaking.
1
Having
regard to the above, the court is called upon to determine
de
novo
whether
an employment relationship existed having regard to the objective
facts placed before it.
2
Did employment
relationship exist?
It
is now trite that the definition of employee in section 213 of the
Labour Relations Act
3
(‘the
LRA’) can be read to include a person who has concluded a
contract of employment the commencement of which is
deferred to a
future date (such as in this case).
4
A
contract of employment may be subject to a suspensive condition
which means that the conditional employment will terminate upon
non-fulfilment of that condition.
5
The third respondent
conceded that there was no condition attached to the appointment
letter. Its case is that there was a requirement
placed in an advert
that the applicant must have one year experience. The absence of
that the indication that such a requirement
was fulfilled from the
applicant’s CV’s was seen by the third respondent as an
oversight. They then requested her
to furnish the third respondent
with the said information prior to commencing with her employment.
It is common cause that that
requirement was not stipulated in the
letter of appointment itself but was apparently communicated during
the interview.
The applicant was
appointed despite her not having fulfilled this requirement and her
letter of appointment did not incorporate
it as condition. The third
respondent’s witnesses conceded during arbitration that an
employment relationship had existed
but what was being contended was
that dismissal did not occur.
Therefore it seems to be
common cause to me that at some stage or at least prior to 28 July
2008 there was an employment relationship.
I will therefore not go
into too much detail on that issue. The letter of appointment did
create the employment relationship
between the applicant and the
third respondent. The third respondent’s contention is that
after 28 July 2008 no employment
relationship existed.
In view of the
employment relationship having being established by the letter of
appointment, the applicant fell under the protection
of the LRA and
that meant that the relationship had to be governed by the
provisions of the LRA. The third respondent was not
permitted to
simply withdraw the letter of appointment without affording the
applicant an opportunity to be heard as required
by the law.
Accordingly, if she lied about her experience or failed to provide
information as required she should have been afforded
a hearing
before the withdrawal of her appointment. The fact that she had not
yet commenced working is of no purpose. She was
an employee at the
time. The withdrawal of her employment on 28 July 2008 constituted
dismissal in my view.
Date of dismissal
Having found that
employment relationship existed, the important issue to determine is
whether the applicant’s failure to
challenge her dismissal on
28 July 2008 has any bearing on the success of her case.
The third respondent
contends that because the applicant failed to challenge the
withdrawal shortly after 28 July 2008 she should
be taken to have
accepted it. She instead went along to try and fulfil the
requirements. I cannot agree with that submission.
I have not found
any evidence supporting this view. If the applicant saw herself as
an employee of the third respondent at that
time (whether rightly or
wrongly) she would feel obliged to co-operate with the requirements
of the third respondent as her alleged
employer.
The applicant however
has some difficulty in that she does not allege to have been
dismissed on 28 July 2008. She alleges that
her date of dismissal
was 22 March 2009 in her referral form and also based her view on
the letter of 09 February 2009. The commissioner
agreed that she was
entitled to allege 22 March 2009. I could not find any basis for
this particular date to be picked as a trigger.
The letter of 09
February 2009 suggests that if no documentation is received within
seven days then the third respondent would
put the matter to bed.
The applicant did not choose this date either. She picked 22 March
2009 as a date of dismissal. I found
no evidence pointing to that
specific 22 March 2009 date. This leads to one conclusion that the
applicant was not dismissed on
the date she alleges.
Condonation
application
The applicant was
dismissed on 28 July 2008 and therefore should have referred a
dispute within 30 days of that date or apply
for condonation when
she referred the dispute to the bargaining council in 2009. In the
absence of that condonation application
the bargaining council
lacked jurisdiction.
My finding therefore is
that the commissioner was wrong in finding that no employment
relationship existed. The applicant was
however dismissed on 28 July
2008 and should have referred a dispute on that basis within 30 days
of her dismissal or apply for
condonation for the late filing of the
referral when she referred the matter in 2009. There is no basis for
the allegation that
she was dismissed on 22 March 2009.
Whilst the arbitrator’s
award falls to be reviewed and set aside because of the
commissioner’s finding that no employment
relationship
existed, it would not make sense to remit the matter back to the
bargaining council as a wrong date of dismissal
was alleged by the
applicant on the referral form and on evidence. As a consequence, no
condonation application was filed for
the late referral of the
dispute. Having read the record of the bargaining council
proceedings I have found that the condonation
issue was raised by
the third respondent.
I therefore make the
following order:
The an arbitration award
issued by the second respondent (‘the commissioner’) on
04 November 2009 under case number
MPD040901 is reviewed and set
aside;
The matter is not
remitted back to the bargaining council, because in the absence of
the condonation application the bargaining
council lacked
jurisdiction to arbitrate the dispute.
There is no order as to
costs.
__________________
Boqwana AJ
Acting Judge of the
Labour Court
APPEARANCES:
FOR THE APPLICANTS: Adv K
Lapham
Instructed by Geldenhuys
CJ @ Law Inc., Pretoria
FOR THE THIRD RESPONDENT:
Mr Moshoana, Mohlaba & Moshoana Inc., Braamfontein
1
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others, SA Rugby (Pty) Ltd v SARPU and Another
[2008] ZALAC 3
;
[2008] 9
BLLR 845
(LAC) at paras 39 – 40 and
2
In
this regard see
Sanlam Insurance Life Insurance Limited v CCMA
and Others
unreported judgment case number JA38/08 at para 17.
3
Act
No. 66 of 1995
4
Wyeth
SA
(Pty)
Ltd v Manqele and Others
(2005)
26 ILJ 749
(LAC)
at para 52.
5
Phera
v Education Labour Relations Council and Others
(2010) 31 ILJ 992 (LC) at para 25.