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[2013] ZALCJHB 35
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Bidvest Bank Ltd v Rafee (JR 1412/11) [2013] ZALCJHB 35 (8 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Not o
f interest to other judges
case no: j
R 1412/11
In the matter between:
BIDVEST BANK LIMITED
Applicant
and
NASIMA RAFEE
First Respondent
CCMA
Second Respondent
RICHARD HARVEY
Third Respondent
Heard
:
05
February
201
3
Delivered
:
08
February 2013
Summary:
Review of an award in instances
where the Arbitrator is alleged to have not acted reasonably.
JUDGMENT
MOSHOANA AJ
Introduction
This
is an application to review and set aside an
award issued by the first respondent under the auspices of the
second respondent.
The
second respondent found that the dismissal of
the third respondent was procedurally and substantively unfair.
Whereafter, he ordered
the applicant to reinstate the third
respondent on the same terms and conditions that existed prior to
his dismissal on 09 November
2010. She ordered payment of back pay
and performance bonus.
Background facts
The
third respondent was employed as a trade services manger. There were
allegations of complaints by customers of the applicant.
The third
respondent was suspended around May 2010. No disciplinary steps were
taken against him as a result. Instead, allegations
of
incompatibility were leveled against the third respondent. Numerous
meetings were held in an attempt to reach an amicable
solution. On 9
November 2010, the third respondent received a letter advising him
of his dismissal due to incompatibility.
Aggrieved
by his dismissal, the third respondent referred his dispute of
alleged unfair dismissal to the second respondent. The
first
respondent arbitrated the dispute and issued an award in favour of
the third respondent. The applicant was aggrieved thereby
and
launched this application. The application is opposed by the third
respondent.
Evaluation
This being a review application, this court shall
be guided by the test as developed in the
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
judgment.
1
The test requires no repetition in this judgment.
It is by now well known in the labour law community. The heads filed
on behalf
of the applicant were lengthy, confusing and unhelpful to
a large degree. Mosam, appearing for the applicant, did not refer to
them and somewhat abandoned most of the grounds contended therein.
He submitted that in line with
CWUSA v
Tao Ying Metal industries and Others
judgment,
2
the award is reviewable. He submitted that the
first respondent did not apply her mind, she failed to give reasons
for her findings
and did not engage in an exercise of considering
the probabilities. He submitted that the first respondent determined
the issue
of suspension when it was not before her. She ignored the
relevant evidence of Nkosi. In determining the issue of the
performance
bonus, she failed to consider that there was no evidence
with regard to the performance of the business. He submitted that in
ordering reinstatement in the face of a letter appearing on page 55
of the bundles amounts to an irregularity.
Goosen on the other hand argued that the “devil
is in the detail”. He submitted that the allegations of
incompatibility
lacked details. It was about unknown customers and
fellow employees. He relied on the judgment of
Jabari
v Telkom SA
3
.
He submitted that the emails complained of were not presented at
arbitration in the circumstances the onus lied on the applicant
to
justify the dismissal. There was no evidence to suggest that the
third respondent was given an opportunity to improve and
no minutes
of the alleged meeting-consultations were made available. He
submitted that page 55 was issued after the award and
accordingly
was irrelevant. On the bonus issue, he argued that the issue was
referred and there was direct evidence that the
third respondent was
entitled to a bonus and was not paid. This direct evidence was not
challenged.
I do
not agree with Mosam that the issue of suspension was determined by
the first respondent. If she did, would have awarded
a relief to the
effect that the suspension of the third respondent was unfair. What
she found to be unfair was the fact that
the third respondent was
suspended and no disciplinary action was instituted and or uplifting
of the suspension. There is nothing
wrong with this remark. She also
remarked that the suspension of the salary for two months was
unfair. Regarding the allegation
that the first respondent did not
give reasons, she only made findings, I again cannot agree with
Mosam. In terms of section
138 of the LRA, commissioners are
enjoined to give brief reasons. On allegations of incompatibility,
she clearly states that
no details of the complaint by a customer
were furnished. She found that the allegations were bald and without
substance. The
evidence of Nkosi on the record is vague and of no
assistance. Actually it amounted to inadmissible hearsay evidence.
This is not an award wehre the reviewing court is
left to a guess work. It is clear that the allegations were indeed
bald and
no details of the complaint were given. I am not persuaded
that the award is reviewable within the contemplation of the
CWUSA
judgment.
With
regard to procedural unfairness, it is clear that she rejected the
contention that the meetings were indicative of following
proper
procedure. In her view, no charges were presented to the third
respondent and he was not afforded an opportunity to rebut
the
charges. I cannot fault this.
Regarding
the bonus issue, I agree with Goosen that there was direct evidence
to the effect that the third respondent considered
himself and the
revenue to have performed. The fact that Nkosi only gave his own
interpretation to the bonus clause is of no
moment. I asked Mosam to
direct me in the record where the direct evidence was contradicted.
He instead referred to the evidence
of the R10 million achieved in
2009, where it was alleged that the third respondent was not part of
the team. In my view that
did not challenge the direct evidence. In
the result, I find no reason to fault the finding by the first
respondent that the
applicant did not dispute that the third
respondent was entitled to a performance bonus.
I
turn now to the issue of jurisdiction. The issue was raised by the
applicant’s representative at arbitration. He was correctly
advised by the first respondent to raise it in argument. The parties
were afforded an opportunity to make oral address. Upon
perusal of
the record it is apparent that the point was not pursued as advised.
However a jurisdictional point is a point of
law. It can be raised
any time. In terms of section 74 of the Basic Conditions of
Employment Act, a statutory claim can be determined
by an arbitrator
together with a section 191 of the LRA dismissal referral. The claim
for bonus arose from the third respondent’s
contract of
employment. In my view, that claim is justiciable in terms of the
BCEA. I, accordingly, find that it was not only
an unfair labour
practice claim but also a claim arising from a contract of
employment. Therefore, the third respondent had a
choice on how he
claims it. Since it has been claimed together with the unfair
dismissal referral, there was nothing to prevent
the first
respondent to determine it. I, therefore, find that the first
respondent had powers to determine the contractual claim
for bonus.
I turn now to the appropriateness of the relief
of reinstatement. I agree with Goosen that the events that allegedly
prevented
the first respondent to order a primary relief occurred
after the award. Reinstatement is a primary relief and can only be
excluded
if the circumstances in the LRA are met. I cannot agree
with
Mosam that events after the award are
relevant as a consideration. To that extent, I see no reasons why
this court should interfere
with the relief in the circumstances
where the exclusions do not find application.
The LAC recently quoted with approval the
decision of this court in
Southern Sun
Hotel Interest (Pty) Ltd v CCMA
and
Others
4
in the judgment of
Herholdt
v Nedbank
Limited
.
In essence, the LAC approved the sentiment that if a commissioner
fails to take into account material evidence or have regard
to
irrelevant evidence commits misconduct and or gross irregularity. I
find that the first respondent to have not done that in
the light of
the above evaluation.
In
the premises, I am not persuaded that the award is reviewable.
Order
In
the results, I make the following order:
The
application for review is dismissed with costs.
_______________________
Moshoana,AJ
Acting
Judge of the Labour Court of South
Africa
Appearances:
For the Applicant:
Advocate
A Mosam
Instructed by
: M M Baloyi Attorneys, Johannesburg
For the
Third Respondent: Advocate C Goosen
Instructed by: Horn Attorneys
, Centurion
1
(2007)
28 ILJ 2405 (CC)
.
2
(2008)
29 ILJ 2461 (CC)
.
3
(
2006)
ILJ 1854 (LC.
4
(2009)
11 BLLR 1128
(LC)