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[2013] ZALCJHB 109
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Maranda Mining Co (Pty) Ltd and Another v Commission for Conciliation Mediation and Arbitration and Others (JR2793/11) [2013] ZALCJHB 109 (15 February 2013)
Not Reportable
REPUBLIC OF SOUTH
AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO: JR2793/11
In the matter between:
MARANDA MINING CO
(Pty) Ltd
................................................
1
st
Applicant
CAMDOR RESOURCES (Pty)
Ltd
..............................................
2
nd
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
...........................................
1
st
Respondent
DONALD KGALAKE
NKADIMENG
.......................................
2
nd
Respondent
SWART,
LEON
........................................................................
3
rd
Respondent
Heard
: 12 February
2013
Delivered
: 15
February 2013
Summary: Review:
application dismissed.
EX TEMPORE
judgment
GUSH, J
:
This matter involves an
application by the applicants to to review and set aside the award
of the second respondent
1
,
following the
arbitration of a dispute referred by third respondent to the 1
st
respondent, regarding
the third respondent’s alleged dismissal. At the arbitration
the arbitrator was required to decide:
a. Which one of the two
applicants was the third respondent’s employer;
b. Whether the third
respondent was dismissed;
c. If so whether the
dismissal was substantively and procedurally fair; and
d. the appropriate remedy
should it be found that the dismissal was unfair.
The 2
nd
respondent found that the third respondent was employed by the 2
nd
respondent; that he had been dismissed; that the dismissal was both
substantively and procedurally unfair and awarded the third
respondent compensation in an amount of R150,000 the equivalent of
three months’ salary.
At the arbitration the
applicants denied that the 3
rd
respondent had been
dismissed.
The third respondent was
employed by the second applicant and had been seconded to the first
applicant. During the course of his
employment, he became involved
in an altercation with a Mr Bryant, who was a Director of both first
and second applicants. According
to the 3
rd
respondent,
the altercation culminated in Mr Bryant dismissing the 3
rd
respondent. The third respondent referred a dispute to the first
respondent, who in turn enrolled the matter to be arbitrated
by the
second respondent.
At the arbitration, both
the first and second applicants were represented by their attorney,
Mr Vorster. As the applicants had
denied that the third respondent
had been dismissed, the third respondent commenced by giving
evidence in order to discharge
the onus that he had been dismissed
as is required by section 192 of the LRA.
During his evidence, the
third respondent described the circumstances surrounding his
dismissal
inter alia
as follows:
So one word let to another and I said
to Michael Briant that, ‘It appears to me that you do not want
me to work for you any
longer, why do you not pay me a severance
package?’ He said that why he should pay a severance package,
why I not just resign.
And I said on what grounds, and he said he
already sought legal advice and that because I could not give him the
figures he had
asked for, he could dismiss me on those grounds
because I was a General Manager, I was a senior man in the operation.
So I said,
‘In that case, I will also seek legal advice’.
And he said, ‘Oh, so you want to make it legal? In that case,
you no longer have a job. I am sorry it has come to this’.
Despite Mr Bryant being
present at the arbitration, the only evidence adduced by the
applicants in response to the evidence of
the third respondent
regarding his dismissal was that of a Mr Smit who was unable to take
the issue of the 3
rd
respondent’s dismissal by Mr
Bryant any further.
It appears from the
record of the arbitration that the applicant’s case was simply
based on a denial that Bryant had dismissed
the third respondent.
The applicants’ averred that it was simply that Bryant had
terminated the 3
rd
respondent’s secondment to the
first applicant, and that the 3
rd
respondent had remained
an employee of the second applicant. It is equally clear from the
record that the applicant did not call
Bryant to give evidence to
gainsay the 3
rd
respondent’s evidence that the
interchange between Bryant and the third respondent had culminated
in the termination of
his employment. The applicant’s lead no
evidence to show that Bryant had merely terminated the secondment
and that the
3
rd
respondent’s employment remained
intact.
Unsurprisingly and
justifiably and bearing in mind that Bryant was present at the
arbitration and did not give evidence, the second
respondent after
having analysed the evidence concluded in his award:
a. Firstly that it was
common cause that the third respondent was employed by the second
applicant;
b. Secondly that he had
reported to Bryant, who was a Director of both companies;
c. Thirdly that he was
satisfied on the evidence regarding Bryant’s “utterances
and written communications” that
it had been proved that the
third respondent had been dismissed; and
d. Finally that the 3
rd
respondent was entitled to compensation which he awarded.
The 2
nd
respondent in the award states:
In my view the second [applicant’s]
attorney was unable to discredit the [3
rd
respondent
during cross-examination, and the evidence of the 3
rd
respondent on whether or not he was dismissed stands alone and
uncontradicted by any other evidence. My finding is, therefore,
that
the applicant has succeeded in proving on a balance of probabilities
that he was dismissed as required by section 192(1) of
the Act
Somewhat startlingly the
applicants led no evidence regarrding the fairness of the dismissal
should the 2
nd
respondent find that the 3
rd
respondent had in fact been dismissed. The 2
nd
respondent
specifically records that the attorney representing the applicants
at the arbitration simply argued that if it was
in fact found that
the third respondent had been dismissed, the second respondent
should find that the dismissal was fair “in
that it appeared
that the parties mutually agreed to terminate the employment
relationship”.
In the applicants’
initial review application the order sought was for an order that
“the rescission application”
be set aside on the grounds
inter
alia
that despite no evidence to the contrary having
been led, the 2
nd
respondent should have found that
Briant had set about terminating the secondment only.
The applicants
subsequently filed an amended notice of motion in which the
applicants now sought an order reviewing setting aside
and
substituting the 2
nd
respondent’s award. For
reasons which were unexplained, the amended notice of motion is
immediately followed in the indexed
pleadings by an affidavit by the
applicants in support of an application to stay a writ of execution.
It is appropriate at
this stage to comment on the manner in which the pleadings in the
applicants’ application were prepared,
indexed and paginated.
One indexed and paginated bundle was filed that included all
notices, all fax sheets, covers, for some
reason known only to the
applicants themselves, courier address sheets, and blank forms
together making up at least 25% of the
papers.
Most surprisingly,
however was the fact that the transcript of the arbitration hearing
appeared in the bundle immediately after
the amended notice of
motion and before the 3
rd
respondent’s answering
affidavit. For reasons best known to them only the applicants
attorneys included in the bound indexed
and paginated bundle not
only the superfluous documents referred to above the Heads of
Argument as well.
What was not filed
indexed or paginated were the documents handed in at the
arbitration, and it appears as if the applicants had
not deemed to
even file a Rule 7(A) notice or Supplementary Affidavit.
In argument the
applicant submitted that the award fell to be reviewed and set aside
on the grounds that the procedure adopted
by the second respondent
constituted a gross irregularity. This argument was premised on the
misconception that the determination
of the issue pertaining to
whether or not the third respondent had been dismissed was a
preliminary issue relating to the jurisdiction
of the first
respondent to hear the matter. The applicants contended that
accordingly the procedure adopted by the second respondent
should be
found to be reviewable and the award set aside.
This argument was raised
by the applicants’ despite the fact that section 192 of the
Labour Relations Act specifically records
that the onus is on the
employee in a dispute regarding an alleged unfair dismissal to
establish firstly that he was dismissed.
This has nothing whatsoever
to do with jurisdiction but is a fact to proved by an applicant in
discharging the onus. Once an
applicant has established that he was
dismissed the employer is required, by the same section, to prove
that the dismissal was
fair.
The applicants, at
arbitration, relied simply on the averment that Bryant only
terminated the secondment and then never led any
evidence to
establish this despite the applicant’ evidence to the
contrary. In the absence of any evidence to gainsay the
3
rd
respondent’s evidence and establish that the third respondent
was told that it was his only secondment that was being terminated,
and that he was to return to work for the second applicant, in
accordance with the his contract of employment, the conclusion
reached by the second respondent that he had been dismissed is
reasonable and justifiable, taking into account the material placed
before him, and is accordingly not reviewable.
In the light of the
applicants’ approach to the issue and given that there was no
serious attempt to prove that the 3
rd
respondent’s
dismissal was fair, the 2
nd
respondent’s conclusion
that the 3
rd
respondent was unfairly dismissed is also
reasonable, justifiable and therefor not reviewable.
[11] The record of the
arbitration and second respondent’s award demonstrates not only
that the second respondent took into
account all the evidence
adduced, but that his analysis of the evidence and the conclusions he
drew in coming to his award eminently
satisfy the test formulated by
the Constitutional Court in the
Sidumo
matter, and the many
decisions that have followed.
[12] The second
respondent’s award is eminently a decision to which a
reasonable decision maker would come based on the evidence
placed
before him.
[13] At the conclusion of
the argument, the applicants’ counsel submitted that should the
Court dismiss the application and
be inclined to make an order for
costs against the applicant, such order should be confined to an
order against the second applicant
only. The third respondent’s
counsel did not take issue with this proposal. I am satisfied that
there is no reason why costs
in this matter should not follow the
result.
[14] In the circumstances
and for the reasons set out above, I am not persuaded that the award
of the second respondent is reviewable,
and accordingly, the
applicants’ application falls to be dismissed. As far as costs
are concerned, there is no reason in
law and fairness why the 2
nd
applicant should not be ordered to pay the 3
rd
respondent’s costs. I therefore make the following order:
a. The first and second
applicants’ application is dismissed.
b. The second applicant
is ordered to pay the third respondent’s costs.
_______________________
D H Gush
Judge
APPEARANCES
APPLICANTS: L Grundlingh
Instructed by Vezi and de
Beer Attorneys
3
rd
RESPONDENT: M van AS
Instructed by Basie Gey
von Pittius
1
The
original award by the 2
nd
respondent was apparently vague
and had been varied by the 2
nd
respondent. The award as
varied is the subject of the review.