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[2013] ZALCJHB 20
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Latinsky & Co (Estate Late Latinsky) v Mooi NO and Others (JR17/12) [2013] ZALCJHB 20; (2013) 34 ILJ 2613 (LC) (18 February 2013)
5
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE NO:
JR
17/12
In the matter between:
LATINSKY&
CO (ESTATE LATE JE LATINSKY)
..................................................
APPLICANT
and
F
MOOI
NO
....................................................................................................
1
ST
RESPONDENT
COMMISSIONER
FOR CONCILIATION
MEDIATION
AND ARBITRATION
................................................................
2
ND
RESPONDENT
BB
KOUMARAS
...........................................................................................
3
RD
RESPONDENT
Heard: 15 February
2013
Judgment delivered: 18
February 2013
JUDGMENT
VAN NIEKERK J
[1]
This is an unopposed application to review and set aside a
jurisdictional ruling made by the first respondent (the
commissioner).
The ruling was made in the context of a dispute
between the third respondent and the applicant in which the third
respondent contended
that she had been unfairly retrenched. At the
arbitration hearing, the applicant in the present proceedings took
the point
that
the CCMA had no jurisdiction to arbitrate,
since the dispute was not one that fell within the ambit of s
191(12). That section
is often (but inaccurately) said to confer
jurisdiction on the CCMA to arbitrate retrenchment disputes involving
a single employee,
at the election of the employee. The first
respondent made the following ruling:
’
21.
The applicant was the sole person retrenched. The CCMA has
jurisdiction to arbitrate. I rule that a new date be set for
arbitration
in front of another commissioner as commissioner Mooi has
too much insight into this case.
’
[2]
The applicant seeks to set aside the ruling on the basis that it
isincorrect. The material facts relevant to the ruling are
recorded
in the founding affidavit in the present proceedings, and I do not
intend to repeat them here. For present purposes, it
suffices to say
that the applicant company was owned by its sole proprietor, the late
Mr JE Latinsky. The company employed two
employees, the third
respondent and aMs Lara Hopwood. When MrLatinsky passed away, his
widow (who is also the executor of his estate)
decided to close the
business. In her affidavit filed in support of the point in
limine
,
MrsLatinsky states that certain of the late Mr. Latinsky’sclients
requested that Mr.IlanKoral, a chartered accountant with
whom he
hadshared premises, assume responsibility for their matters. She
states further that all files in respect of those clients
were handed
to Koral. It is clear from the terms of a letter given to Hopwood on
23 September 2010 that she agreed to commence
working for Koral on 1
October 2010. Indeed, attached to the letter was proof of payment of
Hopwood’s final salary from JE
Latinsky& Co and in the
final paragraph, MrsLatinsky expressed the wish that Hopwood would
‘
be happy with the new setup as you start working for
IlanKoral
…’.
[3]
It is equally clear from the papers before the commissioner that the
third respondent’s circumstances were not infused
by the same
degree of cordiality. On 27 September 2010, a letter was issued to
the third respondent advising her that the company
would be closing
down and that her services would be terminated with effect from 30
September 2010. The letter further stated that
alternative employment
had been procured for the third respondent, and that she was required
to take up that employment with effect
from 1 October 2010. The third
respondent rejected the alternative on offer. The applicant’s
response was to embark on a
retrenchment procedure, which it invoked
by issuing a notice of intention to retrench in terms of s 189 (3)
and scheduling a date
and time for a first consultation meeting. A
consultation meeting was held in 13 October 2010, where the third
respondent was represented
by her legal adviser. The upshot of the
meeting was that the applicant undertook to secure a written offer of
alternative employment,
which it did. That offer was later refused,
and the applicant then decided to terminate the third respondent's
employment. A notice
of termination of employment was sent to the
third respondent on 28 October 2010, recording in clear terms that
the reason for
dismissal was one related to the applicant’s
operational requirements, and denying severance pay on the basis that
an offer
of reasonable alternative employment had been rejected.
[4]
The third respondent disputed the fairness of her dismissal and
referred the matter to the CCMA. The applicant, as I have indicated,
took the point that the CCMA had no jurisdiction to arbitrate the
dispute since in terms of the Act, the third respondent was required
to refer the dispute to this court.
[5]
The commissioner’s conclusion that the CCMA had jurisdiction to
arbitrate the dispute rests on two premises. The first
is that it was
not clear that Hopwood had been retrenched – the letter
addressed to her on 23 September made no mention of
retrenchment or
any reasons relating to the applicant's operational requirements.
Secondly, the commissioner reasoned, even if
Hopwood had been
retrenched, there was no multiple retrenchment More particularly, as
at 1 October, Hopwood was no longer an employee
of the applicant and
was obviously not employed by the applicant at the time that a
consultation process was initiated. At that
point, the third
respondent was the applicant’s sole employee. In paragraph [16]
of the award, the commissioner concludes
as follows:
‘
As
a separate consultation\termination process in respect of the
applicant only commenced about two weeks after Ms Hopwood had already
left the company, the applicant was at that stage the sole employee
and they could not have been a multiple retrenchment. Furthermore,
as
the applicant was terminated on 28 October 2010 and Miss Hopwood had
been terminated by the 1 October 2010. The dates of dismissal
were
different which negates the contention of a multiple retrenchment
."
[6]
The basis for the point in
limine
, as I have indicated, is
that for the purposes of s 191 of the Act, more than one employee was
dismissed by reason of the applicant’s
operational
requirements, and that the matter therefore was required to be
referred to this court for adjudication.
[7] Section 191 (12)
reads as follows:
‘
(12)
If an employee is dismissed by reason of the employer's operational
requirements following a consultation procedure in terms
of section
189 that applied to that employee only, the employee may elect to
refer the dispute either to arbitration or to the
Labour Court.’
[8]
I turn next to the grounds for review. The grounds that are reflected
in the founding affidavit are based on the assumption
that the
application is a so-called reasonableness review and in particular,
that the commissioner failed properly to assess the
evidence before
him, and came to a decision to which no reasonable decision-maker
could come. In particular, it is contended that
the reason for what
amounted to the termination of employmentarising from the same
factual circumstances in respect of both the
third respondent and
Hopwood was the applicant’s operational requirements. That
being so, the CCMA had no jurisdiction to
entertain an unfair
dismissal dispute referred to it by the third respondent and the
commissioner’s decision to the contrary
amounted to a
reviewable irregularity.
[9]
In my view, there is no merit in the applicant’s submissions.
First, the test for review in an application such as the
present is
not the reasonableness or otherwise of the commissioner's decision.
Rather, the court is to determine whether objectively
speaking there
were, at the relevant time, facts which served to confer jurisdiction
on the CCMA. This is a factual enquiry and
this court must decide on
this basis whether or not the commissioner was correct. In other
words, the reasonableness or otherwise
of the commissioner's ruling
is not relevant.
[10]
This much the applicant’s attorney appears to have
recognisedand conceded in the heads of argument filed prior to the
proceedings. But the heads do not reflect the case made out in the
affidavits, by which the applicant remains bound. For this reason
alone, the application stands to be dismissed.
[11]
In any event, and more fundamentally, I am not satisfied that the
commissioner was incorrect in coming to the conclusion that
he did.
On the material before the commissioner, it is not at all clear that
Hopwood was dismissed for a reason relating to the
applicant’s
operational requirements. On the face of it, alternative employment
had been secured for her and she accepted
that employment and the
salary that she was owed in full and final settlement of any claim
against the applicant. While the applicant’s
operational
requirements no doubt gave rise to Hopwood’s termination of
employment, there is a compelling case to be made
that by accepting
the offer of alternative employment on the terms she did, there was
no dismissal at the initiative of the applicant,
and that her
employment terminated by mutual agreement. In other words, what the
applicant assumes in the present application,
mistakenly in my view,
is that Hopwood was dismissed in the sense that the word ‘dismissal’
is defined in s 186(1)
of the LRA, and that the reason for her
dismissal was one related to the applicant’s operational
requirements.
[12]
The wording of s 191 (12) admits a considerable degree of ambiguity.
But the one thing that does not provide, contrary to what
the
applicant contends, is that the jurisdictional moment it creates lies
in the reason for dismissal. The reason for dismissal
is a given -
what is relevant is the existence or otherwise of a consultation
procedure initiated in respect of a single employee.
In the present
instance, on the facts, the applicant initiated a consultation
processonly in respect of the third respondent. It
follows that the
CCMA has jurisdiction to entertain the third respondent’s
claim. The application for review accordingly
stands to be dismissed.
[13]
Since the application is unopposed, the issue of costs does not
arise. Had the matter been opposed, I may have been inclined
toward
an order for costs on a punitive scale. This dispute concerns the
dismissal of an individual employee, more than two years
ago. Had the
applicant not resorted to technical, point-taking approach that it
did, this matter would have been finalised a long
time ago. Instead,
the arbitration hearing, to which the third respondent is entitled,
has yet to commence. This is entirely the
fault of the applicant’s
legal representatives, whose conduct in this matter merits censure.
For the above reasons, I
make the following order:
The application is
dismissed.
The matter is remitted
to the second respondent for an arbitration hearing before a
commissioner other than the first respondent.
Andre van Niekerk
Judge of theLabour Court
Appearance
For the applicant: Ms S
Morgan, Snyman Attorneys