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[2013] ZALCJHB 49
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Trudon (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2621/10) [2013] ZALCJHB 49 (22 March 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not
Reportable
Not o
f interest to other judges
case no:
JR 2621/10
In the matter between:
TRUDON (PTY) LTD
Applicant
and
THE CCMA
First Respondent
MOTSOENENG
N.O
Second Respondent
JANENE DE BEER
Third Respondent
Heard
:
04
March
2013
Delivered
:
22
March 2013
Summary:
Review of an award on the
alleged basis that the commissioner ignored relevant material placed
before her.
JUDGMENT
MOSHOANA,
AJ
Introduction
This
is an application to review and set aside an
award issued by the second respondent acting under the auspices of
the first respondent.
The
second respondent found that the third
respondent was unfairly demoted and that the applicant committed an
unfair labour practice
in relation to promotion. She ordered the
applicant to reverse the demotion and pay the third respondent an
equivalent of one-month
salary as compensation. In relation to
promotion she ordered the applicant to promote the third respondent
to a position of Corporate
Communications Manager with effect from
16 September 2010 and to pay her benefits and remuneration
applicable to that position.
Aggrieved by the award, the applicant
launched the present application. The applicant’s counsel told
the court that the
portion of the award dealing with demotion is not
under attack. The attack was directed to the promotion finding
Background facts
During
1996, third respondent commenced employment with the applicant as a
Relations Manager. In 2007, after consultation between
her line
manager and an entity called Hay Group, her position was re-graded
to one of Stakeholder Relations Manager. Around August
2010, she was
demoted to an Events Coordinator.
On
10 April 2010, whilst at an athletic event in Durban, the third
respondent was offered a promotional position and she accepted
it.
Subsequently, she learned that the position she was offered was
advertised and prospective candidates are being interviewed,
she
lodged a grievance. The grievance could not be resolved internally;
she referred a dispute to the first respondent.
The
second respondent was appointed to resolve the dispute through
arbitration. She resolved the dispute on the terms set out
above.
Aggrieved by the award, the applicant launched this application.
Evaluation
In
its founding affidavit, the applicant raised as grounds for review
that there was wrong conclusions as the third respondent
failed to
discharge her onus, the award is unreasonable for failing to
consider certain aspects in relation to demotion, failed
to take
into account the evidence that the third respondent was made an
offer for the position, the determination amounts to
gross
irregularity and that an appropriate relief should have been one of
compensation. In its supplementary affidavit, the applicant
raised
the issue of lack of jurisdiction in that the matter is a
contractual one.
As
required in this court, the applicants filed heads of argument. In
its heads, it confined itself to the issue of lack of jurisdiction,
reasonable expectation of promotion, failure to apply mind to emails
dispelling the expectation to promote, lack of authority
to appoint
and that the claim was extinguished by the conduct of the third
respondent applying. In court, Advocate Mnyatheli,
appearing for the
applicant sought to expand the grounds and submissions by arguing
that the promotion contravened the applicant’s
policy. The
second respondent ought to have taken the policy into account, so
the argument went.
The
test for review has been reduced to whether the decision of an
arbitrator falls within the bounds of reasonableness. This
being a
review, the rightness or wrongness of the award does not feature.
The attack on jurisdiction is misplaced. The issue
whether a
contract was concluded is not the dispute but an issue in a dispute.
What determines the jurisdiction is the dispute
itself not an issue
in a dispute. In my view the attack on jurisdiction cannot be
upheld.
Regarding
the question of reasonable expectation, I agree with a submission
that such generates a procedural right. However the
dispute was
about an unfair conduct on the part of the applicant in relation to
promotion. Therefore denial of a procedural right
amounts to an
unfair conduct. I also agree that the expectation does not create a
contractual right. It is clear from the award
of the second
respondent that she considered the giving of a reasonable
expectation is a conduct that gave rise to an unfair
labour
practice. In other words, by giving a reasonable expectation, the
applicant conducted itself in an unfair manner in the
circumstances
where the third respondent is not appointed as promised. I cannot
fault this conclusion. The section refers to
any unfair act or
omission. The operative word there being unfair. The determination
of fairness is largely left to a person
like the second respondent.
Any act or omission as long as it evinces unfairness in relation to
promotion qualifies to sustain
a claim of unfair labour practice.
The
challenge on the remedy issue is equally misplaced. In terms of
section 193 (4), an arbitrator determines the matter on any
terms he
or she deems reasonable. The power of the reviewing court to
interfere is circumscribed. Regarding the extinguishing
of a claim,
I find no basis in law to conclude that the third respondent did. It
is not apparent on the record that she accepted
that she applied for
the position. On the contrary she disputed a version that she was
advised to apply by Smith, who ironically
failed to testify to
bolster the version already denied.
On
the issue of the policy, it is common cause that the applicant
placed no evidence before the second respondent with regard
to the
policy. There is no evidence whether it was applicable at the time.
Uncontested evidence of the third respondent was that
there was a
practice of promoting without advertising. Counsel for the applicant
argued that the fact that the policy formed
part of the bundles was
sufficient for the second respondent to take it into account. I
cannot agree. If the second respondent
did that, that on its own is
an irregularity. It was incumbent on the applicant to lead evidence
suggesting the prohibition in
the policy.
It
is inappropriate for a party to not raise an issue at arbitration
and latter complain that an arbitrator has ignored a fact.
How can
an arbitrator ignore a fact unknown to him? Bundle of documents are
prepared for convenience of the parties when the
matter is being
arbitrated. A material is properly placed before an arbitrator if
reference is made thereto in evidence. To simply
lump an arbitrator
with documents with a hope that he or she will navigate through them
and find a material that supports a party’s
case is more
leaving things to chance. If an arbitrator’s attention is not
directed to that document, then the material
is not properly placed
before him or her.
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
M Mnyatheli
Instructed by
: Makaula Zilwa Inc, Sandton
For the
Third Respondent: Attorney J D Crawford of Crawford and Associates,
Parkwood