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[2013] ZALCPE 5
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Botha v Commission for Conciliation Mediation and Arbitration and Others (P160/11) [2013] ZALCPE 5; [2013] 8 BLLR 756 (LC); (2013) 34 ILJ 2212 (LC) (22 February 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Reportable
Case no: P160/11
In the matter between:
MELINDA BOTHA
Applicant
and
CCMA
First Respondent
FEIZAL FATAAR N.O
Second Respondent
NATIONAL HEALTH
LABORATORY SERVICES
Third Respondent
Heard
:
19
February 2013
Delivered
:
22
February 2013
Summary:
Review
of an award in instances where the Arbitrator found that the
applicant was not dismissed exercised jurisdiction and reinstated
her
without back pay.
judgment
MOSHOANA, AJ
Introduction
This is an application
to review and set aside an award issued by the second respondent
under the auspices of the first respondent.
The strange feature of
this application is that the award issued favours the applicant in
the sense that she has been reinstated-a
primary remedy in the LRA.
I could not help it but to inquire from Le Roux appearing on behalf
of the applicant why the applicant
seeks to overturn a favourable
award. Shockingly, I was informed that the applicant wished to have
a ruling that she was dismissed
so that she could benefit from the
available reliefs of reinstatement with back pay and or maximum
compensation. This did not
make sense to me. I thought that
employees approach dispute resolution bodies with one aim-to retain
their jobs. Another strange
feature is that the third respondent-the
employer seeks to defend an award not favourable to it. Nonetheless,
I am seized with
the matter and have to deal with it with all its
features.
The second respondent
concluded the arbitration by stating that the applicant, Melinda
Botha, is reinstated on the same terms
and conditions of employment
not less favourable than those that existed as per the employment
agreement entered into in October
2008. The applicant, Melinda
Botha, must report for duty by no later than 1 March 2011. The
applicant is not entitled to any
back pay from 1 June 2010 until the
date that she returns to work. As pointed out above, the applicant
was rather surprisingly
aggrieved by the award and launched this
application. In turn, the third respondent opposes the application.
Background facts
On 8 October 2008, the
applicant and the third respondent entered into an agreement, in
terms of which, the third respondent appointed
the applicant with
effect from 1 December 2008 until 31 May 2010 as a Medical
Technologist (Student) in the Port Elizabeth Histopathology
Laboratory. She was to report to Mrs Jenny Grewar, Manager,
Laboratory. In terms of clause 1.3 of the said agreement, the third
respondent agreed to appoint the applicant automatically upon
completion of the requirements for registration as a Medical
Technologist with the HPCSA, including the passing of the Board
Examination. The third respondent reserved the right to the
placement
of the applicant.
During March 2010, the
applicant completed the requirements for registration as a Medical
Technologist. Around 29 March 2010 or
thereabout, the third
respondent approached the applicant with an employment agreement
seeking to appoint her as a Medical Technologist
in the Coastal
Region, reporting to Ms Nomaqhiza. The applicant objected to this
appointment on the basis that she and her fiancee
are stationed in
Port Elizabeth and cannot relocate to Mthatha-the Coastal Region. An
attempt was made to persuade the applicant
to accept the offer. On 7
May 2010, the applicant addressed a letter to the third respondent
alluding to the fact that she was
aware that her employment contract
was expiring on 31 May 2010 and her rights were reserved.
Come 31 May 2010, the
applicant had still not accepted the offer of employment by signing
the employment agreement. Owing to that,
Grewar approached the
applicant with a form headed 'Termination Notification'. The form
was already completed, with the reason
for termination as 'End of
Contract'. The last working day was indicated on the form as 31 May
2010. The applicant refused to
sign the form. On the same day, the
applicant through T D Potgieter Attorneys, demanded her UI19 form
and recorded that she was
instructed to hand in her access card. It
is apparent that around September 2010, the applicant found
employment. It is also
apparent that the third respondent sought to
claim some money from the applicant for failing to honour the
agreement. Until end
of August 2010, there was exchange of letters
from the applicant's attorneys and the third respondent regarding
the claim and
certificate of employment. There were threats of
approaching the Labour Court to enforce rights in terms of the BCEA.
In the
meanwhile, on 22 June 2010, the applicant referred a dispute
of an alleged unfair dismissal to the first respondent. On 21 July
2010, the dispute was enrolled for Con/Arb. The third respondent
objected to Con/Arb. On 21 July 2010, the disputes was conciliated.
On 9 December 2010, the second respondent arbitrated the dispute. On
2 February 2011, she published her award.
Evaluation
At
the commencement of the matter, I enquired from both
representatives, whether the court should treat the review as one of
the so-called jurisdictional reviews, since the question whether the
applicant was dismissed or not is a jurisdictional aspect?
Both
representatives answered in the affirmative. The test to be applied
is whether on the facts objectively viewed, there was
dismissal to a
point that there was jurisdiction.
1
Strictly speaking, this
is a matter where the second respondent accepted jurisdiction.
However, the applicant challenges her finding
that the applicant was
not dismissed. In that regard, she found - given that the respondent
had not dismissed the applicant and
given that the applicant has not
repudiated her contract, it is my view that the contract of
employment is still effective and
binding upon the parties.
Ordinarily, I would have expected the third respondent to be
aggrieved by this finding since its argument
of repudiation was
rejected. It is apparent that this finding was influenced by an
interpretation of clause 1.3 of the agreement
of 8 October 2008. She
also found that reliance on a notification letter was unfounded and
from the facts the applicant was not
dismissed. It is this finding
that the applicant contends is not borne out by the objective facts.
It was on the strength of
that that I inquired as alluded to above.
I have to find that on the objective facts placed before the second
respondent was
she correct in answering the jurisdictional fact that
the applicant was not dismissed.
The objective facts are
that on 31 May 2010, the third respondent asked the applicant to
sign a termination notice. Logically,
the applicant having refused
to sign the termination notice, she was effectively refusing to
terminate her employment. The notice
states- ‘I, the
undersigned hereby tender my termination as employee of your
department’. From her evidence at arbitration,
the applicant
left employment after the termination letter indicated that she
repudiated the agreement. In her own version, the
third respondent
did not overtly mention to her that she was dismissed. Her state of
mind was not that she did not want to carry
on with the third
respondent. A further objective fact is that on 29 March 2010, the
applicant was effectively offered an appointment
as a permanent
employee. The agreement was only signed by the third respondent. The
fact that it was only signed by the third
respondent only does not
render it not binding.
I
cannot find fault in the reasoning that the usage of the phrase
extrapolated above, does not reflect an interpretation that
the
third respondent was terminating her services. I also find that
nowhere in the notification is there a recordal that the
third
respondent was terminating her services. In view of the fact that
the third respondent had wished the applicant to report
at Mthata,
the request to hand in her access card does not suggest that she was
dismissed. If the handing meant dismissal, then
it would have been
incongruent for the third respondent to still wish to have her at
its premises in Mthata. On 3 July 2010,
the third respondent still
called upon the applicant to honour her contract of employment. To
the extent that the non repudiation
finding has not been challenged,
it is unnecessary to entertain any argument of whether repudiation
leads to a dismissal or not.
Le Roux relied heavily on the judgment
of the LAC in
SACWU
v Dyasi
[2001]
BLLR 731
(LAC).
This
case does not apply in this matter. The second respondent was
correct in concluding that since there was no evidence of an
intention not to be bound by the employment agreement, there was no
repudiation. That being so, the third respondent was not
put to any
election. On the facts of this case, there was not repudiation
proper. What obtained was a simple refusal to report
at a particular
station. As correctly pointed out by Ram
appearing
for the third respondent the evidence points that the issue was
place of reporting and nothing else. It was not a case
of some
objectionable terms of an employment contract that will demonstrate
any bad faith on the part of the third respondent.
Although the second
respondent did not disavow jurisdiction, I cannot find that on the
objective facts, the fact that the applicant
was not dismissed-a
jurisdictional fact, is wrong on any basis. That brings me to the
question of costs.
As pointed out above, I
find no logical basis for the applicant to have launched this
application seeking to review what appears
to be a favourable award.
I would have expected the third respondent to have pursued a review
application. In my view, the application
was ill founded and ought
not to have been launched. In my mind, what persuaded the applicant
to launch the application, it seems
she had hoped for a financial
award. It is common cause that since September 2010, she found
another employment. The award having
been handed down in February
2011ordering reinstatement without financial benefit was of no value
to her it seems. In terms of
section 162 of the LRA, costs should be
awarded on the basis of the law and fairness. In law a successful
party ought to be reimbursed.
The third respondent having being
successful in opposing the application, I see no basis why in law,
it should not be awarded
costs. In fairness, the third respondent
chose to live with what appears to have been a reviewable award.
Having made that difficult
choice in the light of the conduct of the
applicant to refuse to sign a contract simply on the basis of the
location, it will
be unfair to have the third respondent mulcted
with costs of an ill founded application.
Order
In the results, I make
the following order:
The review application
for review is dismissed with costs.
_______________________
Moshoana, AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES
APPLICANT:
Attorney F Le Roux
Of
Francois Le Roux Attorneys, Port Elizabeth.
THIRD RESPONDENT:
ADV R RAM
Instructed
by Cliffe Dekker Hofmeyr Inc.
1
See
in this regard
SAPS v SSBC and Others
[2012] 33 ILJ 453 (LC)
and the authorities cited therein.