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[2014] ZALCJHB 138
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Peega v Commission For Conciliation Mediation And Arbitration and Others (JR677/2012) [2014] ZALCJHB 138 (29 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO. JR677/2012
In
the matter between:
JOHANNES
PEEGA
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First
Respondent
JABULANI
JELMOND MASHABA
N.O.
Second
Respondent
MULTICHOICE
(PTY)
LTD
Third
Respondent
Heard:
26 April 2013
Delivered:
29 April 2014
Summary:
Application for review of arbitration award dismissed.
JUDGMENT
1
This is an application for the review and setting aside of an
arbitration award issued by the second respondent in terms of which
he found that the applicant failed to establish that he was
dismissed.
Background
facts
2.
The
applicant was employed as a call centre agent by the third respondent
in terms of a written fixed term contract of employment
for the
period 1 January 2011 to 31 December 2011 ("the employment
contract"). The applicant was informed by the third
respondent
on 1 December 2011 that the employment contract would come to an end
by the end of that month in accordance with its
terms.
3.
After
the expiry of the employment contract in December 2011, the applicant
referred an unfair dismissal dispute to the CCMA. After
conciliation,
the dispute remained unresolved and the applicant then referred it to
arbitration.
4.
During
the arbitration proceedings, the applicant testified that his
dismissal was unfair because he believed that he was the best
performer. The applicant also alleged that he was promised to be
employed permanently by a person with the name of Rajen. The
applicant further testified that he thought his dismissal was unfair
because his employment contract was terminated without any
valid
reason.
5.
In
cross-examination, he conceded that he did not have any documentation
or other evidence to prove his allegations or to prove
the promises
of permanent employment which he alleged were made to him. He also
conceded that he was not the only person whose
contract terminated by
the effluxion of time.
6.
In
his founding affidavit, in support of his application to review and
set aside the award, the applicant stated that he, together
with a
number of other employees, were recruited as a team but that some of
the employment contracts were allowed to terminate
by the end of its
period whilst others received further contracts. On this point, he
indicated in his founding affidavit that it
was unfair for the third
respondent to re-employ only some of the team and not others. He
claimed that an employer uses a fixed
term contract as a tool to
cause the termination without having to follow a procedure.
7.
As
a ground of review, he states that he, together with the other
members, were hired as a team and that therefore the third respondent
was obliged to consider re-employing them as a team.
Award
8.
In
his award, the second respondent recorded that in terms of section
192(1) of the Labour Relations Act an employee bears the onus
to
establish that there existed a dismissal. He further recorded that
the evidence showed that the applicant was employed on a
fixed term
contract from 1 January 2011 to 31 December 2011 and that he was
informed on 1 December 2011 that the contract will
terminate by the
end of that month.
9.
He
also recorded that the applicant's case was that he was promised to
be employed permanently. However, having considered all the
evidence,
he found on a balance of probabilities that the applicant's fixed
term contract of employment terminated on 31 December
2011. He,
accordingly, found that the applicant failed in his onus to show that
he was dismissed on 31 December 2011. He, therefore,
dismissed the
applicant's referral.
Condonation
application
10.
The
third respondent opposed the application for review and served its
answering affidavit on the applicant on 7 September 2012.
The
answering affidavit was three months and seven days late. The third
respondent filed an application asking for the condonation
of the
late service of its answering affidavit.
11.
As
an explanation for the late service of the answering affidavit, the
third respondent indicated that the Labour Relations Manager
of the
third respondent that previously dealt with labour relations and the
dispute left the third respondent's employment. The
deponent to the
founding affidavit in support of the condonation application, Marwaan
Davids, who is the Employer Relations Manager
of the applicant, took
over the responsibilities of the Labour Relations Manager after she
left.
12.
Davids
indicate that when he took over he tried to ascertain from the former
Labour Relations Manager what had happened in the matter
and did not
receive any co-operation from her. When he tried to ascertain from
the attorneys what was happening in the matter,
they could also not
assist him other than to indicate that they would collect the court
file from the court to ascertain what the
status of the matter was.
13.
The
third respondent discovered that the former Labour Relations Manager
dealt with an Advocate Metu for purposes of its opposition
to the
applicant's review. Despite numerous attempts by the third respondent
to get Advocate Metu to provide it with any documentation
relating to
the matter, none was forthcoming. Advocate Metu was not able to
provide the third respondent with any timeline of how
the matter was
dealt with by the former Labour Relations Manager nor assisted with
any documentation that Advocate Metu may have
prepared in opposition
to the matter. The only documentation that the applicant could find
was that the answering affidavit was
deposed to on 16 July 2012
although it was only eventually served on the applicant on 13
September 2012. The third respondent was
unable to confirm whether
the answering affidavit was served and filed closer to 16 July 2012
as there was no indication that that
was the case.
14.
On
the prospects of success, the third respondent simply stated that it
has good prospects of success for the reasons set out in
the
answering affidavit. Although I find it incredible that a business
which is the size of the third respondent would not have
its
administrative processes in dealing with labour dispute in order and
I am inclined not to accept the explanation provided by
the third
respondent for the delay in filing its answering affidavit, I am
inclined to grant condonation in light of the view I
take on the
prospects of success when I deal with the applicant's review below.
Legal
principles
15.
The
test for review has recently been dealt with in the case of
Herholdt
v Nedbank Limited and Another,
[1]
where the Supreme Court of Appeal stated the test as follows:
‘
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be reached
on the
evidence and other material property before the arbitrator.’
16.
The
applicant has failed to set out any grounds of review in his founding
affidavit that if found to be established would interest
this Court
in reviewing and setting aside the arbitration award. In his founding
affidavit, the applicant only stated that he was
not happy with the
award in his founding affidavit. In addition, he simply states that
because he, together with other employees,
were recruited by the
third respondent as a team, the third respondent had a duty to
re-employ the team. He also commented that
where an employer thinks
that by using a fixed term contract the employer cannot use it to
cause a termination.
17.
I
accept that the applicant completed his founding affidavit himself
and that he was not legally represented during the proceedings
at the
CCMA or at the Labour Court. Notwithstanding the fact that the
applicant was not represented with these proceedings it does
not stop
this Court from enquiring into the case that the applicant is trying
to make in seeking to review and setting aside of
the award. The
Court, therefore, has a discretion to consider whether there is any
merit to interfere with the award, whether pleaded
by an
unrepresented applicant. Having said that, I can find no basis in
fact, or in law, to review and/or set aside the award of
the second
respondent.
18.
In
my view, the award is based on what was before the second respondent.
That is that the applicant's employment terminated by the
effluxion
of time when his fixed term contract came to an end on 31 December
2011. As there was no act on the part of the third
respondent giving
rise to the termination of the contract of employment, the onus was
on the applicant to prove that he was dismissed.
As it is common
cause that his contract came to an end, he failed to prove that his
employment was terminated as a result of an
act on the part of the
third respondent. Although the applicant indicated, in his evidence,
that he was promised further employment,
he failed to provide any
support for that statement. In my view, therefore, the decision of
the second respondent is one that a
reasonable decision-maker could
have reached.
19.
The
applicant's application is dismissed. There is no order as to costs.
_______________
Visagie, AJ
Acting Judge of the
Labour Court
Appearances
For the
Applicant:
In person
For
the Third Respondent: Jean Ewang of Routledge Modise
Attorneys
[1]
2013
(6) SA 224
(SCA)
at para 12.