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[2014] ZALCJHB 143
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Continental Adonisers CC v Levy NO and Others (JR1684/2010) [2014] ZALCJHB 143 (29 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
CASE
NO JR 1684/2010
In
the matter between:
CONTINENTAL
ADONISERS
CC APPLICANT
and
DG
LEVY
NO
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
AR MELATO & 13
OTHERS 3
RD
AND FURTHER RESPONDENTS
Date
heard: 25 April 2014
Judgment
delivered: 29 April 2014
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a ruling made by the
third respondent (the commissioner). In his ruling, the
commissioner
held that the third and further respondents had been unfairly
dismissed and awarded them compensation totaling R163
431.
[2]
The commissioner made his award on the basis of a finding that the
employees had been dismissed, and that their dismissal was
unfair. At
the arbitration hearing, the applicant contended that the employees
had been engaged on fixed term contracts which expired
on 15 December
2006, and that it had advised the employees timeously that the
contracts would end on that date. The basis on which
the commissioner
appears to have decided in favour of the employees is that certain of
them had a reasonable expectation of renewal
of their contracts. The
applicant seeks to review and set aside the award on the basis first
that this was not the issue that the
commissioner was called upon to
decide nor was it the case put to any of the applicant’s
witnesses and secondly, that even
if the commissioner was empowered
to decide that certain of the employees harboured a reasonable
expectation of renewal of his
contract, that there was no evidence
before the commissioner to sustain that conclusion.
[3]
The commissioner (correctly) set out the issue in dispute in
paragraph 2 of his award. He was to decide whether the employees
had
been engaged on what were termed limited duration contracts. The case
of the employees, as articulated by the witness who gave
evidence on
their behalf, was that he had signed no such contract and that he was
a permanent employee, dismissed in December 2006.
[3]
As I have indicated, the commissioner found that the employees had
been employed on limited duration contracts. He went on to
find that
some of the employees had reasonable expectations of renewal of their
contracts, distinguishing them from others on the
basis of initial
dates of engagement. It was never the case during the proceedings
under review that the employees had any expectation
of renewal of a
limited duration contract. Mr. Ramahuma, the witness who gave
evidence on the employees’ behalf, denied any
knowledge of
having signed a limited duration contract. His case was that he had
been engaged on a permanent, indefinite basis.
The commissioner found
that Ramahuma was a dishonest witness, and that he had denied signing
a contract until admonished by his
representative to tell the truth.
Clearly, as the commissioner held, all of the employees had been
engaged on fixed term contracts
that expired on 15 December. On that
basis, the dispute ought properly to have been determined in favour
of the applicant. By extending
the enquiry
mero motu
into the
existence of any reasonable expectation of the part of all or some of
the employees without that issue ever having been
placed in dispute,
and making a decision in the absence of any evidence of any
subjective expectation by any of the employees of
any expectation of
renewal that was objectively reasonable, in my view, the commissioner
committed a gross irregularity. The existence
of a subjective
expectation of renewal is a matter that ought necessarily to have
been canvassed with each employee. The employees
were represented by
a seasoned trade unionist, who chose to lead the evidence of a single
witness. That evidence made no mention
of any subjective expectation
of renewal of his contract (as I have indicated, the existence of a
fixed term contract was denied
by the witness, who was found by the
commissioner to have lied), nor was there any evidence presented by
the witness on why any
expectation that he may have had was
objectively reasonable.
[4]
In so far as the commissioner based his finding on documentation that
was produced by the applicant’s witness, that documentation
(and the UIF records in particular) disclosed no more than that the
applicant had been requested by the department of labour to
adjust
its records so as to reflect the period for which UIF contributions
had been made. This manifestly does not establish any
expectation of
renewal of any fixed term contract on the part of any of the
employees.
[5]
For the above reasons, in my view, the decision reached by the
commissioner is one that no reasonable decision maker could reach
on
the available evidence. His award accordingly stands to be set aside.
[6]
No useful purpose would be served in remitting this matter for
rehearing. The award was made some four years ago, and a record
of
the proceeding is available to the court. I intend therefore to
substitute the commissioner’s decision with a finding
that the
referral of the employees’ unfair dismissal dispute is
dismissed. Mr. Beaton SC, who appeared on behalf of the applicant,
charitably did not pursue the issue of costs.
I
make the following order:
1. The
arbitration award made by the first respondent on 24 May 2010 under
case number MEGA 14663 is reviewed
and set aside.
2. The
award is substituted by the following:
‘
The applicants’
claim of unfair dismissal is dismissed.’
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicant: Adv. R Beaton SC, instructed by De Villiers & Du
Plessis Attorneys
The
third and further respondents: In person