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[2015] ZALCJHB 62
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Workforce Group v Commission for Conciliation, Mediation and Arbitration and Others (JR3088/11) [2015] ZALCJHB 62 (27 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OFSOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR3088/11
DATE:
27 FEBRUARY 2015
Reportable
In
the matter between:
THE
WORKFORCE
GROUP
.................................................................................................
Applicant
And
COMMISION
FOR CONCILATION
MEDITION
AND
ABITRATION
...............................................................................
First
Respondent
COMMISIONER
MS REFAEE
N.O
......................................................................
Second
Respondent
MAKHOSAZANE
KHAMBULE AND & 7
OTHERS
...........................................
Third
Respondent
HEARD:
10 July 2014
DELIVERED:
27 February 2015
Summary:
the commissioner ignoring key material facts; mentioning issues in
passing without evaluating them; failure to provide
reasons for the
decision; the award reviewable.
JUDGEMENT
RALEFATANE,
AJ
Introduction
[1]
This
is a review application in terms of section 145 of the LRA
[1]
to set aside the arbitration award issued by the Second Respondent
under the auspices of the First Respondent, case number
GAJB4729-11issued
on 26 October 2011.
Background
Details
[2]
The
Applicant conducts the business of a staffing solutions provider
that, inter alia, includes the business of a temporary employment
service as envisaged in section 198 of the Labour Relation Act, (“the
LRA”) and section 82 of the Basic Conditions
of Employment
Act.
[2]
[3]
The bulk of the Applicant’s services are that of temporary
employment service. The Applicant conducts such business in
all
sectors and industries and place employees (both permanent and
temporary) in all disciplines within all industries and section
of
the market
[4]
The Applicant employs in the region of 1600 employees who are placed
at the sites of various clients countrywide
[5]
The Applicant from time to time enters into agreements with these
clients and provides them with their specific labour requirements
as
they may require.
[6]
From 2004 to approximately 2005, the Applicant had an agreement with
Johannesburg Water to supply them with their employment
needs. This
service was interrupted when another temporary employment service was
contracted with and continued with in 2009.
[7]
The Third and further Respondents were all employed by the Applicant
in terms of contract specific contracts of Employment.
The Contracts
were signed on 17 May 2010 and were to endure until the completion of
the project.
[8]
The Third and further Respondent were placed at the premises of
Johannesburg Water as meter readers earning R1000.00 per fortnight
in
terms of these specific contracts of employment.
[9]
These employment contracts entered into between the Applicant and the
Third and further Respondent specifically made provision
for the
contract to terminate automatically should the client terminate the
underlying agreement between it and the Applicant.
[10]
The Third and further Respondents all signed induction documents
explaining the nature of the bossiness of the Applicant as
well as
the work that the Respondent would be conducting for the client, in
this instance being Johannesburg Water.
[11]
On or about 27 December 2010, Johannesburg Water advised the
Applicant that it was terminating the contract with the Applicant
and
no longer required its services. The Applicant thereupon advised the
Third and further Respondents that their contract of employment
had
automatically terminated as a result thereof.
[12]
The termination dates (for purposes of the last payments) were on 6,
21 and 23 January 2011 and 11 March 2011.
[13]
For instance, MW Khambule signed a specific contract of employment on
17 May 2010 which finished on the completion of the contract
on 6
January 2011.
[14]
On or about 23 February 2011 the Sixth, Seventh and Tenth Respondent
referred a complaint of Unfair Dismissal to the first
respondent.
[15]
The remainder of the Applicant referred their matter to the First
Respondent by way of making an appearance at the conciliation
proceeding on 22 March 2011 and being joined as Applicant in the
referral to the First Respondent.
[16]
The matter thereupon was referred to arbitration.
[17]
The matter comes before the Second Respondent on 12 October 2011.
After hearing evidence, the Second Respondent made an arbitration
award on 26 October 2011. A copy was sent to all of the parties on
the same date.
Grounds for
Review
[18]
The Award, as given by the Second Respondent, is only three pages
long and is severely lacking in a number of respect in as
much as it
is not a fair reflection of the evidence given.
[19]
The Second Respondent misdirected himself with regards to the facts
upon which he based certain conclusion and other respects
misdirected
himself with regard to the conclusions which he reached in as much as
it was not supported by the evidence given.
[20]
The Second Respondent failed to:
a.
explain to the parties how the proceedings would be conducted,
b.
afford the representative of the Applicant an opportunity to canvass
the issue of the date of the alleged dismissal or the alleged
employment dates, when it became clear that those dates were in
dispute, which was crucial to a proper adjudication of the matter,
c.
The Applicant themselves indicated that there had not been a
dismissal. No page 24 of the transcribed record the representative
of
the Applicants, Mr. Sishuba acknowledges that there had not been a
dismissal and that “we are still employed by Workforce”
[21]
The Second Respondent gave an award which was not practical or
possible for the Applicant to adhere or comply with in as much
as it
has no control over the premises of a client and has no authority to
insist that it re-employs employees of the Applicant
on it site.
Evaluation of the
point in
limine
Point
in limine
[22]
The Applicant in this matter raised a preliminary point to say that
the Third Respondent
deposed
of the
affidavit to oppose the review and setting aside of the award but
further Respondent did not file confirmatory affidavits
to show that
they also oppose the application. The Applicant prays that this court
should take that only the Third Respondent is
opposing the
application.
[23]
Any party that has interests in the matter and wish to take part must
declare expressly declare that intention, the same applies
to any
person who present himself or herself as representative of the
principal must have the powers as conferred by the principal
or the
person purported to be represented.
[24]
The Third Respondent, in
casu
, should
have had proof that further Respondents have declared their interest
to be part of the process, so because should the costs
be ordered, it
must be clear who is entitled to the costs or to bear the costs. The
mere submission by the Third Respondent that
further Respondents are
part of the process is not sufficient further so because the outcome
of the matter will be binding and
having effect to them whether
positively or negatively. Whoever invokes the legal actions is also
prepared for any outcome. In
the
premise
,
unless there is proof that other Respondents have declared their
interest to participate in this process, it cannot be relied
upon the
Third Respondent’s word for it. There is a list of names
attached in the bundle of documents filed with the Court
but there is
no date or explanation to the effect that it was for this particular
action, therefore, it cannot be assumed that
it was meant to declare
the interest to participate in this action. The Third Respondent will
be regarded as the only party opposing
the application.
Evaluation of the
submissions
[25]
Section 145 of the LRA:
‘
1.
Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to
the
Labour Court for an order setting aside the arbitration award-
(a)
Within six weeks of the date that the award was served on the
applicant, unless the alleged defect involves corruption; or
(b)
if the alleged defect involves corruption, within six weeks of the
date that the applicant discovers the corruption.
(1A)
The Labour Court may on good cause shown condone the late filing of
an application in terms of subsection (1)
(2)
A defect referred to in subsection (1), means-
(a)
That the commissioner-
(i)
Committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
Committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
Exceeded the commissioner's powers; or
(b)
That an award has been improperly obtained.’
[26]
As a
principle established in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others
[3]
the
review
Court must ascertain whether the arbitrator considered the principal
issue before him or her; evaluated the facts presented
at the
hearing, and came to a conclusion which was reasonable to justify the
decisions he or she arrived at
.
[27]
The fact that the award is short, in this case is about three pages,
does not always mean that the commissioner omitted to
deal with the
facts. The commissioner will be guided by the material facts
presented before him or her, and what is crucial is
whether all the
important submissions or evidence have being taken into account. The
opposite also holds true that in some instances
it can happen that
the award is short because indeed it does not contain all the
relevant information. The reviewing Court will
have to assess the
material facts that were presented before the decision-maker in order
to determine whether the important facts
were left out or that the
commissioner has considered all the necessary material facts. It is
not necessary for the commissioner
to state every irrelevant issue in
his or her award but at the same token he or she must not omit to
consider key issues that will
lead to her or she reaching unjust and
unreasonable decision. If a commissioner fails to take into
consideration a fact that he
is bound to consider his or her decision
invariably will be unreasonable.
While
an award may not necessarily manifest all the factors taken into
account by a commissioner it was held in
Corrobrik
(Pty) Ltd v TLA Brick and Tile v CCMA and Others
[4]
it
was stated that:
‘
Some
factors may be of such importance that failure may lead to a
reasonable inference that they were not considered at all.’
It
is also true that the fact that the commissioner has mentioned facts
in the award it does not mean that he or she has evaluated
and
applied the mind to such facts as that will be clear from the award
itself including the reasoning for the decision he or she
has arrived
at.
[28]
In
Gaga v Anglo Platinum Ltd and Others,
[5]
it
was indicated that:
‘
Where
a commissioner fails properly to apply his mind to material facts and
unduly narrows the inquiry by incorrectly construing
the scope of an
applicable rule, he will not fully and fairly determines the case
before him. The ensuing decision inevitably will
be tainted by
dialectical unreasonableness.’
[29]
The Applicant avers that the Second Respondent erred in conceiving
that the Respondents’ commencement date with the Applicant
is
2004 whereas in actual fact the commencement date should have been
recorded as the 17 May 2010. The date of termination is crucial
to
determine especial when compensation is be ordered.
[30]
The Applicant contents that it had a contract with Johannesburg water
between 2004 and 2005 which expired upon which another
contractor won
the tender in 2005. The Applicant won the tender again in 2009 which
will remain without say that between part of
2005 and 2009 there was
no contract in existence. There is no evidence that the employees
were placed at other assignments after
the contract with Johannesburg
water was terminated. It is the Applicant’s submission that
there was interruption of service
after Johannesburg Water has
terminated the contract. If they were placed to other assignments,
then there was no interruption
of service but if they were not then
there was interruption of service which will mean that during the
return of the Applicant
to Johannesburg water in 2010, was a new
assignment for those employees. It is not always the case that when
the contract between
the labour broker and it client terminates
automatically the contracts between the said labour broker and the
employees will terminate
unless there is a provision in the contract
specifying the position upon termination. In the present matter, the
employment relationship
between the Applicant and the Respondent was
a crisp issue to deal with. The commissioner is found having failed
to interrogate
this issue therefore committed irregularity.
[31]
The Applicant state that the commissioner failed to comprehensively
deal with the nature of the employment relationship and
ignored to
pay attention to the contract specific contract of employment.
[32]
The commissioner did not bother himself to deal with nature of the
employment relationship which was very crucial. This kind
of
employment relationship is different from other employment
relationship because employees in this case of labour broker are
the
employees of that labour broker not of its clients. It can happen
through that a labour broker hires employees on behalf of
its clients
in which event those employees become employees of client. In casu,
the Respondents remained employees of the Applicant
but assigned to
render services to Johannesburg water, the Applicant’s client.
[33]
It is cardinally important that the employment contract is taken into
account in order to determine whether the employee was
dismissed. If
the employee was terminated before the expiry of the fixed term
contract, that employee can argue dismissal in the
context of labour
brokerage but if the employee was terminated because the fixed term
contract of employment expired, then the
employer may argue that the
contract terminated.
[34]
In this case, there is no such information that can suggest that the
commissioner considered this issue. The commissioner does
not even
discuss his findings in regard to whether the Respondents were
dismissed. The Applicant avers that the Respondents were
not
dismissed but its client, Johannesburg water, did not require the
services any longer. This statement alone is sufficient to
tell that
the dismissal was contested. The commissioner erred in that he failed
to consider very crucial point which if not considered
may lead to
unreasonable conclusion.
[35]
The Applicant further avers that the automatic termination of a
contractual relationship in terms of that agreement cannot
be equated
with a summary dismissal without notice because the Second Respondent
in this case had a notice.
[36]
This is a common cause issue that the Respondents were given two
weeks’ notice. The commissioner took into cognizance
that the
Respondents were given two weeks’ notice. The Court satisfied
that the commissioner dealt with this issue in his
award. Whether the
notice was sufficient in terms of section 37 read with 38 of the BCEA
is another issue which this Court is not
satisfied that the
commissioner has considered that. It was not an issue that was
submitted before the commissioner but any decision-maker
will be
inquisitive where the law is violated. No employer may offer less
favourable conditions than those provided in the BCEA
and in this
case, it seems that the Applicant offered Respondents two weeks’
notice after they have worked for more than
a year. Section 37 of the
BCEA provides that:
‘
Notice
of termination of employment
(1)
Subject to section 38, a contract of employment terminable at the
instance of a party to the contract may be terminated only
on notice
of not less than-
(a)
One week, if the employee has been employed for more than a month
or less;
(b)
Two weeks, if the employee has been employed for more than six
months but not more than a year;
(c)
Four week, if the employee-
(i)
Has been employed for one year or more; or
(ii)
Is a farm worker or domestic worker who has been employed for more
than six months.
[Sub-s.
(1) submitted by s. 8 of act 11 of 2002.]
(2)
(a)
A collective agreement may not permit a notice period
shorter than that required by subsection (1)
(b)
Despite paragraph
(a
), a collective agreement may permit the
notice period of four weeks require by subsection (1)
(c)
(I)
to be reduced to not less than two weeks.
(3)
No agreement may require or permit an employee to give a period of
notice longer than that required of the employer.
(4)
(a)
Notice of termination of contract of employment must be
given in writing, except when it is given by illiterate employee.
(b)
If an employee who receives notice of termination is not able to
understand it, the notice must be explained orally by, or on behalf
of, the employer to the employee in an official language the employee
reasonably understands.
(5)
Notice of termination of contract of employment given by an employer
must-
(a)
Not be given during any period of leave to which the employee is
entitled in terms of Chapter Three; and
(b)
Not run concurrently with any period of leave to which the
employee is entitled in terms of Chapter Three, except sick leave.
(6)
Nothing in this section affects the right-
(a)
of dismissed employee to dispute the lawfulness or fairness of the
dismissal in terms of Chapter VII of the Labour Relation Act,1995,
or
any other law; and
(b)
Of an employer or an employee to terminate a contract of
employment without notice for any cause recognized by law.’
[37]
The commissioner’s award at paragraph 8, mentioned that the
Respondent contended that they were not given any notice
pay. This
point, having being mentioned, required attention where the
commissioner should have specifically dealt with it and made
determination or directed the Respondents to relevant forum which
include Department of Labour to lodge a claim. The commissioner
failed to apply his mind on this issue.
[38]
The Applicant states that the Second Respondent misconstrued the
nature of the relationship between the parties especially
when he
holds that:
‘
The
Respondent has a workforce of 16000 employees at over 60 branches
nationwide. They cannot willy-nilly dismiss employees and
pretend
that: “a contract specific contract of employment” can
override the fact that all the Applicants were employed
long before
the 17 May 2010 with the Respondent.’
[39]
There is no evidence before the commissioner that the Respondent had
not interrupted employment relationship with the Applicant.
He does
not provide reasons for his conclusion. The Applicant (Respondent at
Arbitration) submitted that it had a contract with
Johannesburg water
in 2004 which terminated in 2005 after which another contractor won
the contract. The Applicant won the contract
again in 2010, which the
submissions were that the Applicant entered into specific contract of
employment with the Respondent on
the 17 May 2010. This piece of
evidence was not discussed in the commissioner’s award there
committed gross irregularity.
[40]
Further ground of review is that the second Respondent gave no
reasons for concluding on respective reinstatement of the third
and
further Respondent. It is not clear whether the Second Respondent
refers to reinstatement to Johannesburg water.
[41]
The Applicant avers that its contract with Johannesburg water has
been terminated owing to its nature as a type of employment
contract
that was dependent on the completion of the project. It is important
that the Second Respondent provides his reasons in
the award as to
how he bothered to analyze the nature of employment relationship
between the parties not excluding the Applicant’s
client,
Johannesburg water because there are two different contracts
depending on each other. That is the contract between the
Applicant
and Johannesburg Water and the contract between the Applicant and the
Respondents. If the commissioner discussed this
issue and reach a
conclusion that is linked to his reasons, then it would not be said
that he misdirected himself. In the award,
there is nothing to show
that the commissioner has considered the important issue pertaining
to the relationship of the parties.
In this Court’s view, it
would be prudent for a decision-maker to provide reasons for any
conclusion reached and that such
reasons are based on the evidence
presented further that there is rational linkage thereof. The
commissioner does not even furnish
reasons for him reaching a
conclusion that the Respondents were unfairly dismissed, failure of
which supports the Applicant’s
submissions is that the
commissioner has misdirected himself. Failure by the commissioner to
consider the principal issues, to
misconceive the facts as presented,
the commissioner basing his or her decision on irrelevant facts or on
issues that were never
canvassed before him or her, is to deny the
parties just and fair process with the likelihood that the conclusion
will be unreasonable
and prejudicial to the parties. In casu, the
commissioner ordered reinstatement coupled with financial
implications. This issue
required the commissioner to carefully
analyze it before arriving at the decision. He ignored the evidence
by the Respondents to
the effect that they were not dismissed
nevertheless, the commissioner without giving reasons for his
decision decided to order
reinstatement.
[42]
In
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and
Others
,
[6]
the
Appellate Division held as thus:
‘
Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgment to established
facts and
circumstances (
NUM v Free State Cons
at 446I). And in doing so
it must have due and proper regard to the objectives sought to be
achieved by the Act…’
[43]
Finally, the Applicant contents that the Second Respondent awarded to
the Third and further Respondent back pay without taking
into
consideration that they had never been permanently employed by the
Applicant. There are no reasons in the award relating to
the
establishment of the dismissal and how did he arrive at the
conclusion that there was unfair dismissal. The reasons of this
Court
on this issue, applies mutatis mutandis to the above discussion
dealing with reinstatement. The review criterion is whether
the
decision is rationally connected with the information before the
commissioner and the reasons for it.
[44]
In
Herholdt v Nedbank Ltd (
Congress
of South African Trade Unions as Amicus Curiae)
[7]
the Court stated as follows:
‘
In
summary, section 145 requires that the outcome of CCMA arbitration
proceeding (as represent by the commissioner’s decision)
must
fall within a band of reasonableness… If a commissioner fails
to take material evidence into account, or has
regard to
evidence that is irrelevant, or the commissioner commits some other
misconduct or a gross irregularity during the proceedings
under
review and party is likely to be prejudiced as a consequence, the
commissioner’s decision is liable to be set aside…’
[45]
In addition to the contention of the Court in Herholdt case, if the
commissioner misconceives the material facts before him
or her, which
will invariably result in unreasonable decision, then it can be
hardly said that a reasonable decision-maker would
have reached such
a decision.
[46]
The idea is not to match the decision of the commissioner with the
decision that the Court would have reached had it been in
the
commissioner’s position but rather whether the commissioner
considered all the key issues before him or her and reached
the
conclusion that is supported by the material facts before him or her.
The reasons or findings that direct the commissioner’s
conclusion is unconceivable and if the commissioner is found to have
committed irregularity in that regard his or her award will
be open
for review.
[47]
In
Care
Phone (Pty) Ltd v Marcus No and Others
[8]
held
that:
‘
It
seems to me that one will never be able to formulate a more specific
test other than, in one way or another asking the question:
is there
a rational objective basic justifying the connection made by the
administrative decision-maker between the material properly
available
to him and the conclusion he or she eventually arrive at? In time
only judicial precedent will be able to give more specific
content to
the broad concept of justiability in the context of the review
provisions in the LRA.’
[48]
In
order to determine whether the decision is unreasonable, the Sidumo
and
Another
v Rustenburg Platinum Mines Ltd and Others
[9]
requires
the review Court to ask the question:
‘
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?’
[49]
Having regard to the reasoning of the commissioner, based on the
material facts before him, it cannot be said that his conclusion
is
one that a reasonable decision-maker could arrive at. Considering all
the information and the circumstances, this Court is unable
to find
that the commissioner’s award resists review. Therefore, it is
hereby set aside.
Conclusion
[50]
In the circumstances, the following order is made:
a)
The Award under case reference No.GAJB4729-11issued by the third
Respondent is hereby set aside
b)
The matter to be referred back to the First Respondent to be heard by
a different commissioner other than the one who heard it
matter.
c)
No costs order.
Ralefatane,AJ
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant: Mr B Hauser of Hunts Attorneys
For
the Third Respondent: No appearance
[1]
Labour Relations Act 66 of 1995
.
[2]
Act
73 of 1997.
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC); [2014] 35
ILJ
943 (LAC) at para 16.
[4]
2000) 8 BUB 738 (LC) at paragraph 7
[5]
[2012]
33
ILJ
329 (LAC);
[2012] 3 BLLR 285
(LAC) at para 44.
[6]
[1996]
SA 577
(A); [1996] 17 ILJ 455 (A) at 476D-F.
[7]
[2012]
33
ILJ
1789 (LAC) at para 25.
[8]
[1998]
11 BLLR 1093
(LAC);(1998) 19
ILJ
1425 (LAC) at para 37.
[9]
[2007] 28
ILJ
2405
(CC);
[2007] 12 BLLR 1097
(CC) at para 110.