About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 77
|
|
Master Business Solutions v Van Der Merwe NO and Others (JR3037/12) [2015] ZALCJHB 77 (3 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case Number: JR 3037/12
Not Reportable
DATE: 03 MARCH 2015
In the matter between:
MASTER BUSINESS
SOLUTIONS
.................................................................................
APPLICANT
And
FRANCOIS VAN DER MERWE N.O. (cited
in his capacity as
Arbitrator of the Second
Respondent)
........................................................................................................
FIRST
RESPONDENT
DISPUTE RESOLUTION CENTRE FOR THE
METAL AND ENGINEERING INDUSTRIES BARGAINING
COUNSEL
….....................................................................
SECOND
RESPONDENT
ALFRED
MAKOTI
..........................................................................................
THIRD
RESPONDENT
Heard: 19 December 2014
Delivered: 03 March 2015
JUDGMENT
MALAN AJ
Introduction
[1] This is an application in terms of
section 145 of the Labour Relations Act and/or section 158(1)(g) of
the Act to review and
set aside an arbitration award made by the
First Respondent under case number MEGA 36274 dated 20 November 2012.
[2] In terms of the arbitration award
which is the subject of this application, it was held by the First
Respondent that the Third
Respondent was unfairly dismissed by the
Applicant and the Applicant was ordered to reinstate the Third
Respondent albeit that
back payment of retrospective remuneration was
not ordered.
Background Facts
[3] The main thrust of the review
application is an attack on the finding of the First Respondent that
the Third Respondent was
dismissed at all with the argument on behalf
of the Applicant being that the evidence as it emerges from the
record does not establish
a dismissal.
[4] It appears from the record of
evidence that the Applicant operates as a labour brokerage in which
capacity it had employed the
Third Respondent and for a period of
time provided his services to a client called Improfile.
[5] It is apparent from the record that
the First Respondent clarified at the outset of proceedings that the
Third Respondent claimed
to have been dismissed by the Applicant when
Improfile required that he be taken away from their premises on 5
March 2012. It furthermore
appears from the record that it was common
cause that after 5 March 2012, the Applicant did place the Third
Respondent at other
clients albeit that the Applicant alleged that it
was not on a consistent basis as had been the case at Improfile for a
period
of time.
[6] The evidence from the Applicant’s
witness, which appears not to be challenged effectively in the
proceedings was, however,
to the effect that on occasions when he
tried to place the Third Respondent, the Third Respondent was not
available and furthermore
that the Third Respondent was on occasion
dissatisfied with some of the placements offered to him after his
placement at Improfile
terminated. It however, appears from the
record that the Third Respondent conceded that he did leave at least
one of the placements
because of his dissatisfaction with the type of
environment he was exposed to and the type of work that was available
and that
he was on another occasion unavailable to take up a
placement offered to him.
[7] It appears that the Third
Respondent at all times continued to rely on the his own assessment
that he had been retrenched by
Improfile, the client of the
Applicant, on 5 March 2012 when Improfile without any prior
consultation ceased to use his services.
Analysis of the Arbitration award
[8] It was held by the First Respondent
in terms of the arbitration award that it is probable that the Third
Respondent was retrenched
by the Applicant. At the first bullet point
under paragraph 11 of the award it is stated that clearly the
relationship between
the parties ended sometime after March 2012. The
First Respondent records that the exact date of the termination of
the relationship
is unclear. It is stated by the First Respondent
that the “Respondent” (the Applicant in this application)
is relying
neither on misconduct nor on incapacity in relation to
termination of the relationship. The First Respondent further records
that
according to the Applicant’s own version the contract with
the customer ended in the beginning of March 2012 and he tried
to
place the Third Respondent elsewhere.
[9] The First Respondent then proceeds
to reason that the Third Respondent, not having been placed elsewhere
successfully, would
in these circumstances most probably have been
retrenched.
[10] It appears from the reasoning in
this paragraph and the paragraphs that follow that the First
Respondent fails to clearly distinguish
between the termination of a
placement of an employee by a labour broker and a dismissal of the
same employee by the labour broker.
The Third Respondent’s case
was clearly that he was dismissed on 5 March 2012. The First
Respondent appears to recognise
that the Third Respondent’s
case in regard to his supposed dismissal on 5 March 2012 is not
sustainable insofar as he holds
that the relationship between the
Applicant and the Third Respondent terminated sometime after March
2012 only.
[11] The burden to prove the existence
of a dismissal at all times resided with the Third Respondent. The
First Respondent’s
finding that he cannot determine when a
dismissal in fact occurred after March 2012 therefore sits somewhat
uncomfortably with
his ultimate conclusion that the Third Respondent
had proven that a dismissal had in fact occurred at all.
[12] What is apparent is that the
relationship most certainly could not have ended on 5 March 2012
insofar as the common cause facts
demonstrated that the Applicant
proceeded to place the Third Respondent elsewhere with other clients
after 5 March 2012 and clearly
therefore did not proceed to terminate
the relationship because of the termination of a specific placement
on 5 March 2012. The
efforts of the Third Respondent to prove a
dismissal had taken place on 5 March 2012, therefore, in effect
failed but was nonetheless
rewarded to the extent that the First
Respondent still found that he had been dismissed at some unknown
point thereafter.
[13] It is apparent from a perusal of
the record of the arbitration proceedings that it is not at all clear
whether the failure
of the Applicant to place the Third Respondent
consistently at clients after 5 March 2012 resulted from the
Applicant’s failure
to identify positions or from the Third
Respondent’s dissatisfaction with some of the work which was
available and, on occasion,
the Third Respondent’s
unavailability to take up positions in which the Applicant wished to
place him. The fact that the
Third Respondent felt at liberty to
refuse or not be available to take up placements in any event does
not suggest that the relationship
between the Third Respondent and
the Applicant represented one where the Third Respondent was
necessarily at the back and call
of the Applicant or where the
Applicant was obligated to utilise the Third Respondent’s
services by finding placements for
him on an on-going basis. Even if
the relationship between Applicant and the Third Respondent were to
be construed as having the
peculiar nature of creating non reciprocal
duties in the sense that the Applicant was obligated to find the
Third Respondent placements
but the Third Respondent was not
obligated to be available to take them up (which does not necessarily
seem consistent with an
employment relationship) then there is still
no conclusive evidence on record that Applicant failed to execute its
side of the
bargain.
[14] It is in any even apparent that at
the very least, the Third Respondent at no point discharged the onus
of proof to prove that
he was in fact dismissed by the Applicant. In
the absence of factual clarity about how the status of the
relationship between the
Applicant and Third Respondent unwound, the
First Respondent appeared to have committed the reasoning error of
defaulting to an
assumption that the termination of the relationship
must have been at the behest of the Applicant without having any
factual material
that conclusively or even as a matter of probability
demonstrated this to be the case. The evidence does not appear to
demonstrate
anything more than a gradual deterioration of the
relationship due to a mutual decline of interest on the part of the
Third Respondent
and the Applicant. The Applicant’s efforts
over time to place the Third Respondent apparently never entirely
terminated but
the Third Respondent appears not to find the
placements satisfactory and did not always make himself available to
be placed.
The Review test
[15] As a creature of statute, the CCMA
is not able to as a general rule decide its own jurisdiction and the
issue of whether it
had jurisdiction to rule on a particular matter
or not is a matter to be decided by the Labour Court. The review test
which has
been developed in our Courts and articulated in the
judgment of the Supreme Court of Appeal in Herhold v Nedbank Ltd and
by the
Labour Appeal Court in the Gold Fields Mining South Africa
(Pty) Ltd v CCMA and Othersjudgment therefore does not apply in
instances
where the review point raised relates to the jurisdiction
of the CCMA. The crisp issue to be decided by the Court in instances
where a jurisdictional ruling of the CCMA is at issue is very simply
whether the CCMA in fact had jurisdiction to decide the matter
or
not.
[16] In the present matter the
Applicant simply argues that no dismissal was ever proven by the
Third Respondent and that therefore,
the First Respondent did not
have jurisdiction to decide the matter before him. The Applicant
contends that the evidence before
the First Respondent does not
justify the conclusion that a dismissal had occurred.
Analysis and finding
[17] As is apparent from the assessment
of the evidence reflected above, this Court is persuaded that the
evidence before the First
Respondent did not demonstrate that a
dismissal had occurred in the circumstances. The Third Respondent had
not discharged the
burden to prove that he had been dismissed by the
Applicant.
[18] The exact reasons and
circumstances of the gradual deterioration of the relationship
between the Third Respondent and the Applicant
remains somewhat
murky, but it is readily apparent that the Third Respondent’s
case to the effect that he was retrenched
on 5 March 2012 was
disproven by the evidence insofar as he continued to work for and
receive remuneration from the Applicant after
that date. The First
Respondent’s assumption that a “retrenchment by default”
must be assumed to have occurred
is not consistent with the burden of
proof and itself presupposes that any deterioration of the
relationship and termination thereof
(even if by mutual neglect) must
constitute a conscious act on the part of the employer without
consideration that it may equally
have resulted from the actions of
the employee. It therefore follows that the First Respondent should
have dismissed the referral
and should have ruled that he lacked
jurisdiction to decide the matter.
[19] It is the view of this Court that
it is in a position, with reference to availability of a
comprehensive record of the proceedings
to determine the issue at
hand and that it is, in the interest of justice to substitute the
First Respondent’s finding.
[20] In the circumstances, the
following order is made:
1 The arbitration award issued by the
First Respondent under case number MEGA 36274 dated 20 November 2012
is reviewed and set aside.
2 The award is substituted with the
following:
2.1 Third Respondent’s referral
to the MEIBC is dismissed for want of jurisdiction.
3 There is no order as to costs.
Malan AJ
Acting Judge of the Labour Court of
South Africa
APPEARANCES
For the Applicant: Snyman Attorneys
For the Respondent: In person