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[2015] ZALCJHB 160
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Temo v Van Niekerk and Others (JR1772/13) [2015] ZALCJHB 160 (21 May 2015)
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 1772/13
In the matter between:
TEMO
K.A
Applicant
and
VAN NIEKERK
M
First Respondent
COMMISSIONER FOR CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
PHALANE, T
N.O.
Third Respondent
Heard:
21 April 2015
Delivered:
21 May 2015
Summary:
Review arbitration award. The Commissioner confirming the dismissal
of a domestic worker who refused
to sign and employment contract
having concluded an oral contract and that having been in operation
for three years. Section 29
of the BCEA does not require a written,
neither does it impose the employer the duty to have the employment
contract in writing.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
under case number GATW 3900-13 in terms of which the third
respondent
(“the Commissioner”) found the dismissal of the applicant
to have been both procedurally and substantively
fair and,
accordingly, dismissed his unfair dismissal claim. This application
was not opposed.
[2]
The
review application is accompanied by the application for condonation
for its late filing, which was not opposed.
[3]
The
review application is 80 days late. It is apparent from the reading
of the applicant’s founding affidavit that the reason
for the
delay was due to lack of knowledge on the part of the applicant as to
the process to follow after the Commissioner issued
the arbitration
award. The delay was also caused by the applicant moving between the
department of labour and the CCMA seeking
advice as to what to do. He
finally came to the Labour Court where she was advised by the
SASLAW–
pro
bono
office
to review the arbitration award.
[4]
In
my view, considering the explanation tendered by the applicant, the
delay of 80 days is not excessive. The applicant did not
seat idle
and suddenly plead ignorance of the law. From the time he received
the arbitration award, she went about seeking advice
as to what he
needed to do. It would not serve the interest of justice if
condonation for the late filing of the review application
was to be
refused.
Background facts
[5]
The
applicant who was employed by the first respondent as a domestic
worker was dismissed for refusing to sign an employment contract.
At
the time of refusing to sign the contract, the employment
relationship between the parties had been inexistence for about three
years. The employment relationship was based on the oral contract of
employment concluded between the parties.
[6]
According
to the applicant, the first respondent required her to sign the
contract which had unfavourable terms and conditions to
those of the
existing contract. It was for this reason that she refused to sign
it.
Grounds of review
[7]
The applicant contends
that the arbitration award is reviewable because the Commissioner
committed several gross irregularities
in the conduct of the
arbitration proceedings. The contention is based on the allegation in
the founding affidavit that the Commissioner
failed to take into
account,
inter alia,
the fact that there was no obligation on her to sign the draft
agreement. She also contended that the Commissioner adopted an
incorrect approach in concluding that the
Basic Conditions of
Employment Act 75 of 1997
required a written contract to exist
between an employee and an employer.
The arbitration award
[8]
In his arbitration award,
the Commissioner found that the dismissal was both procedurally and
substantively fair as stated earlier.
He reasoned that the first
respondent was justified in dismissing the applicant for refusing to
sign the employment contract. He
further found that the dismissal was
not on the spare of the moment.
Evaluation/Analysis
[9]
In
upholding the dismissal, the Commissioner reasoned that the first
respondent, in requiring the applicant to sign the employment
contract, was doing so in compliance with the requirements of the
section 29
of the BCEA.
[10]
It
is apparent that all what is required in terms of
section 29
of the
BCEA is that an employer must present to an employee in writing, on
the day he or she starts to work the particulars regarding
the
employment relationship. In practice, this is generally done in the
form of a contract of employment.
It
would seem that it is from this practice that a perception has
emerged that the BCEA requires a written and signed employment
contract and that if an employee refuses to sign such a contract even
during the existence of an employment relationship the employer
is
entitled to dismiss for that reason alone. This is, clearly, a
misconception of the law.
[11]
It
should be pointed out that the absence of a signed agreement does not
take the employment relationship outside the provisions
of the Labour
Relations Act. An oral employment contract provides an employee with
no less rights than those rights envisaged in
the Labour Relations
Act as those employed in terms of a written contract. To this extent,
an employee employed in terms of an
oral agreement has the right not
to be unfairly dismissed or subjected unfair labour practice in terms
of section 185 of the LRA.
[1]
An
oral employment contract can only be terminated if there exist
substantive and valid reasons to do so.
[12]
The
Commissioner, in the present instance, seems to have been influenced
by the same misconception referred to earlier in concluding
that the
dismissal of the applicant was for a fair reason. There was no
evidence before the Commissioner that the refusal to sign
the
employment constituted any of the grounds for dismissal as envisaged
in section 188 of the LRA.
[2]
[13]
In
light of the above, I find the decision of the Commissioner to have
failed the standard of reasonableness envisaged by the Constitutional
Court in S
idumo
and
Another v Rustenburg Platinum Mines Ltd and Others
.
[3]
Accordingly,
the arbitration award of the Commissioner stands to be reviewed.
There is, however, insufficient material for this
court to determine
the matter. Thus the matter has to be remitted to the CCMA.
Order
[14]
In
the circumstances, the following order is made:
1.
The
arbitration award made under case number GATW 3900-13 is reviewed and
set aside.
2.
The
matter is remitted to the second respondent before a Commissioner
other than the third respondent.
________________
Molahlehi, J
Judge of the Labour
Court Johannesburg
Appearances:
For the Applicant:
In Person
_______________________________________________
[1]
Every
employee has the right not to be-
a)
Unfairly dismissed; and
b)
Subjected to unfair
labour practice.
[2]
(1)
A dismissal that is not automatically unfair, is unfair if the
employer fails to prove-
a)
That the reason for
dismissal is for a fair reason-
i.
Related to the employee’s
conduct or capacity; or
ii.
Based on the employer’s
operational requirements; and
b)
That the dismissal was
effected in accordance with a fair procedure.
(2)
Any person considering whether or not the reason for the dismissal
is a fair reason
or whether or not the dismissal was effected in
accordance with a fair procedure must take into account any relevant
code of
good practice issued in terms of this Act.
[3]
(2007)
28 ILJ 2405 (CC) at para 110.