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[2015] ZALCJHB 220
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Leondale Security Services CC v Commissioner for Conciliation, Mediation And Arbitration and Others (JR1641/13) [2015] ZALCJHB 220 (27 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
DATE:
27 JULY 2015
Case
no: JR1641/13
Not
Reportable
LEONDALE
SECURITY SERVICES
CC
.............................................................................
Applicant
And
COMMISSIONER
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
DOCRAT,
HASSIMA BAMU
(COMMISSIONER)
.............................................
Second
Respondent
NOLLY
SELOWA
.......................................................................................................
Third
Respondent
Heard:
10 July 2015
Delivered:
27 July 2015
JUDGMENT
HULLEY,
AJ
[1]
This is an application to review and set
aside an arbitration award issued by the second respondent in favour
of the third respondent.
[2]
The third respondent had been in the employ
of the applicant. A dispute arose regarding the termination of
his contract of
employment and he referred the dispute to the CCMA.
The applicant denied that he had been dismissed and contended that he
was on a fixed-term contract which had come to an end.
[3]
The second respondent rejected the
applicant’s contention. She found that “a dismissal
has been established”
and that it was both substantively and
procedurally unfair. Based upon the aforesaid she ordered the
applicant to pay to
the third respondent an amount of R15 133.20
which was the equivalent of his monthly remuneration over 6 months.
[4]
In its founding affidavit in the review
proceedings the applicant contended that:
“
During
the hearing the commissioner was insisting the 3 respondent (
sic
)
was dismissed and the (
sic
)
was no contract of employment and there was no enough reasons of
terminating this contract. His contract was supposed to end on
the
2015. The respondent 3 (
sic
)
was never dismissed by the applicant, what happen (
sic
)
his contract with the applicant expired as they (
sic
)
was nothing binding the company to renewal [of] his contract of
employment.”
[5]
When dealing with the grounds of review the
applicant stated:
“
I
would like this case to be heard again as I have raised valid reason
to the commissioner. But the commissioner did not apply
her
mind when awarding this award.
i.
The contract was binding.
(ii
The respondent understand that he was on a contract of a certain
period.
(iii.
The commissioner was biased (one sided).”
[6]
Attached to the founding affidavit in the
review application was a two-page affidavit on the letterhead of the
applicant.
No reference was made to this document during the
course of argument.
[7]
In this document the applicant essentially
raised the point that the third respondent had signed a fixed term
contract of employment,
that he (the third respondent) was educated
and must have understood the terms of the contract, that he had
signed each page of
the contract twice which was indicative of his
awareness of the contents and that the arbitrator “has no
jurisdiction to
make an award against a valid Fixed Term Contract
signed by both parties”.
[8]
At the arbitration proceedings only two
witnesses testified, the one being Mr Simon Maswanganye and the other
the third respondent.
The second respondent followed a rather
curious route in her attempt to obtain the evidence from the
witnesses. Having sworn
both witnesses in simultaneously, she
then explained to them that:
“
The
respondent [the applicant
in casu
]
will be given an opportunity to present his case, he will be having
an opportunity to call any witnesses. The applicant
[the third
respondent
in casu
]
will have an opportunity to cross-examine the evidence presented by
the [applicant], all the [applicant’s] witnesses.
And the
[applicant] [will] have an opportunity to reply or answer today.
The same opportunity will be afforded to the [third
respondent], he
can present his case, evidence in chief, he can be cross-examined by
the [applicant] and then he may be respond
in terms of a reply and an
answer, but purely on the basis of what the issues are, no new
evidence.”
[9]
It is not clear to me precisely what the
second respondent had in mind, but what she appears to have intended
was the ordinary adversarial
trial process.
[10]
Whatever she had in mind, what unfolded
subsequently bore no resemblance to the ordinary trial process.
It certainly bore
no resemblance to what the second respondent
explained above.
[11]
Nevertheless, this aspect does not appear
to have been raised as a ground of review and I do not intend relying
upon it for the
purpose of this judgment, save to make the point that
the inadequacy of the process has rendered it very difficult to
understand
how the second respondent came to her decision.
[12]
At the outset of the proceedings,
Maswanganye handed in three documents, copies of the contract, a
reminder letter and a time sheet.
The only document which I
need not consider for present purposes is the contract of employment
(the reminder letter has some relevance,
but it depends upon the
prior existence of the fixed-term contract).
[13]
Most of the contract is in typed form.
It contains the name of the applicant in big bold letters at the top
of the first page
and is headed “CONTRACT AND CONDITIONS OF
SERVICE AND DISCIPLINARY CODE”.
[14]
Below the heading it has the following
typed words and gaps:
“
_____
MONTHS AND ______ DAYS FIXED TERM CONTRACT FROM _______ TO _______”.
[15]
In handwritten manuscript the gaps were
filled in as follows:
“
SEVEN
MONTHS AND
14
DAYS FIXED TERM CONTRACT
FROM
01-11-2012
TO
20-06-2013
”.
[16]
The last page of the contract contained
similar information. The employee party was required to indicate by
signing that page that
he or she acknowledged that before doing so he
or she agreed to the conditions and was certain that he or she
understood them.
[17]
There is little doubt that the document, on
the face of it, purported to be a fixed term contract. That not
only appears from
the wording to which I have just referred but from
clauses within the body of the contract itself. For instance,
on the second
page of the contract under the heading “Fixed
Term Contract” it is recorded that:
“
THIS
IS A SIGNED FIXED TERM CONTRACT AND TIES YOU TO WORK FOR LEONDALE
SECURITY SERVICES CC FOR A PERIOD OF
SEVEN
MONTHS AND
14
DAYS FROM DATE OF SIGNATURE”
.
[18]
The underlined portion was inserted by
hand.
[19]
It is then recorded in larger font and
underlined that the contract would not be automatically renewed and
expired at the end of
the contract period. It recorded that in
order to qualify for re-employment a new contract would have to be
signed, agreed
and accepted.
[20]
Maswanganye testified that the third
respondent had a Standard 10 education and it could not be said that
he did not understand
the terms of the agreement. Maswanganye
explained that the third respondent had not been dismissed but that
his contract
had simply come to an end at the end of its period.
[21]
It is difficult to understand precisely
what the third respondent’s case was. Initially he
contended, when putting questions
to Maswanganye, that he had never
received this document and had not signed it. He pointed to the
date indicated on the agreement,
i.e. 20 May 2013, and claimed that
he was not present at the company’s site on that date.
[22]
Later, when asked by the second respondent
to explain whose signature appeared on the document, the third
respondent stated “this
signature is what I said when we signed
the contract, we signed the blank page”. He then pointed
out that the information
which was in handwritten manuscript was not
contained in the document at the time of his signature and that those
dates had in
fact been left out.
[23]
Subsequently he explained that the document
was not the same document and did not have the name of the applicant
at the top of the
document. In response to that the second
respondent again asked the third respondent how his signature came to
be on the
contract. This time he stated that it was not his
signature.
[24]
The third respondent, in response to Mr
Maswanganye’s contention that there were no pages which were
signed in blank, stated:
“
As
you know, if you are looking for a job and you are desperate, you say
sign here and sign here and besides you need to work, they
confused
you.”
[25]
The arbitration award of the second
respondent contains a survey of the evidence which in some respects
is not entirely accurate
with what is contained in the transcribed
record. For instance, in paragraph 12.2 (the award wrongly
referred to paragraph
11.2) the second respondent recorded that the
applicant, when presented with the documents for signature, requested
an opportunity
to read them first but was asked “whether or not
he wanted to read the documents or wanted a job – he needed
work and
thus signed the documents”. This was not the third
respondent’s evidence. Similarly, in paragraph 12.3 (it
is
again wrongly recorded in the award as paragraph 11.3), the second
respondent stated that evidence showed that the third respondent
“was
assured that he had a long term contract and that his employment
would only end if he committed misconduct”.
I could not
locate any such evidence. There are additional errors. It
seems that the second respondent had acted as
the conciliating
commissioner in the proceedings; it is likely that some of the
information supplied during that session unwittingly
filtered into
the arbitration proceedings. I do not think these errors are
material to the outcome and make nothing of them
in arriving at my
conclusion.
[26]
In assessing the respective versions the
second respondent stated that the third respondent was “confident
and sure of himself.
I found his testimony credible”.
She noted that it was “not improbable” that the third
respondent signed
an incomplete document “under the duress of
which he testified”, and pointed out that it would “then
be most
convenient for the employer to simply insert the termination
date of the contract at a time suitable to them or their client”.
The second respondent went on to state:
“
This
and other ploys by employers to bypass fair employment procedures
relating to dismissals are regrettably common, but hopefully
a
declining feature brought to the table at the CCMA and other dispute
resolution forums”.
[27]
Maswanganye, on the other hand, did not
make a good impression on the second respondent. According to
her award he “made
for a very guarded witness; he was not
forthcoming with his evidence or information” and “said
very little to defend
his case only that it was a fixed term contract
with a commencement date and an end/termination date and that
employees were aware
of same”. She found that Maswanganye
“was not willing to take this honourable commission into his
confidence”.
The second respondent then found that the
fixed-term contract was not a valid contract because, so she said –
“
after
considering the probabilities, I find that the [applicant] indeed
coerced (‘fear of not being employed’) the [third
respondent] into signing an incomplete document which enabled the
employer, at its sole discretion, to terminate the employment
relationship on a date convenient to the employer”.
[28]
In this regard she found that on a balance
of probabilities the employer had inserted the start and end dates
which implied that
at the time when the contract was concluded “there
was no meeting of the minds”.
[29]
As
noted previously, there was a dispute whether the third respondent’s
services had come to an end as a result of a dismissal
or whether it
was the consequence of a termination by effluxion of time under a
fixed-term contract. That dispute went to
the heart of the
jurisdiction of the arbitrator. In the absence of a dismissal,
the arbitrator had no power to entertain
the dispute.
[1]
[30]
This
legal nicety appeared to have escaped the representatives, both of
whom argued the matter on the principles set out in
Sidumo
[2]
.
After argument and during the course of preparation of the matter I
drew the attention of the parties’ representatives
to the
judgment in
SA
Rugby Players’ Association
and invited them to address me on the applicable standard of review
and any further representations regarding the relief sought.
[31]
Both parties submitted further submissions.
[32]
Ironically,
the applicant’s representative
[3]
submitted that the correct standard was that set out in
Sidumo
“as elaborated on in the
Goldfields
[4]
matter”.
[33]
On the other hand, the first respondent’s
representative, appreciating the predicament presented by
SA
Rugby Players’ Association
,
submitted that the principle set out in that case and subsequent
cases was wrong, that the question of whether there was a dismissal
was not a jurisdictional fact and, on the assumption that
SA
Rugby Players’ Association
was
wrong, that the correct standard was indeed that set out in
Sidumo
.
[34]
In the alternative, the first respondent’s
representative argued that if the
SA
Rugby Players’ Association
test
was applicable, “there is sufficient evidence that the first
respondent was dismissed”, but if I was not satisfied
that
there was, that the matter be remitted to the second respondent for a
hearing before a different commissioner.
[35]
I will deal with these arguments below.
[36]
It
appears to be settled law that where there is a dispute as to a
dismissal, the onus is upon the employee party to prove such
dismissal.
[5]
Since the
existence of a dismissal goes to jurisdiction, it is for this court
to determine whether a dismissal had been established.
[6]
[37]
The
arguments raised by the first respondent’s representative have
previously been considered by me in the related context
of
constructive dismissals. In
Distinctive
Choice
[7]
I drew attention to the provisions of s. 191(5)(a) of the LRA and
pointed out that it –
‘
does
not require the CCMA or bargaining council to arbitrate the dispute
if there is 'a dismissal', as stated by the Labour Appeal
Court [in
SA
Rugby Players’ Association
];
it requires the tribunal to arbitrate the dispute 'if' the employee
has
'alleged
that the reason for dismissal' is one or several factors, including
that the employer made continued employment intolerable. Thus,
on a
strict reading of the section, the relevant jurisdictional fact
appears to be the existence of
an
allegation
by the employee that the reason for his or her dismissal is one of
the listed factors, not the existence of the dismissal.’
[8]
(Emphasis added)
[38]
I noted, however, that I was bound by the
judgment in
SA Rugby Players’
Association
and accordingly applied the
standard set out in that case.
[39]
As recently as June of this year the Labour
Appeal Court upheld the principle enunciated in
SA
Rugby Players’ Association
and,
remarking on the attempt by the Labour Court to overrule the
principle established in that case, pointed out that –
‘
the
decision by the Labour Court about whether an allegation about a
constructive dismissal triggers a jurisdictional issue or an
issue
about the merits of a termination of employment, was not competent
for the Labour Court to make’.
[9]
[40]
The same holds true in the present case.
[41]
In
short, this court is not bound by any findings made by the arbitrator
on an issue that goes to his or her jurisdiction.
The
applicant’s apparent adoption of the higher standard of review
must be ignored. This court is not bound by an incorrect
concession
of law.
[10]
[42]
Where
the employer contends that the contract of employment came to an end
as a result of a mutual agreement, such agreement may
either have
existed at the time when the contract of employment was entered into
(as in the case of a fixed-term contract) or may
have come into
existence subsequently. In either event, the primary question
is whether such agreement existed, and the onus
to prove that it did
not
exist
rests upon the employee by virtue of the fact that he bears the onus
to prove the existence of a dismissal. If the employee
fails to
prove that such agreement did
not
exist, she must fail.
[11]
[43]
I
am satisfied on the record as it stands that the version of the
employer ought to have been accepted. In the first instance,
in
order to determine the factual dispute one has to consider where the
probabilities lie having regard to the credibility of the
witnesses,
their reliability, and the probabilities.
[12]
[44]
In the present case there were two
diametrically opposed views, one being that the contract had been
signed in blank and the other
that the dates had been filled in.
[45]
The first and most telling piece of
evidence was the contract itself. The third respondent
challenged the authenticity of
the document handed up, but that
challenge must be seen in the context of the differing versions
offered by the third respondent.
[46]
At one stage the third respondent admitted
to signing the document (contending only that the document was signed
in blank), but
later denied having signed the document altogether and
disputed that the signature contained on it was his. At the
arbitration
proceedings Maswanganye invited the second respondent to
compare the signature which appeared on the document with that which
appeared
on the referral forms. It is unclear whether such a
comparison was performed.
[47]
A
court is entitled to conduct its own analysis,
[13]
but should do so with a great deal of circumspection.
[14]
My own analysis of the third respondent’s signature with
documents signed in this court suggests that they are identical.
I am, however, reluctant to rely upon my own analysis especially
where I have not had the benefit of considering the original document
and of doing so with the witnesses before me. For the purpose
of my finding in the present case, I place no reliance upon
such
comparison.
[48]
That having been said, I am satisfied that
the signature was that of the third respondent. I come to this
conclusion on a
range of factors including the third respondent’s
initial admission, the withdrawal of which was not adequately
explained.
Indeed, the second respondent was herself satisfied
that he had signed the document.
[49]
In addition, if it was not the third
respondent’s signature on the document it would have to be a
forgery. Yet the third
respondent did not explicitly suggest a
forgery and the probabilities were against such a conclusion.
After all, why would
the employer go to the trouble of forging the
document, when it had the power (which the third respondent alluded
to) to require
him to sign such a document at the outset?
[50]
At any rate, assuming that the third
respondent did mount a successful challenge the authenticity of the
document, it would be of
little assistance to him. In order to
discharge the onus which was upon him, he would have to produce the
contract which
he claimed to have signed. I accept that he did
not have that document because it was in the possession of the
applicant,
but it was never requested and unless he was able to prove
the existence of such document and that its contents were consistent
with his version, the best he could hope for was a form of absolution
against himself, i.e. that it was impossible to determine
where the
truth lay and because he bore the onus he had to fail.
[51]
In any event, while the third respondent
disputed his signature, he did not challenge the contents of the
document, save in respect
of the name of the applicant (which
appeared on the first page) and the handwritten portions.
[52]
Once one accepts that the document produced
by the applicant was the same as that signed by the third respondent
(whether or not
it was in blank), the third respondent’s
version becomes all the more improbable. There are a number of
indications
in the document that it was intended to be a fixed-term
contract. This much appears from the passages in the contract I
referred
to above. On a casual consideration of the document
the third respondent would have realised that
some
information had to be inserted in those blank spaces. This
realisation would have driven him to either make enquiries as
to the
dates to be inserted in the blank spaces or to accept whatever dates
were subsequently inserted (I do not suggest or decide
that he would
necessarily be bound; I am only concerned with the probabilities at
this stage). He provided no evidence on
this aspect.
[53]
I further do not agree with the
arbitrator’s assessment of the credibility of the respective
witnesses. As indicated in my
recording of the evidence, the third
respondent’s version changed on several occasions, ultimately
concluding that he had
not signed the contract. The second
respondent herself found that the contract had been signed by the
third respondent; and
by implication she rejected his version.
[54]
Nor, for that matter, could I find any
justification for the arbitrator’s credibility findings in
respect of Maswanganye.
Her assessment of Maswanganye’s
credibility appears to have been influenced by her preconceived
notion that employers were
wont to make use of “ploys” to
circumvent the protection offered to employees by the LRA. But
this finding begged
the very question it sought to answer,
viz
.
whether the employer
in casu
had in fact done so.
[55]
I turn now to consider whether the contract
of employment was indeed signed in blank. This question has
largely been answered
given the findings made by me above as regards
the probabilities.
[56]
If one considers the last page of the
agreement it is clear that the applicant had signed specifically
indicating that he appreciated
the fact that the agreement is for a
fixed term only.
[57]
I am satisfied that there was sufficient
evidence to demonstrate that the third respondent had indeed signed
the agreement and that
it was not signed in blank.
[58]
With that in mind, I am satisfied on a
reading of the agreement that the contract came to an end by
effluxion of time and that the
third respondent, accordingly, had not
been dismissed.
[59]
In my view this is not a case in which
costs should follow the result. The issue which has proved
determinative is not one identified
by the applicant. Moreover, it
appears that the employee is not a man of means.
[60]
In all the circumstances, I make the
following order.
60.1
It is declared that:
60.1.1
The third respondent’s contract of
employment came to an end by effluxion of time;
60.1.2
The second respondent had no jurisdiction
to determine the dispute.
60.2
The award delivered by the second
respondent is reviewed and set aside.
60.3
There is no order as to costs.
Hulley, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Adv. I. Strydom
Instructed
by: Erasmus Attorneys
On
behalf of the Respondent: Mr L. Frahm-Arp (Attorney)
Instructed
by: Fasken Martineau Attorneys
[1]
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SA Rugby Players Association
(2008) 29 ILJ 2218 (LAC), at par. 39;
Consol
Glass (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2012) 33 ILJ 376 (LC), at par. 11
[2]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24 (CC)
[3]
The
written submissions were apparently not prepared by the counsel who
represented the applicant during argument
[4]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
(2014) 35 ILJ 943 (LAC)
[5]
Section
192(1) of the LRA
[6]
SA
Rugby Players Ass.
,
supra
,
at par. 40
[7]
Distinctive
Choice 721 CC t/a Husan Panel Beaters v Dispute Resolution Centre
(Motor Industry Bargaining Council) & others
(2013) 34 ILJ 3184 (LC)
[8]
At
3198B – D
[9]
Conti
Print CC v CCMA and Others
(JA53/2014)
[2015] ZALAC 25
(24 June 2015)
[10]
Cole
v Government of the Union of S.A.
,
1910 AD 263
at p. 272;
Alexkor
Ltd & Another v The Richtersveld Community & Others
[2003] ZACC 18
;
2004 (5) SA 460
(CC), at 476G – 477A
[11]
She
may nevertheless succeed if she proves that although it was a
fixed-term contract, the contract had been terminated
before
the termination date. That, however, raises a different issue
with which I am not presently concerned.
[12]
Stellenbosch
Farmers' Winery Group Ltd & another v Martell et Cie &
others
2003 (1) SA 11 (SCA)
[13]
R
v. Kruger
1941 OPD 33
, at 38
[14]
R
v. Fourie
1947 (2) SA 972
(E), at 974 - 5