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[2015] ZALCJHB 260
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Magnified Designs (Pty) Ltd v Littler and Others (JR355/13) [2015] ZALCJHB 260 (14 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 355/13
MAGNIFIED
DESIGNS (PTY) LTD
Applicant
and
ROBERT
TYRONE LITTLER
COMMISSIONER
KAIZER MAKOELA
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
Second
Respondent
Third
Respondent
Delivered:
14 August 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This
opposed application was brought before the court in terms of section
145 (a) of the Labour Relations Act
[1]
.
The applicant seeks an order to review and set aside the arbitration
award dated 7 February 2013, issued by the Second Respondent
(Commissioner) under case number GAJB25924-12. In the award, the
Commissioner concluded that the First Respondent (Littler) was
dismissed, and further that the dismissal was procedurally and
substantively unfair. The applicant was ordered to pay Littler
compensation in the amount equal to R143 400.00.
Background:
[2]
Littler
was employed by the applicant as head of security. He was approached
by the receptionist of the applicant on 20 August 2012
and informed
that there was a vacant position for the receptionist opening soon.
Littler contacted his stepdaughter and gave her
CV to the senior
manager of the applicant. The senior manager conducted an interview
with Littler’s stepdaughter. The director
of the applicant
called Littler to enquire as to the reason he was employing family
into positions within the company, as this
was against company
policies and procedures.
[3]
According
to the applicant, Littler was informed that he will be required to
attend a formal disciplinary enquiry at a date to be
scheduled, and
upon this, he had left the premises of the applicant and failed to
come back to work.
[4]
Littler
however contends that other than being informed of the disciplinary
enquiry, he was also informed that he was suspended
and told to leave
the premises. He further contends that a week later he was
telephonically informed that he was dismissed.
[5]
He
had then referred a dispute to the CCMA claiming unfair dismissal.
The arbitration proceedings where held on 28
th
of January 2013, where both parties were legally represented.
The
award:
[6]
In the award, the Commissioner recorded that no bundles were
submitted and that the applicant (respondent in arbitration
proceedings)
had not led evidence. The Commissioner had also stated
that he was required to decide whether a dismissal took place and if
so
whether it was procedurally and substantively fair. In summarising
Littler’s evidence, the Commissioner stated that the former
was
informed of his suspension on 21 August 2012 and had then left. He
had called the “Respondent” the following week
to enquire
as to what was happening and was then told that he was dismissed. The
Commissioner further recorded that under cross-examination,
Littler
was confused of the date he was informed of his dismissal even though
he had stated that it was on 29 August 2012.
[7]
The Commissioner recorded that the applicant’s representative
had argued that dismissal was placed in dispute and that
the evidence
led by Littler was hearsay. The Commissioner however held that the
applicant should have called a witness and that
the probative value
of Littler’s evidence was higher than the arguments raised by
the applicant’s representative. He
further found that Littler
could not have simply decided to stay at home as he was told by the
applicant on 29 August 2012 that
he was dismissed. Furthermore, since
the applicant had not made any attempts to ascertain Littler’s
whereabouts, the Commissioner
was convinced that he was dismissed,
which dismissal was unfair.
The grounds of review:
[8]
The essence of the applicant’s submissions is that as its legal
representative at the arbitration proceedings had alluded
that his
instructions were sketchy, and that the primary issue was the
existence of a dismissal, the cross-examination of Littler
was
limited to whether or not he was dismissed.
[9]
It was further submitted that since the applicant had raised the
jurisdictional objection, the Commissioner was first required
to
determine whether the CCMA had jurisdiction to adjudicate the matter,
and only thereafter would the applicant have been required
to prove
that the dismissal was fair. The Commissioner however had according
to the applicant, and without an express agreement
to do so, dealt
with the jurisdictional objection and the dismissal dispute as one
enquiry. To the extent that the Commissioner
had done so, it was
contended that he had exceeded his powers in dealing with the dispute
in the manner in which he did, and the
award accordingly as far as it
exceeded the ruling on jurisdiction fell to be reviewed and set
aside.
[10]
Submissions made on behalf of Littler were essentially that the
applicant has not set out any valid grounds for the review
and the
setting aside of the award. Furthermore, it was submitted that to the
extent that the jurisdictional issue was raised before
the
Commissioner, there was no other evidence led by the applicant before
the Commissioner to persuade him that a dismissal did
not take place.
The
legal framework and evaluation:
[11]
The Commissioner had correctly identified the issue for determination
as to whether Littler was dismissed or not. The record
of proceedings
indicates that Littler had testified in relation to the incident that
led to the alleged dismissal and thereafter,
the Commissioner had
then informed him that he could not recall him saying how he was
dismissed, and further proceeded to ask him
whether he was indeed
dismissed during a telephonic conversation
[2]
.
Littler had responded in the positive, proceeded to testify that
having been suspended he had then called Norman Tloubatla, who
had
informed him that he was not suspended but ‘fired’.
Cross-examination of Littler centered on his confusion regarding
the
actual date of his dismissal, whether the dismissal took place on 21,
27 or 29 August 2012.
[12]
Section 192 (1) of the LRA provides that in any proceedings
concerning a dismissal, the employee must establish the existence
of
a dismissal. It is trite that once a jurisdictional point such as
that was before the Commissioner as to whether or not a dismissal
existed, the applicable test is not that as set out in
Sidumo
[3]
.
The approach is as set out by Tlaletsi AJA (as he then was) in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd
[4]
where it was held that;
“
The issue that was before the
commissioner was whether there had been a dismissal or not. It is an
issue that goes to the jurisdiction
of the CCMA. The significance of
establishing whether there was a dismissal or not is to determine
whether the CCMA had jurisdiction
to entertain the dispute. It
follows that if there was no dismissal then the CCMA had no
jurisdiction to entertain the dispute
in terms of s 191 of the Act.
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court…….”
[13]
Central to the applicant’s submissions is whether the
Commissioner was entitled to deal with the issue of whether there
was
a dismissal, and the merits without the parties’ consent
[5]
.
The raising of a jurisdictional point relating to whether there was a
dismissal or not always presents a conundrum in arbitration
proceedings, more specifically in the light of the question of onus
and a proper process to follow.
[14] By virtue of it
being a jurisdictional point, which obviously has to be determined
prior to dealing with the merits of the
main claim, and since the
employee bears the evidentiary burden in this regard, he or she must
lead evidence specifically on that
issue alone to prove the fact of a
dismissal. Once all the evidence on that specific issue has been
dispensed with, it would then
be expected of the Commissioner to make
a ruling on the matter. The Commissioner may make an ex tempore
ruling or adjourn the proceedings
to consider the matter. If the fact
of a dismissal is not established, then obviously the Commissioner
would lack jurisdiction,
and it would be the end of the matter.
However where the employee has established the existence of a
dismissal, it would then be
for the employer to present evidence to
establish that the dismissal was fair. This process is what may
ordinarily be referred
to as a two-stage enquiry. To the extent that
the Commissioner follows this process, which shall be dictated by the
merits of the
case, the parties should obviously be made aware of it.
[15] A further scenario
may however arise where the issue of whether there was a dismissal or
not may be intrinsically linked to
the merits of the case. It is in
these instances where the question of onus gets conflated. As it had
happened in this case, Littler
was the first to testify in view of
the jurisdictional issue having been raised. Nevertheless the bulk of
his evidence pertained
to circumstances leading to the alleged unfair
dismissal, until he was prompted by the Commissioner to answer to
questions as to
whether he was indeed dismissed.
[16] Due to the reason
that the Commissioner had not warned the parties that he would adopt
a one-stop enquiry, he had heard evidence
from Littler in respect of
the jurisdictional point and the merits all at once and issued his
award. This in my view was grossly
irregular in that a determination
had to be first made as to whether the Commission had jurisdiction or
not. Where the Commissioner
had adopted this one stop enquiry, it was
incumbent upon him to then warn the parties and inform them that the
jurisdictional issue
would be determined together with the merits of
the matter.
[17]
It is appreciated that in terms of the provisions of section 138
(1) of
the LRA, the Commissioner may conduct the arbitration in a manner
that he or she considers appropriate in order to determine
the
dispute fairly and quickly, but must deal with the substantial merits
of the dispute with the minimum of legal formalities.
This however
should not be read to be a license to conflate jurisdictional issues
with the merits of the main claim where circumstances
arise, or to
deal with these issues haphazardly, with the result that the parties
are deprived of a fair hearing. There is an obligation
to determine
these issues fairly and quickly. The one-stop enquiry when dealing
with such jurisdictional issues may be expedient.
Expediency however
should not be achieved at the expense of fairness.
[18]
The
review test as enunciated in
Sidumo
[6]
is that of a reasonable decision maker. Effectively, the enquiry is
whether the arbitrator gave the parties a full opportunity
to state
their respective cases at the hearing, identified the issue that he
or she was required to arbitrate, understood the nature
of the
dispute and dealt with its substantive merits. The function of the
reviewing court is limited to a determination whether
the
arbitrator’s decision is one that could not be reached by a
reasonable decision-maker on the available material
[7]
.
[19]
Once the parties are not afforded a full opportunity to state their
respective cases, it follows that the Commissioner cannot
arrive at a
reasonable outcome. The finding of the Commissioner on whether
Littler was dismissed is unassailable as this was the
issue that the
applicant’s representative at the arbitration proceedings had
come prepared for and argued. No evidence was
led to controvert
Littler’s testimony that he was informed telephonically that he
was dismissed. No attempt was made by the
applicant at that stage to
call upon Tloubatla who had allegedly dismissed Littler to rebut that
evidence. The applicant as the
record reflects chose not to call any
witnesses in that regard, and the limited cross-examination of
Littler was more concerned
with the date of the dismissal than with
the fact of the dismissal itself. This in my view did not assist the
applicant’s
case at arbitration.
[20]
The award is however reviewable in the light of the one stop-enquiry
the Commissioner had adopted without warning the parties.
This
constituted a reviewable irregularity as the applicant was entitled
to a ruling on the preliminary issue raised, or where
no such ruling
was to be issued immediately, to be advised by the Commissioner that
the merits of the claim would be simultaneously
dealt with the
preliminary issue, as it was not only expedient but also fair to do
so. I am in agreement with the applicant that
the Commissioner
exceeded his powers in adopting the approach as he did, which had the
result of depriving the applicant of a fair
hearing.
[21]
To the extent that the review application is partially successful,
there is no basis in law or fairness for any cost order
to be made.
Order:
i.
The
arbitration award issued by the second respondent under case number
GAJB25924-12 is reviewed and set aside.
ii.
The
matter is remitted back to the Third Respondent for a determination
by another Commissioner on whether the dismissal of the
First
Respondent was procedurally and substantively fair.
iii.
There
is no order as to costs.
________________
Tlhotlhalemaje, AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv AJ Nel
Instructed
by:
Lee and McAdam Attorneys
On
behalf of the Respondent:
S Singh of LS Attorneys
[1]
Act 66 of 1995 as
amended
[2]
Line 1-2 p 16 of
the Record
[3]
See
Twoline
Trading 413 (Pty) Ltd t/a Skosana Contract Labour v Abraham
Mongatane and Others
[2014] JOL 31668
(LC) at paras [24] to [29]
[4]
(2008) 29 ILJ 2218
(LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC) at paras [39]-[40]
[5]
With reference to
ABSA
Bank Ltd v Wabile NO & others
[2014] ZALCJHB 278 at paras [29] to [31]
[6]
2007] 12 BLLR 1097
(CC)
[7]
Goldfields
Mining South Africa (Pty) Ltd v CCMA
(2014)
35 ILJ 943 (LAC) at para [20]