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[2015] ZALCJHB 299
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Tresso Trading 578 (Pty) Ltd t/a Wisani Petroleum v Verhoef NO and Others (JR1347/12) [2015] ZALCJHB 299 (8 September 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 1347/12
In the matter
between:
TRESSO TRADING 578 (PTY)
LTD
t/a WISANI
PETROLEUM
APPLICANT
and
COMMISSIONER
JFM VERHOEF
N.O
FIRST
RESPONDENT
NBCRFLI
SECOND RESPONDENT
MICHAEL
JABULANI
BALOYI
THIRD RESPONDENT
Heard
:
7 September 2015
Delivered
:
8 September 2015
JUDGMENT
VAN
NIEKERK J
[1]
This matter originally served before the court as an unopposed
application in terms of Rule 11 in terms of which the third
respondent cited above sought to dismiss a review application filed
by the applicant. The parties agreed, after the record of the
proceedings under review was belatedly filed, to proceed with the
review application. That application was technically also unopposed,
although the third respondent appeared in person and made a number of
submissions.
[2]
In the review application, the applicant seeks to review and set
aside an award issued by the first respondent on 8 May 2012.
In his
award, the arbitrator found that the applicant had unfairly dismissed
the third respondent and awarded him compensation
in an amount
equivalent to nine months’ remuneration, some R 62 300.
[3]
The relevant factual background is set out in the arbitration award,
and I do not intend to repeat it here. It suffices to say
that the
third respondent was employed in April 2006 as a driver. During the
opening addresses, it became apparent that the applicant
disputed
that the third respondent had been dismissed. The applicant’s
case, broadly speaking, was that the third respondent
had absconded
from his employment and that despite attempts to contact him, he
failed to return to work. On 4 October 2011, the
letter was issued to
the third respondent recording that in terms of his contract of
employment, his employment terminated automatically.
The applicant
relied in particular on clause 4 of the contract which provided that
absence from work for four weeks or more without
notice constituted
abscondment for which automatic dismissal would be applicable.
[4]
In his award, the arbitrator recorded that the issues to be decided
were whether the third respondent was dismissed, and if
so, whether
his dismissal was procedurally and substantively fair. The arbitrator
concluded that it was common cause that the third
respondent had been
in the employee of the applicant since April 2006 and that he worked
until 31 August 2011. The third respondent’s
evidence was that
on 31 August 2011 he went on family responsibility leave to attend
his grandmother’s funeral thereafter,
on 5 September 2011, he
was given permission to go on annual leave. When he noticed that his
salary had not been paid into his
account at the end of September
2011, contacted the applicant and was informed that he services had
been terminated due to his
absconded. This much is confirmed in the
letter dated 4 October 2011 referred to above, which the third
respondent received on
10 October 2011. The applicant is version was
that it had established that the third respondent did indeed attend a
funeral on
2 September 2011, but that he failed to return to work
until 10 October 2011 after he was informed to collect his letter of
termination
of employment.
[5]
Insofar as the applicant relied on those judgments which deal with
deemed dismissals in the public sector (e.g.
Phentini v Minister
of Education & others
(2006) 27
ILJ
477 (SCA) the
arbitrator took the view that those cases were distinguishable on the
basis that they dealt a statutory provisions.
The arbitrator recorded
that while a termination in the circumstances did not constitute a
dismissal for the purposes of the LRA,
the proper approach to be
adopted in the private sector was that where an employer had the
effective means of communicating with
an employee who is absent from
work, the employer is obliged to give effect to the obligation to
accord the employer hearing before
taking any decision to dismiss
(see
SA Broadcasting Authority v CCMA
(2002) 23 I’ll
J1549 (LAC)). The arbitrator made specific reference to paragraph 16
of the latter judgment which required
that the employer ought to have
arranged for disciplinary hearing when the employee reported for work
after she was telephonically
contacted. The arbitrator concluded as
follows:
47.
The employee had provided service to the employer since 2006 and his
absence from work should
have raised alarm bells for the manager. The
manager had all the contact details of the employee and even, on his
own evidence,
has visited the employee’s wife at a workplace
when it was established that the employee was attending a funeral.
Nothing
had prevented the manager to again visit the wife of the
employee in order to establish why the employee had not returned to
work
after the funeral. Even on the return of the employee on 10
October 2011 a disciplinary hearing could and should have been held.
The manager did not even ask whether the employee was. It is
accordingly my view that the employee had in fact been dismissed and
that the employer has failed to afford the employee a fair hearing
before terminating his employment.
[6]
As I have indicated above, the arbitrator went on to find that the
third respondent had been unfairly dismissed and that he
should be
awarded the compensation he sought.
[7]
The applicant’s grounds for review rely on the decision by the
Constitutional Court in
Rustenburg Platinum Mines (Pty) Ltd v CCMA
& others
[2006] 11 BLLR 1021
(SCA). The case made appears to
be that the arbitrator committed an act of misconduct or a gross
irregularity in the conduct of
the proceedings under review. The
grounds for review attack the factual findings made by the arbitrator
by reference to the evidence
and sets out what in essence are grounds
for appeal against those findings.
[8]
The primary finding that is the subject of attack in these
proceedings is the arbitrator’s conclusion that the third
respondent was dismissed for the purposes of the LRA. That being so,
the test on review is not one of reasonableness, and the
Sidumo
threshold has no application. An applicant challenging a
jurisdictional ruling made by a commissioner or arbitrator must
necessarily
make out a case to the effect that the decision was
incorrect. In
SA Rugby Players Association v SA Rugby (Pty) Ltd
and Others,
(2008) 29
ILJ
2218 (LAC), the court said the
following:
‘
[39] 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.
[40] 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. In
Benicon
Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others
(1994)
15 ILJ 801 (LAC)
at
804C-D, the old Labour Appeal Court considered the position in
relation to the Industrial Court established in terms of
the
predecessor to the current Act. The court held that the validity of
the proceedings before the Industrial Court is not dependent
upon any
finding which the Industrial Court may make with regard to
jurisdictional facts but upon their objective existence. The
court
further held that any conclusion to which the Industrial Court
arrived on the issue has no legal significance. This means
that, in
the context of this case, the CCMA may not grant itself jurisdiction
which it does not have. Nor may it deprive itself
of jurisdiction by
making a wrong finding that it lacks jurisdiction which it actually
has. There is, however, nothing wrong with
the CCMA enquiring whether
it has jurisdiction in a particular matter provided it is understood
that it does so for purposes of
convenience and not because its
decision on such an issue is binding in law on the parties…
[41] The question before the court a
quo was whether on the facts of the case a dismissal had taken place.
The question was not
whether the finding of the commissioner that
there had been a dismissal of the three players was justifiable,
rational or
reasonable. The issue was simply whether objectively
speaking, the facts which would give the CCMA jurisdiction to
entertain the
dispute existed. If such facts did not exist the CCMA
had no jurisdiction irrespective of its finding to the contrary.’
This
approach has been applied by the LAC in at least two subsequent
decisions - see
De Milander v Member of the Executive Council for
the Department of Finance: Eastern Cape & others
(2013) 34
ILJ
1427 (LAC);
Western Cape Education Department v General
Public Service Sectoral Bargaining Council and Others
(2013) 34
ILJ 2960 at [17] – [18].
[9]
The fact that the applicant has failed to plead its case on the
proper basis is in itself a reason for this application to be
dismissed. Even if I were to disregard the founding affidavit and
approach the application on the basis of whether or not the
arbitrator’s decision that the applicant had been dismissed is
correct, this would make no difference. The authority referred
to by
the arbitrator makes clear what is a well-established principle
frequently applied in this court – i.e that an employer
may not
rely on a contractual term to circumvent its obligations to act
fairly and in particular, to dismiss an employee only after
having a
substantively good reason to do so and after following a fair
procedure. The ‘deemed’ or ‘automatic’
termination of employment principle to be found in clause 4 of the
third respondent’s contract of employment means no more
than
that provision which entitles the applicant simply to give notice of
termination of employment. In other words, a contractual
term such as
that referred to cannot trump the statutory protections extended to
employees in relation to their security of employment.
[10]
The authority referred to by the arbitrator, and in particular
Jammin
Retail (Pty) Ltd v Mokwane & others
(2010) 31
ILJ
1420
(LC) make it abundantly clear that the automatic termination of
employment on account of protracted absence principles such
as that
incorporated into section 14 of the Employment of Educators Act and
section 17 of the public service act have no place
in the public
sector. This is particularly so, as the Labour Appeal Court observed
in the
SA Broadcasting Authority
case referred to above where
it is possible for the employer to trace the employee concerned and
to establish a disciplinary hearing
to ascertain the reason for
absence.
[11]
For that reason, I’m not persuaded that the arbitrator’s
decision was incorrect. In so far as the applicant relies
on the
unreasonableness of the arbitrator’s decision in relation to
remedy, it should be recalled that this court is entitled
to
intervene if and only if the decision reached by the arbitrator is so
unreasonable that no reasonable decision-maker could come
to that
decision. In the present instance, the arbitrator had specific regard
to relevant factors including the personal circumstances
of the third
respondent, the period of his employment the manner in which he was
dismissed and the fact that he had been unemployed
since September
2011. There is nothing unreasonable, in my view, about the decision
to which the arbitrator came.
I
make the following order:
1.
The
application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION:
For
the applicant: Adv. MD Teffo, instructed by RS Ntloedibe Attorneys
For
the third respondent: In PersonRetrenchment, being as it is a no
fault dismissal, inevitably generates feelings that might range
from
dissatisfaction to resentment to outright hostility.