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[2015] ZALCJHB 306
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Air Traffic Navigation Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1383/12) [2015] ZALCJHB 306 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 1383/12
In the matter between:
AIR TRAFFIC
NAVIGATION SERVICES (PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
First Respondent
NASIMA RAFFEE
N.O.
Second Respondent
WILFORD WANDEKHA
MKHANDAWIRE
Third Respondent
VIRUTAL HR (PTY)
LTD t/a CONTRACT ACCOUNTS
Fourth Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE, AJ
Introduction:
[1]
This application was brought before the Court in terms of section 145
of the Labour Relations Act
[1]
(the LRA). The Applicant seeks an order to review and set aside the
award dated 28 May 2012 issued by the Second Respondent
(Commissioner)
under case number GAJB33921-11.
[2] In the award, the
Commissioner dismissed preliminary points raised on behalf of the
Fourth Respondent and found that the Third
Respondent (Mkhandawire)
was dismissed by the Applicant, which dismissal was procedurally and
substantively unfair. The Commissioner
had also ordered that
Mkhandawire be reinstated by the Applicant, and awarded him back-pay
in the sum of R164 475.00.
[3] An issue pertaining
to the need for an application for condonation in respect of the
delay in respect of the launching of the
review application and
non-compliance with the provisions of Rule 7A (6), and Rule 7A
(8) (b) notice was raised by Mkhandawire.
Nevertheless, his counsel
submitted that the matter could be dealt with on the merits.
Condonation in respect of the late filing
of the transcribed record
of proceedings is accordingly granted.
Background:
[4]
The Applicant was a client of the Fourth Respondent (a TES).
Mkhandawire was employed by the TES as a bookkeeper with effect
from
20 February 2008, and thereafter his services were offered to the
Applicant by the Fourth Respondent for a reward. Thus a
tripartite
relationship existed between Mkhandawire, the TES and the Applicant.
[5] The Applicant had
advertised a permanent position of bookkeeper in January 2011. At the
time, Mkhandawire was employed by another
company, Macsteel. He
applied for the position advertised by the Applicant, was interviewed
and found to be most suitable. According
to the Applicant, his
appointment was subject to him providing proof of his qualifications.
[6] On 10 February 2011,
an e-mail was sent to him by Corney Mazin (his agent from the TES),
which was also copied to one of the
Applicant’s managers,
Makaya, informing him that he was successful in his application and
should thus resign from Macsteel
in order to take up the position
with the Applicant. In the e-mail, Mazin had also informed
Mkhandawire that his temporary assignment
with the Applicant was
confirmed starting from 14 February 2011, and that he would be
permanently employed with effect from 1 March
2011
[7] In February 2011 the
Applicant had requested Mkhandawire and the TES to submit proof of
his qualifications. These however were
not forthcoming according to
the Applicant. As at 3 March 2011, the proof of qualifications had
not been submitted. As a result,
the Applicant refused to offer
Mkhandawire a contract of employment, and had instead offered the
position to the second best candidate
that was interviewed.
[8] According to the
Applicant, when Mkhandawire failed to provide proof of his
qualifications, it had entered into another agreement
with the TES
for the purposes of placing him on another assignment for a period of
three months. That contract was to expire at
the end of May 2011. As
the new appointment had not been made, an agreement was entered into
with the TES for a further three months
period expiring on 21 August
2011. This was however according to the Applicant was done without
proper authorisation, and the manager
who extended the contract has
since been disciplined and dismissed. The extension however went into
September 2011 in order to
enable Mkhandawire to do a proper handover
to the new candidate appointed in the permanent position.
[9] The new candidate
commenced her employment with the Applicant on 1 September 2011, and
Mkhandawire had refused to do a handover.
The Applicant then informed
the TES that Mkhandawire’s services would not be utilised
during the month of September 2011
as a result of his refusal to do a
handover.
[10] Mkhandawire
initially referred an alleged unfair dismissal dispute against the
TES to the CCMA under case number GAJB23826-11,
and alleged that he
was dismissed on 31 August 2011. Arbitration proceedings in respect
of this dispute were held on 27 October
2011. In the award issued on
2 November 2011, Commissioner Sibongiseni Sithole found that
Mkhandawire was not dismissed by the
TES when a contract between the
parties came to an end on 17 September 2011.
[11] On or about 30
December 2011, Mkhandawire then referred another unfair dismissal
dispute against the Applicant to the CCMA.
He alleged that he was
dismissed by the Applicant on 16 August 2011 for unknown reasons and
sought compensation. That referral
was out of time and Mkhandawire
had also applied for condonation. Condonation appears to have been
granted as the matter came before
the Second Respondent for
arbitration.
The
arbitration proceedings:
[12] The issues before
the Commissioner were the following;
a)
Whether
or not the Applicant had employed Mkhandawire;
b)
If
it is found that Mkhandawire was employed by the Applicant, whether
or not he was dismissed by it (Applicant);
c)
Since
Mkhandawire had also cited the TES as a party to the dispute, whether
the matter against the TES was
res
judicata
in view of the award issued under GAJB23826-11.
[13] Evidence at the
arbitration proceedings was presented by Mkhandawire and Mazin. The
Applicant had called upon its then acting
Senior Manager in its HR
Department, Randa, Ndlovu its Chief Financial Officer, Ngobese the HR
Manager to testify on its behalf.
Having heard the evidence, the
Commissioner in her analysis made the following findings;
13.1
The dispute against the TES was
res
judicata
in view of the award issued under case number GAJB23826-11 where it
was found that “The Second Respondent (TES) was found
not to be
the Applicant’s (Mkhandawire) employer”
[2]
.
13.2
The documentary evidence in the form of Mazin’s e-mail of 10
February 2011 to both Makaya and Mkhandawire
indicated that the
latter was employed by the Applicant; if this was not the case Makaya
ought to have immediately notified Mazin
of that fact.
13.3 At
no stage was Mkhandawire informed that his position was invalid on
the basis that he was not properly
employed by Makaya.
13.4
Mkhandawire had submitted the copies of his qualifications as
requested.
13.5 An
adverse inference was to be drawn from the fact that the Applicant
failed to call upon Makaya to testify
on its behalf to refute that
she had appointed Mkhandawire.
13.6 It
was ‘common cause’ that Mkhandawire was dismissed on 2
September 2011 after he failed to train
the new employee appointed to
his position. He was not charged or called to a hearing and was
simply told to return on 5 September
2011. The evidence indicated
that Mkhandiwe’s dismissal was procedurally and substantively
unfair.
Grounds
of review and evaluation:
[14] It was submitted on
behalf of the Applicant that the Commissioner committed a gross
irregularity in the conduct of proceedings
and exceeded her powers.
The gross irregularity related to the mistake of law concerning the
issue that the matter in respect of
the TES was
res judicata
,
and her failure to consider the material put before her.
Did
the Commissioner commit a mistake of law?
[15]
When it is alleged that a Commissioner misapplied the law to a
particular matter, the implication is that there was gross
irregularity in the conduct of proceedings as contemplated in section
145(2) (a) (ii) of the LRA. It can be accepted as trite that
not
every error in law committed by a Commissioner would vitiate an
arbitration award to justify interference by the reviewing
court.
Thus, it is only in circumstances where the error of law is so
material that it denies the other party a fair hearing that
the
reviewing court would interfere with the award. To the extent that it
can be established that the Commissioner failed to apply
his or her
mind to the relevant issues before him or her, the court is entitled
to intervene
[3]
.
[16]
In regards to the alleged mistake of law, it was submitted that in
regards to the first award,
the
Commissioner had found that there was no dismissal and the referral
was dismissed in circumstances where the facts were substantially
the
same as in the subsequent referral. In respect of the second award
under review, it was submitted that the Commissioner nevertheless
stated that the TES had raised a point
in
limine
that the matter against it was
res
judicata
without making a proper determination in that regard.
[17] Mkhandawire
according to the Applicant was employed by it in terms of section
198, and the termination of an agreement between
the Applicant and
the TES led to the termination of the contract. To the extent that in
the first referral the Commissioner had
found that Mkhandawire was
not dismissed but was on a fixed term contract with the TES, this
should have been the end of the matter,
and it was irrelevant that
the Applicant was not cited in that matter. Furthermore, it was
submitted that to the extent that the
Commissioner had partially
applied the principles related to
res judicata
, it was
submitted that the mistake of not upholding the preliminary point
raised was flawed.
[18]
In considering whether a plea of
res
judicata
is sustainable, the Court or tribunal must be satisfied that the
following requirements are met
[4]
,
viz
;
a)
That
there has already been a prior judgment;
b)
The
parties to the dispute were the same;
c)
The
relief claimed is the same as the previous one in material respect;
d)
The
issue(s) in dispute are the same as is the
issue
of law raised
.
[19]
In the first referral under GAJB23826-11, Mkhandawire had referred an
alleged unfair dismissal dispute against the TES. In
the award
[5]
under background, the Commissioner had stated that Mkhandawire was
employed by the TES on 28 February 2008 and was allegedly dismissed
on 31 August 2011. The issue the Commissioner had to decide was
whether there was an employment relationship between Mkhandawire
and
the TES; whether Mkhandawire was dismissed, and if so whether the
dismissal was procedurally and substantively fair.
[20] In analysing the
evidence before, Commissioner Sithole stated that she was satisfied
that Mkhandawire was employed by the TES
on a fixed term contract
which came to an end on 17 September 2011; that the TES had arranged
with the client (ATNS) (Applicant
in this case) a contract for six
months, and understood that he was employed on a fixed term contract,
and therefore Mkhandawire
had not established the existence of a
dismissal (A dismissal by the TES).
[21] It needs to be
pointed out that the Commissioner in the second award misinterpreted
the findings of the first Commissioner
by stating that the former had
found that Mkhandawire was found not to have been employed by the
TES. At paragraph 14 of the first
award, it is specifically stated by
Commissioner Sithole that;
“
Based on
the evidence presented I am satisfied that the applicant
(Mkhandawire) was employed by the respondent – Contracts
Account (The TES) on a fixed term contract which came to an end on 17
September 2012”
[6]
[22] Notwithstanding the
second commissioner’s misinterpretation of the first
commissioner’s findings, in considering
whether the dispute
between Mkhandawire and the TES was
res judicata
in respect of
the second referral under the award which is the subject matter of
the review application, it should therefore be
accepted to the extent
that he had made a claim of alleged unfair dismissal against the TES,
that dispute had been disposed of
in the first award, with a finding
that even though he was employed by the TES, it did not dismiss him.
[23]
The first duty of the Court is to compare the relevant facts of the
two cases upon which reliance is placed for the contention
that the
cause of action (in the extended sense of an essential element) is
the same in both cases
[7]
. The
issue before Commissioner Sithole was whether Mkhandawire was
employed by the TES. The finding that Mkhandawire was not dismissed
was made in respect of the Applicant as it was not cited as a party
to the proceedings.
[24] To the extent that
the issue of
res judicata
was raised in the second arbitration
proceedings by the TES, and further to the extent that the matter in
respect of the TES had
been disposed of in the first award, the
Commissioner, despite the misinterpretation of the findings of the
first award was correct
in upholding the point
in limine
in
favour of the TES, since Mkhandawire had cited the TES in the second
referral. That dispute did not involve the same parties.
To this end,
since the first referral did not involve the Applicant in this case,
and further since the issue for determination
was the alleged
dismissal or existence of an employment relationship between
Mkhandawire and the TES, it cannot be said that the
Commissioner
misapplied the law in upholding the point
in limine
as raised
on behalf of the TES. The Applicant in the second arbitration
proceedings had not as the TES had done, raised the same
defence of
res judicata,
and I fail to appreciate how it can be said the
Commissioner failed to uphold that point when it was not raised on
its behalf.
[25]
It is nevertheless accepted that the issues for determination before
the first Commissioner were similar to those before the
second
Commissioner, although the focus in the second arbitration was in
respect of the Applicant.
Is the award
reviewable under any grounds?
[26]
The issue before the Commissioner in the second referral was whether
or not Mkhandawire was employed by the Applicant, and
if so, whether
the Applicant had dismissed him. When faced with a review of
jurisdictional points such as those that were before
the
Commissioner, the standard of review is not that as enunciated in
Sidumo
[8]
.
The test to follow is that as expressed by Tlaletsi AJA (as he then
was) in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd
[9]
,
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. In Benicon Earthworks & Mining
Services (Pty) Ltd 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 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.”
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.’
[27] In proceedings
before the Commissioner, Mkhandawire had alleged that he was employed
by the Applicant, which the Applicant
denied. The onus was
therefore on him to prove that he was indeed an employee as envisaged
in the LRA. In the absence of
it being established that Mkhandawire
was employed, the Commissioner would have lacked jurisdiction to
determine the dispute before
her.
[28] In this judgment, it
is concluded that the findings by the Commissioner that Mkhandawire
was employed by the Applicant, and
was accordingly dismissed by it in
circumstances that were procedurally and substantively unfair cannot
be sustainable in law and
fact for the following reasons;
28.1
The Commissioner simply concluded that Mkhandawire was an employee on
the basis of the e-mail sent to him
by the TES confirming his
appointment. The Commissioner also relied on an e-mail addressed to
the Applicant’s Dumisani Baai
and representative in the second
arbitration proceedings by ‘Labour Bulletin’. In that
e-mail, it appears that Baai
had made enquiries about withdrawing a
job offer under the subject; “
Oops we made a mistake….can
we withdraw a job offer?”
28.2
Whether a person is or was an employee or not needs to be established
from the definition of ‘
employee’
as found in section 213 of the LRA
[10]
;
from the provisions of section 200A of the LRA relating to
‘presumption as to who is an employee’; and from the Code
of Good Practice: Who is an employee?, which sets out guidelines on
the application of section 200A in the LRA.
28.3
The Commissioner in coming to her conclusions paid no regard to the
above provisions and merely relied on
the e-mails that could clearly
not have been determinative of the issue before her even on the facts
of the case.
28.4
Without even determining the legal question whether Mkhandawire was
an employee or not, it is my view that
on the facts alone, it should
have been established that he was not an employee as defined of the
Applicant for the following reasons;
28.4.1 It was common
cause that Mkhandawire was interviewed and deemed suitable for the
position. His appointment however was conditional
upon him having
submitted the required copies of his qualifications. At most,
Mkhandawire did not dispute this condition.
28.4.2 There is a dispute
as to whether Mkhandawire had furnished with the required copies of
his qualifications. The fact that
Mkhandawire had allegedly submitted
his copies in 2008 when he started does not imply that this was
sufficient for the purposes
of the new appointment following the
interview in February 2011. Nevertheless, on his own version, the
Applicant was also unable
to verify those qualifications, and it is
my view that the Applicant was within its rights to insist on copies
prior to employment
being formalised. Be that as it may, this was not
an issue that could have been simply determined on the basis of the
e-mails,
as subsequent developments indicate that no formal
employment relationship was entered into between the Applicant and
Mkhandawire
as a consequence of the copies not being provided.
28.4.3 From the award
under GAJB23826-11, it was found that Mkhandawire was employed by the
TES. That finding could not have been
ignored or contradicted unless
the award in question was reviewed and set aside. Submissions made in
Mkhandawire’s heads
of argument that he does not agree with
that award as it related to a separate issue does not in any way
assist his case. The fact
of the matter is that material
jurisdictional findings had been made in that award, which clearly
had an impact on his second referral.
28.4.4 Once it was
determined by the first Commissioner that the TES was the employer
during the period that Mkhandawire alleged
he was employed and
dismissed by the Applicant, in my view and as correctly pointed out
on behalf of the Applicant, that should
have been the end of the
matter, moreso since a dismissal as contemplated in section 186 of
the LRA could not have been established.
29.5 As
I understood the facts before the Commissioner, it was not in dispute
that between February and September
2011, Mkhandawire was placed at
the Applicant on a fixed term contract, which was terminated on 17
September 2011. It was therefore
not correct for the Commissioner to
conclude that it was ‘common cause’ that the Applicant
had dismissed Mkhandawire,
when that very issue was in dispute, and
secondly, when Mkhandawire was not an employee as defined.
29.6 In
terms of the first award, it was established that Mkhandawire had
accepted during cross examination in
that matter that he was employed
on a fixed term contract which came to an end. It therefore follows
from the first award that
the termination of Mkhandawire’s
services was as a result of the termination of his contract with the
TES.
[30] In the light of the
above conclusions, on considerations of both fact and law, it was
never established that Mkhandawire was
an employee or that he was
dismissed. The CCMA therefore lacked the requisite jurisdiction to
determine the dispute before it.
It follows that the Commissioner’s
award ought to be set aside. I am further of the view that there is
no basis upon which
a cost order can be made given the circumstances
of this case.
Order:
i.
The
arbitration award dated 28 May 2012 and issued under case number
GAJB33921- by the Second Respondent is reviewed and set aside.
ii.
The
award is substituted with an order that;
‘
The
CCMA lacks jurisdiction to determine the alleged unfair dismissal
dispute as referred by Mkhandawire.’
iii.
There
is no order as to costs.
___________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Mr. S July of Werkmans Attorneys
For the Third
Respondent:
Adv. AL Cook
Instructed
by:
Kalima Attorneys
[1]
Act 66 of 1995 as
amended.
[2]
Award at p27 of
Index to Pleadings
[3]
See
Irvin
& Johnson Ltd v CCMA & others
[2006] 7 BLLR 613
(LAC)
and
Maneche & others v CCMA and others
[2007] JOL 20281
[4]
See
Herbstein
& Van Winsen
,
The Civil Practice of the High Court and the Supreme Court of Appeal
of South Africa, 5th edition, Juta, 2009. See also of
Bafokeng
Tribe v Impala Platinum Ltd
1999 (3) SA 517
(B) at page 566F where the court held that;
“
from
the aforegoing analysis, I find that the essentials of threefold,
the
exceptio
res judicata
are threefold, namely that the previous judgement was given in an
action or application by a competent court (1) between the
same
parties,(2) based on the same cause of action..,(3) with respect to
the same subject-matter or thing. Requirement 2 and
3 are not
immutable requirements of res judicata....conversely, in order to
ensure overall fairness, (2) or (3) above may be
relaxed. A court
must have regard to the object of
exceptio
res judicata
that it was introduced with the endeavour of putting a limit to
needless litigation and in order to prevent the recapitulation
of
the same thing in dispute in diverse action, with the concomitant
deleterious effect of conflicting and contradictory decisions.”
[5]
Annexure “SDB11”
to the founding affidavit
[6]
At page 49 of the
indexed pleadings Annexure “SDB11”
[7]
Janse van
Rensburg & others NNO v Steenkamp & Another v Myburgh &
Others
2010
(1) SA 649
(SCA) at paragraph [25]
[8]
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC). See also
Universal
Church of the Kingdom of God v Myeni and Others
(DA 3/14)
[2015] ZALAC 31
(28 July 2015) at para [27] where the LAC
held that;
‘
Given
the fact that the review proceedings concerned a ruling by the
commissioner on the CCMA jurisdictional challenge, the review
test
of constitutional reasonableness in terms of the Sidumo decision,
does not apply. It is said that the value judgment of
the
commissioner in a jurisdictional ruling has no legal consequence and
that it is only a ruling for convenience. Therefore,
the applicable
test is simply whether, at the time of termination of his
relationship with the Church, there existed facts which
objectively
established that Mr Myeni was indeed the employee of the Church. If,
from an objective perspective, such jurisdictional
facts did not
exist, the CCMA did not possess the requisite jurisdiction to
entertain the dispute, regardless of what the commissioner
may have
determined.’
[9]
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at paras 39-41
[10]
“
employee”
means –
(a)
any person, excluding an independent contractor, who works for
another person or for the State and who receives, or
is entitled to
receive, any remuneration; and
(b) any other person who in any
manner assists in carrying on or conducting the business of an
employer.”