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[2015] ZALCJHB 383
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Simba v Mothoka's Trading and Others (JR1384/10) [2015] ZALCJHB 383 (29 October 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case No: JR1384/10
In
the matter between:
HONEST
BRANDY
SIMBA
Applicant
and
MOTHOKA’S
TRADING
First Respondent
BRAAM
VAN
WYK
Second Respondent
MARGARET
COETZEE
Third Respondent
Heard:
02 July 2015
Delivered:
29 October 2015
JUDGMENT
SNIDER, AJ
[1]
This is an application in terms of which
the applicant seeks to review and set aside an arbitration award
(‘the award”)
dated 24 May 2010 issued by the
commissioner (“the commissioner”). The applicant further
seeks costs or alternative
relief.
[2]
It appears that the applicant was employed
by the first respondent as a boiler-maker for two successive periods
of two months on
what were allegedly fixed term contracts. After the
end of the period specified in the second contract, when the first
respondent
would not allow the applicant to continue tendering his
services, the applicant referred an unfair dismissal dispute to the
commission
for conciliation, medication and arbitration (‘the
CCMA”).
[3]
The
applicant’s case at the CCMA was apparently based on section
186(1)(b) of the Labour Relations Act
[1]
(“the LRA”) which states – ““Dismissal”
means that:
‘
(b)
An employee reasonably expected the employer to renew a fixed term
contract of employment
on the same or similar terms but the employer
offered to renew it on less favourable terms, or did not renew it…’
[4]
At the outset, I must state that both the
manner in which the arbitration was conducted by the commissioner and
the award leave
much to be desired.
[5]
As will be set out below, the commissioner
demonstrated bias, xenophobia, and woeful disrespect for the
applicant.
[6]
As a
point of departure, reference is made to the transcript of the
arbitration.
[2]
[7]
A perusal of the transcript as a whole
demonstrates that the commissioner descended into the arena to a far
greater degree than
is permissible and made it virtually impossible
for the applicant to properly articulate his case; thus abrogating
the fundamental
natural justice principle,
audi
alteram partem.
[8]
The commissioner, in his persistent
diatribe directed at the applicant, not only derailed him from giving
evidence in a proper orderly
fashion, but in addition, advises him as
to legal principles, which advices are patently incorrect. For
example, he says to the
applicant:
‘
Only
when you prove to me that you were dismissed then you have to cross
the second level to prove to me that it was unfair. I am
brutally
honest with you, you have not remotely convinced me that you were
dismissed…’
[3]
[9]
The commissioner was woefully misguided in
this regard. It is trite, and emerges from section 192(2) of the LRA,
that it is for
the employer, not the employee, to prove the fairness
of a dismissal once same has been established.
[10]
The
commissioner goes to the extent of threatening the applicant with
“content of the commissioner”. I take this to
mean
contempt of the commission.
[4]
There seems to be no conceivable basis upon which this threat could
have been made on the strength of what is contained in the
transcript.
[11]
It is correct that a perusal of the
transcript does not reveal a coherent body of evidence by the
applicant indicating why he had
a reasonable expectation that his
employer would renew his fixed term contract.
[12]
However, bearing in mind the manner in
which this arbitration was conducted by the commissioner, it is
hardly surprising that the
evidence was not produced. The applicant
was severely hampered in giving evidence by the commissioner’s
constant intervention
and badgering.
[13]
The initial fixed term contract was from 19
October to 19 December and it was then renewed from 20 December to 20
February.
[14]
The first respondent elected not to lead
any evidence and, accordingly, there is no explanation as to why the
contract was renewed
on one occasion and then not subsequently
renewed. The absence of an explanation should, at the very least,
have sensitised the
commissioner in respect of what evidence he may
have expected and what the possible point of departure for his
enquiry should have
been.
[15]
Immediately
after the applicant is put under oath, the commissioner commences to
not only cross-examine him but also prescribe to
him precisely how he
wants him to answer the commissioner’s questions.
[5]
The commissioner vigorously and unfairly cross-examined the
applicant.
[6]
[16]
Coupled
with the above, there is evidence which the commissioner, in his
haste to dismiss the applicant’s case, overlooked,
alternatively failed to appreciate the significance of. If the
commissioner had decided to descend into the arena to the extent
that
he did, he should also have assisted the applicant in properly
presenting his evidence. The applicant clearly states that
one, Mr
Makhe (“Makhe”), apparently a director of the first
respondent, said words to the effect that the applicant’s
contract was over and that ‘you were complaining about so and
so…’
[7]
[17]
It seems to me, although the commissioner
has made it very difficult to determine with any precision, that what
the applicant was
saying was that his fixed term contract was not
renewed because he had complained about various issues, which is
true.
[18]
He had in fact complained to the Metal and
Engineering Industry Bargaining Council (“the MEIBC”) in
relation to payments
due to him by the first respondent.
[19]
This
should have been an important consideration for the commissioner to
take into account. He completely ignored it. Again, it
must be borne
in mind that the first respondent elected not to have any evidence
led on its behalf.
[8]
[20]
Higher
up in the same paragraph the applicant gives a reason as to why he
may have had a reasonable expectation of the renewal of
his contract
when he says ‘the other guys they worked without a contract
even ‘til now’.
[9]
[21]
The
commissioner also repeatedly advises the applicant that he will have
an opportunity to cross-examine the first respondent’s
witness
(es)
[10]
without explaining that this may not be the case. This would clearly
mislead a lay applicant. As it was, the first respondent led
no
witnesses so there was no opportunity to cross-examine.
[22]
Having given that brief synopsis of the
transcript and the background to this matter, I now turn to the
grounds of review articulated
by the applicant in his founding
affidavit.
[23]
In the affidavit, unsurprisingly, given the
torrid time given to the applicant at the arbitration, he is far more
articulate about
his complaint. In the first instance, he refers to
the complaints that he has against his employer and his attempts to
address
them through the MEIBC and the Labour Department.
[24]
The answering affidavit lacks any
particularity at all and does not constitute what would be considered
a proper affidavit dealing
with the allegations set out in the
applicant’s affidavit
ad seriatim.
The evidence of the applicant is,
accordingly, largely unchallenged. Similarly, the failure of the
first respondent to lead a witness
at the arbitration left the
allegations concerning Makhe’s alleged statement and other
employees not working on fixed term
contracts uncontradicted.
[25]
The applicant makes the allegation that the
commissioner, before the commencement of the arbitration, told him
that the CCMA ‘is
not money “come come” or an open
road to Bulawayo Zimbabwe’.
[26]
The applicant is a Zimbabwean. It is trite
that employees who are not South African have full access to the
South African Labour
Dispute Resolution processes.
[27]
Bearing in mind what is set out in the
award, I am inclined to believe the applicant in relation to this
allegation.
[28]
The
applicant also complains of discrimination by the commissioner.
[11]
The applicant’s complaint is that:
‘
If
you are a citizen of Zimbabwe with a valid passport you don’t
get a fair hearing according to section 23(1) according to
the
constitution of Republic of South Africa , you are not represented
you are even brushed aside as if xenophobia is occurring
at the
deepest for conciliation mediation and arbitration.’
[29]
Clearly,
what the applicant is complaining of, when distilled to its basic
core meaning, is that the commissioner was biased. There
is a second
document in the bundle which is also in the form of an affidavit but
not on the
pro
forma
document provided by this court. It is, however, very much in the
same vein as the founding affidavit. Again, the point is made
that
the contract was not renewed because the applicant challenged his
alleged underpayment.
[12]
He further makes the point again that the company has employees
working without contracts.
[13]
Both of these issues were overlooked by the commissioner.
[30]
The
applicant once again states that any employee raising a complaint
will be dismissed.
[14]
He also says that the commissioner did not give him a chance to
explain the whole story and to give him the documents relating
to his
dismissal by Makhe. He complains that the CCMA dismissed his case
without a proper hearing being held.
[31]
I now
turn to the award handed down by the commissioner.
[15]
Without referring to the evidence which may have supported the
applicant’s case as set out above, the commissioner came to
the
conclusion that the applicant did not have a reasonable expectation
that his contract of employment would be renewed.
[32]
Apart
from coming to this conclusion without having regard to important
evidence and conducting the arbitration in the manner set
out above,
the commissioner makes certain comments which are nothing short of
xenophobic, bigoted and disrespectful. For example
he states:
[16]
‘
I
stand amazed at the audacity of this foreign national to then
arrogantly prescribe to his former employer on page 25 of exhibit
1
that he will still REPORT for duty, and adding insult to injury, to
INSTRUCT his former employer to pay him monies which he undeniably
was not entitled to.’
[33]
Not only do the above have absolutely
nothing to do with the issues in respect of which the second
respondent was obliged to make
a decision but they are also intended
as nothing more or less than an attack on the applicant.
[34]
The
commissioner gratuitously includes the following in his award:
[17]
‘
I
purposely, yet entirely respectfully, attach the following excerpt
specifically for Mr Simba to ponder on as he contemplates his
future
in the robust business world in South Africa which may differ
somewhat from the scenario in Zimbabwe. Marcus C commented
as follows
on the stressful ‘nature’ attributed to the modern
‘workplace’ in
Visser
v Amalgamated Roofing Technologies t/a Barlow World
(2006) 27 ILJ 1567 (CCMA):
“
A
modern workplace is not a heavenly garden of smiling
Buddha’s
focused on the welfare of others
.
More often than not it presents the contrary picture of a highly
stressful and robust environment in which the pressures and demands
to perform on staff and, even more so, members of management to carry
the can, can on occasion contribute to managers conducting
themselves
in a manner that is less desirable. Managers are after all not
infallible. They are subject to human limitations like
the rest of
us, and cannot reasonably be expected to conform to the standards of
a saint in their conduct towards staff…”’
[35]
Further,
the commissioner has the following to say:
[18]
‘
Mr
Simba should regard himself as fortunate that I have elected not to
issue costs against him personally for pursuing a frivolous
and
vexatious matter such as this at the CCMA. More so – as the
South African taxpayer has to bear the full costs for Mr
Simba’s
case at the CCMA.’
[36]
Again, this is nothing short of bias and
xenophobia. None of the above have any place in a CCMA award, and
are, to say the very
least, extremely distasteful to any person who
associates him or herself with the values enshrined in the
Constitution.
[37]
It is also noteworthy that the commissioner
states that it is only with reluctance that he does not make an order
for costs against
the applicant. Again, this demonstrates his bias.
[38]
There
is a rather peculiar document which appears towards the very end of
the record bundle which, on the face of it, is a copy
of the
award.
[19]
[39]
It seems as if the document may be a
version of the award which was edited by someone. It is interesting
that on page 110, paragraph
22 the words “will still report”
and ‘instruct” are in bold capitals, underlined, whereas
in the final
award referred to above the words are in normal capitals
and not underlined. The comment appears under paragraph 22 on page
110
“Please don’t use bold caps the language is already
rather strong” there is then another correction underneath
that. Then in paragraph 31 on page 113, there is similarly an editing
which is largely carried through to the final award and the
editorial
comment is “Please Braam tone it down a bit”.
[40]
I am not entirely sure what to make of
these editorial comments. I point them out merely to illustrate that
the commissioner could
not have been unaware of the perception that
his conduct and the award created.
[41]
This review application should not have
been opposed by the first respondent. The award and the conduct of
the commissioner are
manifestly outside the bounds of what can be
regarded as acceptable, just, fair and reasonable.
[42]
I also find it somewhat astonishing that
the commissioner has elected not to file an affidavit and allow
allegations of the nature
contained in the applicant’s
affidavits to go unchallenged.
[43]
Whilst there are procedural difficulties as
far as this review is concerned, I was enjoined, in the first
respondent’s heads
of argument, to deal with the matter on its
merits, which I have duly done.
[44]
There is no possible basis, in justice and
when applying the relevant principles and the fundamental requirement
for a hearing that
at least meets the standard of
audi
alteram partem
, that the award can
survive a review application.
[45]
As a result, at least to a serious degree
of the commissioner’s conduct as set out above, there is
insufficient evidence to
place me in a position to substitute the
commissioner’s award.
[46]
I have taken into consideration the fact
that the first respondent failed to file a proper answering
affidavit.
[47]
In the premises, I make the following
order:
47.1.
The award is set aside;
47.2.
The matter is referred back to the CCMA for
adjudication by a commissioner other than the second respondent; and
47.3.
The first respondent is to pay the costs of
this review.
___________________________
Snider, A J
Acting
Judge of the Labour Court
Appearances
For
the Applicant:
In person
For
the First Respondent: Advocate Roeloffs
Instructed
by:
De Villiers and Du Plessis Attorneys
[1]
Act 66 of
1995 as amended
[2]
Page 54 of
the index of “record”
[3]
Transcript
page 68 lines 10 to 15
[4]
Transcript
page 79 lines 15 to 20.
[5]
Transcript
page 62 lines 7 to 16 ff.
[6]
Transcript
page 70 lines 15 to 20.
[7]
Transcript
page 66 lines 7 to `3.
[8]
Transcript
page 69 lines 17 to page 70 line 2.
[9]
Transcript
page 66 lines 7 to 13.
[10]
Transcript
page 79 lines 15 to 20, page 81 lines 10 to 14.
[11]
Page 8 of
the application bundle.
[12]
Page 12 of
the application bundle.
[13]
Transcript
page 66 lines 7 to 13.
[14]
Page 12 of
the application bundle.
[15]
Pages 1 to
13 of the record bundle.
[16]
Page 6 of
the application bundle para 22.
[17]
Page 8 para
29 onto page 9.
[18]
Page 9 para
31.
[19]
Page 105 to
114.