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[2015] ZALCCT 29
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Wayi Wayi and Another v Metal And Engineering Industries Bargaining Council and Others (C439/2014) [2015] ZALCCT 29 (12 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
C439/2014
DATE: 12 MARCH 2015
Not Reportable
In the matter between:
ALI KIMPALA WAYI
WAYI
..........................................................................................
First
Applicant
FREDDY MBUYI
KABUNDA
...................................................................................
Second
Applicant
And
METAL AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL
..........................................................................................
First
Respondent
COMISSIONER SH
CHRISTIE
............................................................................
Second
Respondent
TRYMORE INVESTMENTS 117
CC
......................................................................
Third
Respondent
Date heard: 25 November 2011
Delivered: 12 March 2015
JUDGMENT
RABKIN-NAICKER J
[1] This is an opposed application to
review and set aside an arbitration award under case number MEWC 8629
and 8634 dated the 2
June 2014.
Background
[2] First applicant was employed by the
third respondent (the company) as an operator from August 2009.
Second applicant was also
employed in that capacity as from 2001. On
21 August 2013, a notice was placed on the company’s
noticeboard stating that
all workers were to be put on short time for
the rest of the year and each week workers were to be informed by
notice on the board
which workers were required to work.
[3] On 28 November 2013, a new notice
containing the roster for 2 December 2013 was put up. The employees
were aware that if their
names were not on the roster, they need not
come to work the following week. Prior to the notice of 28 November,
the first applicant
had not been put on short time although the
second applicant had as had many other employees. About a week before
the 28th November
2013, the first applicant and other employees
discussed various complaints they had about the way short time was
being organized.
The first applicant made notes and hoped to get his
colleagues to sign the notes he typed out planned to give these to
managing
member of the employer on 29 November. The applicants
claimed at arbitration that they had learned from the factory manager
that
the owner was planning to dismiss them, and another staff
member, who also had some complaints.
[4] The applicants’ evidence was
that the owner had told them that he did not have work for them and
they should look for
another job. They subsequently referred a
dispute to the first respondent on 2 December 2013. The referral
mentioned the Provident
fund and various irregularities regarding
short time, but did not refer to their dismissal. On the 6th December
2013, when the
company became aware that a dispute been referred to
the Council, the first applicant was called by a Ms Joemat to enquire
why
he was not at work. According to her, he refused to discuss it
and put the phone down on her.
[5] The company’s operations had
shut down for the summer recess on 13 December 2013 and reopened on
13 January 2014. On 21
December 2013, First Applicant went to Edgars
Clothes Store. He had earlier applied for a card and had given his
employer’s
details as third respondent. He was told that they
would have to confirm his employer’s details. His evidence was
that the
Edgars staff member called him later in the day to say he
had phoned third respondent and a man told him that he was no longer
working at Trymore “as his contract had expired”.
[6] On 28 January 2014, both applicants
lodged unfair dismissal disputes claiming they had been dismissed on
28 November 2013 and
applied for condonation. It is recorded by the
Arbitrator that on 28 January 2014 the company wrote letters to both
applicants
requesting them to return to work. First applicant claimed
that he never received the letter, whilst second applicant conceded
that he did. A copy of the letter is attached to their condonation
application in the record before me. It is also recorded by the
arbitrator that reinstatement was offered to the applicant’s at
the condonation hearing, which they rejected. After the condonation
hearing, the applicants went to the company to collect their UIF
forms. At the Department of Labour they were told they were not
eligible for any benefits because the respondent had recorded the
reason for their termination as “resigned”.
[7] It was the commpany’s case
that the applicants were never dismissed. They were told “there
was no work” on
2 December i.e. because of the short time. The
arbitrator made a finding that the applicants had failed to prove
that they had
been dismissed. She stated that the applicant’s
had offered no explanation for their rejection of the offer of
reinstatement
in December, January and at the condonation hearing.
Evaluation
[8] The applicants have formulated
their grounds of review in their founding affidavit verbatim from
those contained in section
145 of the LRA. Many of the documents they
have filed in this application do not comply with the rules of court.
They were resolute
in regard to representing themselves in court and
have obviously invested a great deal of time and emotion into their
case. In
their submissions before me they made a number of
allegations against the arbitrator who they argued was biased,
exchanging looks
with the attorney for the company respondent, and
pushing the applicants to move along with their presentation. None of
these amount
to a reasonable apprehension of bias.
[9] If regard is had to the award and
the record of the proceedings there is simply no basis to review this
award. The arbitrator
recorded the evidence before her with care. It
was common cause that third respondent had been putting employees on
short-time
for some time. The letters telling the applicants to
return to work were attached to their applications for condonation.
However
first applicant denied at his arbitration that he had ever
had sight of the document. His submissions amounted to a series of
conspiracy
theories against the employer, the MEIBC and the
arbitrator. No basis in law was established to review the award. In
all the circumstances
I make the following order:
Order:
1. The review application is dismissed.
H. Rabkin-Naicker
Judge of the Labour Court
Appearances:
Applicants: In person
Third Respondent: R. Claasen of
Maserumule Inc