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[2015] ZALCPE 9
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Visko Sea Products (Pty) Ltd v Fourie and Others (PR01/13) [2015] ZALCPE 9 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
no: PR01/13
DATE:
13 FEBRUARY 2015
Not
Reportable
In
the matter between:
VISKO
SEA PRODUTS (PTY)
LTD
................................................................
Applicant
And
JJ
FOURIE
............................................................................................
First
Respondent
COMMISSIONER
BULELANI BUSAKWE
.................................
Second
Respondent
STATUTORY
COUNCIL FOR THE SQUID AND
RELATED
INDUSTRIES OF SOUTH AFRICA
...............................
Third
Respondent
Heard:
28 January 2014
Delivered:
13 February 2015
Summary:
The provisions of section 192(1) that the employee must establish the
existence of a dismissal are peremptory. The arbitrator’s
decision of the existence of dismissal based on the applicant’s
failure to prove that the first respondent had resigned constitutes
a
reviewable irregularity.
JUDGMENT
LALLIE,
J
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(the
arbitrator) and replacing it with a finding that the first respondent
resigned voluntarily from the applicant’s employment.
It is
opposed by the first respondent.
Factual
background
[2]
The first respondent worked for the applicant as a skipper for about
13 to 14 years before the employment relation was terminated.
Aggrieved by the termination, he referred an unfair dismissal dispute
to the third respondent which was arbitrated by the second
respondent
(the arbitrator). At the arbitration, the applicant denied having
dismissed the first respondent and submitted that
he resigned. The
arbitrator, however, found that the first respondent did not resign
but was dismissed by the applicant in a manner
which was both
substantively and procedurally unfair. He ordered the applicant to
pay the first respondent compensation in the
amount of R 151 181, 44.
It is that award which the applicant seeks this court to review and
set aside.
[3]
The applicant sought to rely on a number of grounds. Firstly, it
submitted that the arbitrator committed a material irregularity
on
the manner in which he conducted the arbitration in that instead of
requiring the first respondent to prove his dismissal, he
called upon
the applicant to prove that the first respondent did not resign. The
first respondent denied and submitted that the
allegation that the
applicant’s approach constituted an irregularity was the
applicant’s irrelevant opinion which stands
to be struck out.
He added that even if the opinion is admissible, it holds no credence
as the commissioner’s reasons for
rejecting the applicant’s
version was fair and based on objectively ascertainable facts
contained in correspondence and undisputed
evidence.
[4]
Section 192 (1) of the Labour Relations Act 66 of 1995 (the LRA)
provides that in any proceedings concerning any dismissal,
the
employee must establish the existence of the dismissal. In Section
192(2), the employer is required to prove the fairness of
the
dismissal after the existence of the dismissal has been established.
[5]
It was argued on behalf of the applicant that a reading of the award
leaves one with an impression that the arbitrator required
the
applicant to prove that the first respondent had resigned and if that
was done, he would be satisfied that the first respondent
was
dismissed. The applicant sought to rely on excerpts of the award
where the arbitrator expressed the view that none of the witness
convinced him that the applicant resigned. He also made a finding
that as the first respondent did not resign, he had to determine
whether he was dismissed. The applicant argued that the arbitrator’s
reasoning was flawed in that the arbitrator was obliged
to determine
whether the first respondent had established his dismissal. As the
irregularity is fundamental and an error of law,
it constitutes
sufficient ground to have the award reviewed and set aside. The first
respondent conceded that he had the onus to
prove his dismissal, he
however, argued that one needs to prove a resignation then a
dismissal. He denied that there was any flaw
in the process and that
the letter confirming his resignation contained fabrication.
[6]
Section 192 of the LRA was interpreted thus in
State
Information Technology Agency (Pty) Ltd v Sekgobela
[1]
‘
It
is clear that section 192 provides for a two stage process in
dismissal disputes. First the employee who alleges that he/she
was dismissed must prove that there was in fact dismissal and once
the existence of the dismissal is established then the employer
must
prove that the dismissal was fair. It is clear, therefore, that the
onus to prove the existence of the dismissal lies first
on the
employee. The word “must” in section 192 means that the
provisions of the section are peremptory. The employee
must set out
the facts and legal issued which substantiate his assertion that a
dismissal occurred. Once the employee has proved
that dismissal did
take place, the onus is shifted to the employer who must prove that
the dismissal was for a fair reason such
as for instance misconduct.’
[7]
Both the applicant and the first respondent were not legally
represented at the arbitration and relied on the arbitrator to
lend a
helping hand. The arbitrator failed to apprise the first respondent
of his obligation to present facts which established
his dismissal. A
proper reading of the award reflects that the arbitrator based his
decision of the existence of the first respondent’s
dismissal
on the applicant’s failure to prove that the first respondent
resigned. He was wrong. He should have based his
decision on facts
presented by the first respondent as section 192(1) is peremptory.
Absent a decision of the existence of a dismissal
based on facts
presented by the first respondent, the arbitrator had no jurisdiction
to determine the fairness of the disputed
dismissal. His decision of
the fairness of the dismissal is a nullity. This ground, on its own,
rendered the award reviewable.
[8]
The arbitration award stands to be reviewed and set aside as the
arbitrator committed a gross irregularity which placed his
award
outside the band of reasonableness by not applying section 192(1) of
the LRA in determining the existence of the first respondent’s
dismissal.
[9]
I have considered the issue of costs. I am of the view that granting
a costs order against an employee who attempted to assert
his right
in terms of an award would not be appropriate. It would be in
conflict with the letter and the spirit of the LRA.
[10]
In the premises, the following order is made:
10.1
The arbitration award issued by the second respondent under case
number SCSI 01-2013 and dated 4 March 2013 is reviewed and
set aside.
10.2
The matter is remitted to the third respondent to be arbitrated
de
novo
by an arbitrator other than the
second respondent.
Lallie J
Judge
of the Labour Court of South Africa
Appearance
For
the Applicant: Ms Maeso of Shepton & Wylie
For
the Respondent: Ms Curtain of J&R Bester & Associates
[1]
[2012] 10 BLLR 1001
(LAC).