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[2016] ZALCJHB 90
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Sibeko v Xstrata Coal South Africa and Others (JR2189/13) [2016] ZALCJHB 90; (2016) 37 ILJ 1230 (LC) (3 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
case
no: jR2189/13
In
the matter between:
GEGI
JOSEPH SIBEKO
Applicant
and
XSTRATA COAL SOUTH
AFRICA
First Respondent
GLENCORE
HOLDINGS (PTY) LTD
Second
Respondent
WILFRED
NOKA NKGOENG
N.O.
Third
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION (CCMA)
Fourth Respondent
Heard
:
15 January 2016
Delivered
:
03 February 2016
Summary:
CCMA finding employee’s dismissal substantively unfair.
Notwithstanding that the employee seeks
reinstatement as primary
remedy, CCMA finds that the employee/employer trust relationship has
broken down as a result of the employee’s
conduct during the
CCMA arbitration and orders 6 months compensation.
Held
that Sections 193 (1) and (2) of the Act, are peremptory. None of the
situations set out in Section 193 (2) (a) – (d)
were present,
and the CCMA erred in law in not reinstating the employee in terms of
Section 193 (1) (a).
Held
that the CCMA cannot sanction an employee for his conduct during CCMA
proceedings by not granting reinstatement in terms of
Section 193 (1)
(a) where it is sought as primary remedy for a substantively unfair
dismissal. There are other remedies such as
costs orders and contempt
proceedings.
Held
that the CCMA in not reinstating the Applicant, having found that his
dismissal was substantively unfair, but instead ordering
that he be
paid compensation of six months, was not a decision that a reasonable
decision maker could have come to and it should
be set aside, and
substituted with an order that the Applicant be reinstated in terms
of Section 193 (1) (a) of the Act, retrospective
for 15 months.
JUDGMENT
HARDIE,
AJ
[1]
This is an application for review brought
in terms of section 145 of the Labour Relations Act 66 of 1995 (“the
Act”)
on 10 October 2013, in which the Applicant seeks to
review and set aside the award as it relates to relief, which was
handed down
by the Third Respondent (“the Commissioner”)
under the auspices of the Fourth Respondent under CCMA case number
MP2937-13
on 10 September 2013. In terms of the said award,
notwithstanding that the Applicant sought reinstatement should he be
found
to have been substantively unfairly dismissed, the Commissioner
ordered the First Respondent to pay the Applicant six months’
compensation in the amount totalling R72 087.00 (i.e. R11 696.00
X 6 months = R72 087.00).
[2]
In essence, the Applicant’s grounds
of review are that instead of retrospectively reinstating the
Applicant following his
finding that the dismissal was substantively
unfair, the Commissioner came to a decision that no reasonable
decision maker would
have reached in his award, namely, to award
compensation and that this decision stands to be set aside.
[3]
At the commencement of the arbitration
before the Commissioner, he assisted the parties to narrow down the
issues. Arising
from this process, the Commissioner read into
the record, the result of these efforts which are found at page 2,
lines 7- 20 of
the transcript of the arbitration proceedings, as
follows:
‘
Okay.
Off the record I have assisted the parties to narrow down the issues.
The date of employment, the 5
th
of January 2012. Date of dismissal, 25 of March 2013... (inaudible)
operator. Salary, R11 969.00.
Remedy,
reinstatement
.
Reason for dismissal misconduct. Both the procedure and substance are
placed in dispute. The Respondent will call four witnesses
while the Applicant will testify by himself. Respondent has submitted
a bundle of documents marked Exhibit A while that of the
Applicant is
marked Exhibit B.’
[4]
In paragraphs 63- 65, the Commissioner
found that the Applicant’s dismissal was procedurally fair. In
paragraphs 67-
71 of his award, the Commissioner found that the
dismissal was substantively unfair because the First Respondent had
failed to
discharge the onus on a balance of probabilities, that the
Applicant was guilty of the misconduct levelled against him.
Thereafter,
the Commissioner turned to deal with the
appropriate remedy. His reasoning, in this regard, is contained
in paragraphs 72-74
of the award. It reads as follows:
‘
72.
I now turn to the appropriate remedy. The Applicant sought for
retrospective reinstatement.
Section 192
of the
Labour Relations Act,
No 66 of 1995
provides reinstatement as a primary remedy in case of
the dismissal that was found to be substantially unfair. However, in
this
case I am inclined to deviate from the primary remedy based on
the following reasons:
73.
The manner in which the Applicant conducted himself throughout the
proceedings leaves much
to be desired. If he was not the only witness
to his case, and for the purposes of finalising this matter, I could
have shown him
the door. He accused the Respondent’s
representative of bribing witnesses but could not substantiate his
allegation. He further
accused not only the representative but the
whole HR personnel in attendance to the proceedings of talking to
each other through
legs. This was later extended to me as a
Commissioner. I had to stop the proceedings on numerous occasions due
to his unbecoming
conduct. He said in his own words that this was
just the beginning of a bigger battle between him and the
Respondent.
74.
Given the above, it is my conclusion that the employer/employee trust
relationship has been
broken irretrievably. It is in this context
that I believe six months compensation would be appropriate remedy as
opposed to reinstatement.’
[5]
The First Respondent opposed the review
application, firstly, on the basis of a point
in
limine
, namely, that of the doctrine of
peremption. The First Respondent argued that because it had
complied with the award in having
paid the Applicant the compensation
ordered in terms thereof and that the award had therefore, already
been fully complied with
and that such compliance had unequivocally
been accepted by the Applicant, the Applicant had perempted his right
to challenge the
award on review.
[6]
In dealing with this issue in argument
before me, the Applicant’s attorney pointed out that as soon as
the Applicant became
aware that the compensation award has been paid
into his bank account, he wrote to the First Respondent’s
attorney on 29
April 2015, advising that the money was still in his
bank account and tendered to pay it back to the First Respondent.
The
First Respondent’s attorney thereafter indicated
before me that they were abandoning this point
in
limine
, and would oppose the review
application only on the merits.
[7]
The First Respondent’s case is that
the award is not reviewable. The Commissioner’s
conclusions regarding the
appropriate remedy are ones that a
reasonable decision maker could have reached having regard to the
material properly before him.
Further, the award is properly
founded on the considerations that unfolded before him during the
arbitration of the matter,
which considerations, it is submitted that
the Commissioner was fully entitled to rely upon in the exercise of
his powers in terms
of section 193(2) of the Act. The
Commissioner’s award is also not reviewable because the
Commissioner’s decision
on compensation as an appropriate
remedy is judicially correct having regard to the facts and
circumstances of the case and the
considerations that unfolded before
him during the arbitration of the matter.
[8]
In
advancing argument on the applicability of section 193(2) of the Act,
the First Respondent relied upon the Labour Appeal Court
judgment of
Maepe
v CCMA and Another.
[1]
This case dealt with allegations of sexual harassment by a
convening senior commissioner of the CCMA. After a full
disciplinary enquiry, the said convening senior commissioner was
found guilty and dismissed for sexual harassment and for disgraceful
conduct. Arising from the arbitration conducted under the
auspices of the Fourth Respondent, the convening senior
commissioner’s
dismissal was held to be unfair and the CCMA was
ordered to reinstate him but to give him a final written warning on
condition
that, if he was found guilty of similar misconduct in a
period of twelve months, he would be dismissed.
[9]
At the disciplinary enquiry and more
importantly under oath in the proceedings before the CCMA, the
convening senior commissioner
gave false evidence about the events
for which he had been dismissed and his version was rejected. The
CCMA subsequently
brought a review application in the Labour Court to
have the arbitration award reviewed and set aside on the basis that
the convening
senior commissioner had given false evidence both in
the disciplinary enquiry and in the arbitration proceedings, and that
in not
considering these factors, the Commissioner who arbitrated the
case, had committed a gross irregularity. In bringing this
application for review, the CCMA drew attention to the position in
which the convening senior commissioner had been employed and
the
special position of the CCMA as a dispute resolution institution.
The Labour Court granted the review application, set
the award
aside and declared that the convening senior commissioner’s
dismissal had been fair.
[10]
The convening senior commissioner then
appealed this Labour Court decision. In considering the appeal,
Zondo, JP of the Labour
Appeal Court set out the law as follows:
‘
[13]
In considering Counsel’s submission on the issue at hand, it is
important to have regard to the
provisions of Section 193(1) and (2)
of the Act insofar as they relate to reinstatement and the powers of
the CCMA (in arbitrations)
and the Labour Court (in adjudications).
Section 193(1) and (2) read as follows:
“
(1)
If the Labour Court or an arbitrator appointed in terms of this Act,
finds that a dismissal is
unfair, the Court or the arbitrator may –
(a)
order
the employer to reinstate the employee from any date not earlier than
the date of dismissal;
(b)
order
the employer to re-employ the employee, either in the work in which
the employee was employed before the dismissal or in any
other
reasonably suitable work on any terms and from any date not early
than the date of dismissal; or
(c)
order
the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
re-employ the employee
unless –
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that the
continued employment
relationship would be intolerable;
(c)
it is not reasonably practical for the employer to reinstate or
re-employ the employee;
or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.”
Section
193(2) of the Act obliges – it uses the word “must”
– the Labour Court or an arbitrator to order
the employer to
reinstate or re-employ the employee whose dismissal he had found to
be unfair for lack of a fair reason or whose
dismissal he had found
to be automatically unfair, unless one or more of the situations set
out in Section 193(2)(a) – (d)
applies.
[14]
The situation envisaged in paragraph (a) is “where the employee
does not wish to be reinstated
or re-employed” and it does not
apply in this case. The situation envisaged in paragraph (b) is
“where the circumstances
surrounding the dismissal are such
that the continued employment relationship would be intolerable”.
It is possible that
insofar as the giving of false evidence under
oath may have occurred in the disciplinary hearing before the
dismissal, it could
be said that it is one of the circumstances
surrounding dismissal, particularly where it was one of the factors
to be taken into
account in making the decision to dismiss. However,
it does not appear that the same can be said of the situation where
the giving
of false evidence only occurs in the arbitration or at the
trial subsequent to the dismissal. Paragraph (c) envisages a
situation
where “it is not reasonably practicable for the
employer to reinstate or re-employ the employee”. Paragraph (d)
is
a situation where “the dismissal is unfair only because the
employer did not follow a fair procedure”. Paragraph (d)
does
not apply in this case.
[15]
The effect of Section 193(1) and (2) is that in those cases in which
the arbitrator or the Labour
Court has found the dismissal to be
either automatically unfair or unfair for lack of a fair reason and
none of the situations
contained in Sections 193(2)(a) – (c) is
present, the arbitrator or the Labour Court has no discretion to
order the employer
to reinstate the employee but is obliged to do so.
I am here not referring to a case where the Court or arbitrator must
decide
whether to grant the relief of reinstatement or that of
re-employment. I am referring to a situation where the issue is
whether
to order the employer to reinstate the employee or to order
the employer to pay compensation to the employee. In those cases
where
the Court or the arbitrator has found that dismissal is
automatically unfair or is unfair for lack of a fair reason, and one
or
more of the situations set out in section 193(2)(a) – (c) is
present, the Labour Court or the arbitrator has no power to order
the
employer to reinstate the employee. The same applies if the dismissal
is unfair only because the employer did not follow a
fair procedure.
[16]
What I have just said in the preceding paragraph means that if a case
falls under one or other
of the situations listed in Section 193(2)
(a) – (d), it is not competent for the Labour Court or an
arbitrator to order
reinstatement or re-employment. This is because
Section 193(2) makes provision as to when reinstatement or
re-employment
must
be ordered and when it
must
not
be ordered. In effect, it says that reinstatement or re-employment
must be ordered in all cases except those listed in Section
193(2)(a)
– (d). This is mainly because of the words “must require
the employer to reinstate or re-employ the employee”,
which
appear at the beginning of Section 193(2) of the Act. The Act uses
the word “must” in many areas and it is clear
from an
analysis of most parts where “must” is used, it is used
to impose an obligation. In the cases which fall under
Section
193(2)(a) – (d), the Labour Court or arbitrator may order
relief other than reinstatement or re-employment, such
as the payment
of compensation to the employee, as envisaged in Section 193(1)(c) of
the Act.’
[2]
[11]
It is not clear from the Commissioner’s
reasoning, which of the provisions contained in section 193 (2) he
utilised to exercise
his powers not to award reinstatement. In
attempting to bring the Commissioner’s reasoning within that
section’s
prescripts, the First Respondent submitted that the
Commissioner had exercised his powers not to order reinstatement
either in
terms of Section 193(2) (b) or (c).
[12]
Dealing first with section 193 (2) (b), it
is clear from the
Maepe
judgment and more particularly paragraph [14] thereof, about when it
is permissible for a Commissioner not to award reinstatement
because
“the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable”.
As
appears from that paragraph, the circumstances which can be taken
into account are those which prevailed at the time of
the dismissal
and not thereafter. That is what is meant by “the
circumstances surrounding the dismissal”. Thus,
an
employee’s conduct at the arbitration conducted under the
auspices of the Fourth Respondent is not a ground upon which
the
Commissioner could have exercised his powers not to award
reinstatement to the Applicant.
[13]
Dealing now with section 193 (2) (c),
namely, where “it is not reasonably practicable for the
employer to reinstate or re-
employ the employee”, the Labour
Appeal Court in the
Maepe
judgment sets out its application in paragraphs [18] and [19]
thereof:
‘
[18]
Let me illustrate the point made by way of an example. If the
evidence before an arbitrator or the
Labour Court in an unfair
dismissal dispute between A and B, where A would be employed by B as
a driver, established that his driver’s
license was withdrawn
after his dismissal with the result that he could no longer drive
lawfully, it would definitely be reasonably
impracticable within the
meaning of that phrase in Section 193(2)(c) for the employer to
reinstate such employee because in such
a case the employer would not
be able to require the employee to perform his duties without
requiring the employee to commit a
criminal offence....
[19]
In my view, the same principle applies in this case. The
Appellant gave false evidence
under oath. Reinstatement was
going to mean that he was reinstated to a position in which he had to
expect others to respect
an oath when he himself had been found to
have shown no respect for the same oath. In my view, it was
going to be reasonably
impracticable for the First Respondent to
reinstate the Appellant to such position. On what basis could
he expect parties
and witnesses giving evidence before him, to show
respect for the oath they would take before giving evidence, when he
had shown
no respect for such oath himself? In my view, that
state of affairs would be such that the Appellant could not perform
his
duties effectively and when an employee cannot perform his duty
effectively, it seems to me that it is reasonably impracticable
within the meaning of that phrase in Section 193(2)(c) of the Act to
order the employer to reinstate the employee. And when
it is
reasonably impracticable to order the employer to reinstate an
employee, an order of reinstatement is incompetent.
Once the
Commissioner had become satisfied, as he obviously became at some
stage, the Appellant had given false evidence under
oath, he ought to
have considered what the effect thereof, if any, was in regard to the
relief in the light of the type of institution
that the First
Respondent is, the position which the Appellant in the First
Respondent and the Appellant’s functions or duties
in the
position he was employed.’
[14]
At paragraph [27], the learned Zondo, JP
goes on to state the following:
‘
[27]
Before I conclude, I wish to point out that the circumstances of this
case are very unusual because
of the nature and function of the First
Respondent as an institution, the position that the Appellant held in
the First Respondent
and the duties or functions that went with that
position. The fact that in this case we have concluded that the
Appellant’s
conduct in giving false evidence under oath in the
arbitration rendered it “reasonably impracticable for the
employer”
to reinstate him does not mean that this will be the
conclusion in each case in which an employee is found to have given
false
evidence under oath in an unfair dismissal matter. Each case
will have to be decided on its own merits. Indeed, in my view in many
cases which come before the CCMA, bargaining councils and the Labour
Court, that would not often be the result because it will
not follow
in many such cases that it is reasonably impracticable for the
employer to reinstate such employee. I think cases where
the giving
of false evidence under oath will lead to it being reasonably
impracticable for the employer to reinstate an employee
will be
relatively rare.’
[15]
In determining whether this is an exception
as envisaged in section 193(2)(c) which renders the reinstatement of
the Applicant reasonably
impracticable, the Commissioner was bound by
the law as set out in paragraphs [13] and [14] of this judgment,
above.
[16]
Arbitrations under the auspices of the
Fourth Respondent are litigious proceedings and thus adversarial in
nature. During
the course of such proceedings, it is not
uncommon for parties to behave irrationally. Such irrationality
can manifest in
the show of emotions, a personal attack on an
opponent, wild and unsubstantiated allegations, paranoia and
defensiveness. Indeed,
even seasoned legal practitioners in the
course of the fray are known to vent. More so, lay litigants
caught up in litigious
proceedings. From a reading of the
opening statements made by the Applicant and the First Respondent
before the Commissioner
in the arbitration, it was apparent that both
parties came out all guns blazing in promoting their cases. The
First Respondent
stated that they would like to prove that the
Applicant was a “habitual liar” whilst the Applicant
ventured that all
the allegations in the disciplinary process were a
conspiracy against him. Accusations of conspiracies and lies
abound in
litigious proceedings and alas in these ones, the
Commissioner found that there was neither a conspiracy to get rid of
the Applicant
nor that he was a habitual liar rather that the First
Respondent had simply failed to discharge the onus of proof, on a
balance
of probabilities, that the Applicant had committed the acts
of misconduct complained of.
[17]
It is apparent from the transcript of the
arbitration proceedings before the Commissioner that both the
Applicant and the First
Respondent’s witnesses became emotional
at times. This happens in the heat of the fray. It is the
Commissioner’s
task to guide the process back to rationality in
the pursuit of resolving the issues in dispute.
[18]
It is not uncommon for unrepresented
employees to irrationally feel that they are up against it,
particularly, when they are faced
with multiple employer witnesses
who they believe are conspiring against them. At one stage,
during the arbitration proceedings,
the Applicant raised an objection
that the First Respondent’s witnesses were assisting each other
under the table by kicking
each other and passing notes to each other
while giving evidence. Further, that they were laughing at him
and that the Commissioner
was doing nothing to stop this, with the
result that it was the Applicant’s view that the First
Respondent would “win
the award”. His perception
was that not only were they kicking each under the table but that the
Commissioner himself
was also kicking certain of the First
Respondent’s witnesses that way. The Commissioner
acknowledged that when one
of the witnesses sitting next to him had
moved her leg and he had stretched his, there had been an inadvertent
touch, and that
there was nothing sinister in this. This
precipitated the Applicant challenging the Commissioner as to his
objectivity and
the perception that he was biased towards the First
Respondent. It was in this context that the Applicant mentioned
variously
that that arbitration process was the start of the battle
and that, ultimately, the case would be decided by Judges and that he
would have the last laugh. This exchange between the
Commissioner and the Applicant became heated. The Commissioner
indicated
that because of his conduct, the Applicant should address
him as to why costs should not be awarded against him for his
disrespect
of the Commissioner. At no stage, during the
arbitration, did the Commissioner indicate that as a result of the
Applicant’s
conduct, he would exercise his powers in terms of
Section 193(2) not to reinstate him and nor were costs ordered
against the Applicant
by the Commissioner in the award.
[19]
Under cross-examination, the Applicant
alleged that the representative, who represented him, during his
disciplinary enquiry, had
been bribed by the First Respondent. He
alleged that he could substantiate this allegation but was not given
an opportunity
to do so.
[20]
The First Respondent, in its heads of
argument, referred me to various portions of the transcript of the
arbitration which necessitated
the Commissioner having to admonish
the Applicant to conduct himself in a manner calculated to progress
the matter to expeditious
finalisation. One example referred
to, is to be found at page 106, line 10 where the Commissioner states
as follows:
‘
Listen
Sir, I am controlling the process. Don’t make a lengthy
speech. If you want to make a statement, then make
a statement
and make a statement and afford the witness to respond.
’
This
kind of intervention by the Commissioner is not uncommon when a lay
litigant is cross- examining a witness.
[21]
The
Constitutional Court in both
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[3]
and
Billiton
Aluminum SA Ltd t/a Hillside Aluminium v Khanyile and Others
[4]
have held that reinstatement is the primary remedy in unfair
dismissal disputes.
[22]
Applying
the facts to the law, to the extent that as is alleged by the First
Respondent, the Commissioner exercised his powers in
terms of section
193 (2) (c) of the Act in not awarding Applicant the primary remedy
of reinstatement, he committed an error in
law. The Labour
Appeal Court in the
Maepe
judgment makes it clear that “not reasonably practicable”
relates to whether it is practically feasible at the workplace
for
the dismissed employee to resume his functions and duties. This
will usually be influenced primarily by a substantive
change in the
employer’s operational requirements since the dismissal such as
the genuine abolition of the dismissed employee’s
position or
the dismissed employee’s inability to perform his duties in
terms of his contract of employment such as the example
quoted in
paragraph 18 of the
Maepe
judgment where the employee employed as a driver had his driver’s
license revoked subsequent to his dismissal or that where
it was an
inherent requirement of the job for the convening senior commissioner
to administer the oath to witnesses and he had
shown no respect for
that oath by lying under it. These are exceptional circumstances. As
was held in,
inter
alia
,
Manyaka
v Van de Wetering Engineering (Pty) Limited
[5]
,
the fact that the dismissed employee’s position has been filled
by a new employee does not even constitute valid grounds
to render
reinstatement “not reasonably practicable”. Section 193
(1) (c) also mentions reemployment as an alternative
to
reinstatement. This means that if reinstatement is “not
reasonably practicable”, the Commissioner must consider
ordering re-employment in other reasonably suitable work. That is how
far the Commissioner is required to go, in order to comply
with the
peremptory nature of sections 193 (1) and (2) of the Act.
[23]
Because the Commissioner’s reasoning
for not awarding reinstatement in terms of sections 193 (1) and (2)
of the Act, as contained
in paragraphs 73 and 74 of the award, is not
in compliance with the law and more particularly sections 193 (2) (b)
and (c) of the
Act, it is also a decision that a reasonable
arbitrator could not have reached. It was not open to the
Commissioner in terms
of the law not to order reinstatement because
he found that the Applicant had mis- conducted himself during the
arbitration before
him. He had other remedies to address that.
Indeed, he made mention of one in the arbitration which is an adverse
costs award
in terms of Section 138 (10) of the Act read with Rule 39
of the Rules for the Conduct of Proceedings in the CCMA and, more
particularly,
Rule 39 (1) d) which states:
‘
(1)
In any arbitration proceedings, the commissioner may make an order
for the payment of costs
according to the requirements of law and
fairness and when doing so should have regard to-
d)
whether a party or the person who represented that party in the
arbitration proceedings
acted in a frivolous and vexatious manner-
i)
by proceeding with or defending the dispute in the arbitration
proceedings,
or
ii)
in its conduct during the arbitration proceedings.’
[24]
In terms of the CCMA Guidelines: Misconduct
Arbitrations published by the CCMA in terms of section 115 (2) (g) of
the Act and at
paragraph 141 thereof, the CCMA gives guidelines to
Commissioners as to the circumstances when costs should be awarded.
Instances
which may justify a costs order include if the
conduct of a party or their representative has been dishonest,
reprehensible or
unreasonable. If indeed the Applicant had
conducted himself in a reprehensible or unreasonable manner, this is
a remedy that
could have been imposed by the Commissioner. He
also had another remedy, namely, contempt proceedings as found in
Sections
142(8)(f), (g), (h), (i) of the Act, which provides:
‘
(8)
A person commits contempt of the Commission –
(f)
if the person wilfully hinders a Commissioner in performing any
function conferred
by or in terms of this Act;
(g)
if the person insults, disparages or belittles a Commissioner, or
prejudices or improperly
influences the proceedings or improperly
anticipates the Commissioner’s award;
(h)
by wilfully interrupting conciliation or arbitration proceedings or
misbehaving in
any other manner during those proceedings;
(i)
by doing anything else in relation to the Commission which if done in
relation
to a Court of law, would have been contempt of court.’
[25]
Given that there are other remedies as set
out above, it is not open to a Commissioner to use section 193 of the
Act to sanction
employees for their conduct during CCMA arbitration
proceedings by denying them reinstatement when they seek it as their
primary
remedy, where they are found to have been substantively
unfairly dismissed.
[26]
In the result, I find that the Commissioner
in not reinstating the Applicant, having found that his dismissal was
substantively
unfair, but instead ordering that he be paid
compensation of six months, such a finding was not a decision that a
reasonable decision
maker could have come to and it should be set
aside and substituted with an order that the Applicant be reinstated
in terms of
section 193 (1) (a) of the Act.
[27]
I now turn to deal with the retrospectivity
of the reinstatement order. I am mindful of the fact that the
Applicant was dismissed
on 25 March 2013, that the Commissioner’s
award dates back to 10 September 2013 and that there have been
various delays in
the processing of the application for review
occasioned by the constraints of the Court system. I am also
cognisant of the
fact that this is not a situation where the First
Respondent as employer has brought the application for review but
that it did
elect to oppose the said Application. Had it not
done so, the said Application would have been heard on the unopposed
roll
and its finalisation expedited. In all the circumstances,
I find that it would be fair and equitable for the Applicant’s
reinstatement to be limited to a period of 15 months. In other
words, the Applicant is to be remunerated for only 15 months
since
his unfair dismissal on 25 March 2013. In all other respects,
his service is to be regarded as unbroken since 5 July
2012, the date
of the commencement of his service with the First Respondent.
[28]
Given that there is an ongoing employment
relationship between the Applicant and the First Respondent, and that
the Applicant was
represented by Legal Aid South Africa, I am not
persuaded that costs should follow the result.
[29]
I hereby make the following order:
1.
The Third Respondent’s arbitration
award made under the auspices of the Fourth Respondent on 10
September 2013 under CCMA
case number MP2937-13 in which Third
Respondent ordered that the First Respondent should pay the Applicant
six (6) months compensation
in the amount of R72 087.00 is
hereby reviewed and set aside;
2.
The Third Respondent’s award of six
(6) months compensation is substituted with an order that the
Applicant is hereby reinstated
retrospectively, such retrospectivity
being limited to a period of 15 months.
3.
There is no order as to costs.
_______________________
Hardie, AJ
Acting
Judge of the Labour Court
APPEARANCES
For the Applicant:
Ms A Roestorf
Instructed
by:
Legal Aid South Africa,
For
the First Respondent:
Mr D Cithi
Instructed
by:
Mervyn Taback Inc
[1]
[2008] 8
BLLR 723 (LAC).
[2]
Ibid at paras 13-16.
[3]
[2008] ZACC
16; 2009 (1) SA 390 (CC); 2009 (2) BCLR 111 (CC)
[4]
[2010] ZACC
3
;
2010 (5) BCLR 422
(CC); 2010 31 ILJ 273 (CC);
[2010] 5 BLLR 465
(CC)
[5]
[1997] 11
BLLR 1458
(CC)