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[2016] ZALCJHB 55
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Carlbank Mining Contracts (Pty) Ltd v Makhubela and Others (JR1809/13) [2016] ZALCJHB 55 (16 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR1809/13
In the
matter between:
CARLBANK
MINING CONTRACTS (PTY)
LTD
Applicant
and
N S
MAKHUBELA
First Respondent
LANCE
CELLIER
N.O.
Second Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT AND LOGISTICS INDUSTRY
Third Respondent
Heard:
10 July 2015
Delivered:
16
February 2016
JUDGMENT
VAN AS,
AJ
Introduction
[1]
This is an application
in terms of section 158(1)(g) of the Labour Relations Act 66 of 1995
(“the LRA”) to review and
set aside the arbitration award
which the second respondent handed down on 5 August 2013 (“the
arbitration award”).
[2]
The first respondent
opposes the review application. The second and third respondents
abide the decision of this Court.
[3]
The applicant seeks to
review and set aside the arbitration award on the following grounds:
3.1
The second respondent
displayed bias in favour of the first respondent and against the
applicant during the arbitration proceedings
(“the first ground
of review”);
3.2
The second respondent
committed a gross irregularity during the conduct of the arbitration
proceedings by taking into account irrelevant
evidence,
alternatively, evidence which was not properly before him during the
arbitration proceedings (“the second ground
of review”);
3.3
The second respondent
arrived at a conclusion which no reasonable decision-maker could have
reached and thereby committed a reviewable
irregularity in finding
that the applicant had coerced the first respondent into concluding a
fixed term contract (“the third
ground of review”).
The
material facts
[4]
The applicant is a
temporary employment service as contemplated in section 198 of the
LRA. The applicant places and supplies employees
to various clients,
including RTT Couriers.
[5]
On 7 February 2011, the
applicant and the first respondent entered into a fixed term contract
of employment in terms of which the
first respondent was to be placed
as a driver at RTT Couriers. This fixed term contract was due to
expire on 31 March 2012.
[6]
On 24 February 2012,
the applicant notified the first respondent in writing that the fixed
term contract was to expire on 31 March
2012. The first respondent
confirmed receipt of this notice in writing.
[7]
On 23 March 2012, the
first respondent returned his uniform and requested his UIF card. The
applicant offered alternative employment
to the first respondent
which he refused to accept.
[8]
The first respondent
thereafter referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (“the CCMA”)
in which he
alleged that RTT Couriers had unfairly dismissed him.
[9]
The matter was
transferred to the third respondent and the applicant was substituted
as the employer party.
[10]
The dispute was
thereafter arbitrated before the second respondent who found that the
applicant had coerced the first respondent
into concluding the fixed
term contract but thereafter retrospectively reinstated the first
respondent on another fixed term contract
for a further period of
some thirteen months.
[11]
I shall now deal with
the three grounds of review.
The
first ground of review
[12]
Mr Van der Westhuizen
who appeared for the applicant argued that it is clear from the
transcript of the arbitration proceedings
(“the transcript”)
and the arbitration award that the second respondent was biased in
favour of the first respondent.
I have read and considered the
transcript and the arbitration award. Whilst it is so that the second
respondent made a number of
unsubstantiated comments in the
arbitration award, there is no evidence before me to suggest that the
second respondent displayed
bias against the applicant during the
arbitration proceedings. The fact that the second respondent may have
taken judicial notice
of irrelevant and unsubstantiated evidence in
arriving at an incorrect conclusion does not,
per
se
, create a
reasonable apprehension of bias in favour of the first respondent and
against the applicant.
[13]
There is, therefore, no
merit in the first ground of review.
The
second ground of review
[14]
Mr Van der Westhuizen
also submitted that it is apparent from the arbitration award that
the second respondent took into account
evidence which was not placed
before him during the arbitration proceedings in concluding that the
first respondent’s dismissal
was unfair. He specifically
referred me to paragraph 17 of the arbitration award where the second
respondent observed
‘
It
would then be most convenient for the employer to simply insert the
termination date of the contract at a time suitable to them
or their
client. This and other ploys by employers to bypass fair
employment procedures relating to dismissals are regrettably
a
common, but hopefully a declining feature brought to the table at the
CCMA and other dispute resolution forums.’
[15]
As stated hereinabove,
I have read and considered the transcript. There was, in my view, no
basis for the second respondent to tar
the applicant with the same
brush as those unscrupulous employers who, according to the second
respondent, regularly mislead unsuspecting
and unsophisticated
employees into concluding fixed term contracts of employment.
[16]
This is especially so
since the first respondent conceded under cross-examination that he
has not ‘signed a blank paper in
[his] life’.
[17]
It is undesirable for a
CCMA commissioner to make blank or general statements about the
general behaviour of employers or for that
matter, employees who
appear before him at the third respondent or the Commission for
Conciliation, Mediation and Arbitration (“the
CCMA”).
[18]
However, such a
statement, whilst undesirable does not, in my view, constitute a
reviewable irregularity as contemplated in section
145 of the LRA.
[19]
There is, therefore,
also no merit in the second ground of review.
The
third ground of review
[20]
It is apparent from the
arbitration award that the second respondent essentially concluded
that the applicant had coerced the first
respondent into concluding
the fixed term contract of employment.
[21]
It
is also apparent from the arbitration award that the second
respondent, in concluding that the applicant had so coerced the first
respondent, made a credibility finding in favour of the first
respondent and against the witnesses of the applicant. It is trite
that a Court of review should be extremely reluctant to interfere
with credibility findings made by a trier of fact such as the
second
respondent.
[1]
[22]
I am, however,
satisfied that the contradictions and inconsistencies in the first
respondent’s evidence during the arbitration
proceedings are so
material as to allow me to disturb the credibility finding which the
second respondent made in favour of the
first respondent and against
the applicant’s witnesses.
[23]
The second respondent
also does not furnish any reasons for rejecting the evidence of the
applicant’s witnesses other than
to blandly state that he found
the third respondent’s testimony to be credible despite his
confusion concerning certain of
the dates.
[24]
In my view, there was
simply no credible evidence before the second respondent which
allowed him to conclude that the applicant
had duped the first
respondent into signing a “blank” fixed term contract.
This is again especially so since the first
respondent, somewhat
categorically, conceded under cross-examination that he had not
previously signed “a blank paper”.
[25]
It is also extremely
unlikely and indeed fanciful that the applicant would have duped the
first respondent into signing such an
inchoate contract of employment
so as to allow it to simply insert the period of employment at a
later date should the applicant
want to get rid of the first
respondent.
[26]
Mr Sithi who appeared
for the first respondent argued that an incomplete or unenforceable
fixed term contract of employment meant
that the first respondent was
a permanent employee of the applicant at the time of his dismissal. I
disagree. An inchoate or unenforceable
contract of employment between
the parties simply meant that there was no contract of employment
between the parties. It certainly
did not allow the second respondent
to rewrite another fixed term contract of employment for the parties
which is exactly what
the second respondent did in paragraph 27 of
the arbitration award.
[27]
Accordingly,
I find that the conclusion reached by the second respondent, namely,
that the applicant coerced or duped the first
respondent into
concluding an inchoate or incomplete fixed term contract of
employment is not a conclusion which a reasonable decision-maker
could have reached on the evidence before the second respondent
during the arbitration proceedings.
[2]
[28]
I therefore uphold the
third ground of review.
Conclusion
[29]
Mr Van der Westhuizen
argued that I am in as good a position as another arbitrator to
determine the merits of the matter and that
I should therefore not
remit the dispute to the third respondent but should instead
substitute the arbitration award with an order
that the applicant did
not dismiss the first respondent. Mr Sithi made no submission
concerning the remission of the dispute to
the third respondent.
[30]
In
my view, there would be no purpose in remitting the dispute to the
third respondent to be arbitrated before an arbitrator other
than the
second respondent.
[3]
[31]
Accordingly, I make the
following order:
31.1
The arbitration award
is reviewed and set aside;
31.2
The arbitration award
is substituted with an order that the applicant did not dismiss the
first respondent and the third respondent
therefore lacked the
requisite jurisdiction to arbitrate a dispute concerning the fairness
of the alleged dismissal of the first
respondent;
31.3
There is no order as to costs.
_______________
Van
As, AJ
Acting
Judge of the Labour Court
Appearances:
For the
applicant:
Advocate G van
der Westhuizen
Instructed
by:
MacRoberts Attorneys
For the
first respondent: Mr Sithi of
Mkhonto Attorneys
[1]
Cox v
CCMA and Others
(C360/99)
[2000] ZALC 111
(02 October 2000).
[2]
See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110.
[3]
See
Tedco
Plastics (Pty) Ltd v NUMSA and Others
(2000) 21
ILJ
271 (LC);
Protekon
(Pty) Ltd v CCMA and Others
(2005) 26
ILJ
1105 (LC).