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[2017] ZALCJHB 9
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Frank v Commission for Conciliation, Mediation and Arbitration and Others (JR628/13) [2017] ZALCJHB 9 (17 January 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Not Reportable
Case No: JR628/13
In the matter between:
ASHLEY GAVIN
FRANK
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
PRAKASH RHOOPA N.O.
Second
Respondent
NORTH WEST
UNIVERSITY
Third Respondent
Heard:
19 November 2015
Delivered
:
17
January 2017
Summary:
Review application,application dismissed.
JUDGMENT
BALOYI,
AJ
Introduction
1.
The
applicant seeks the review and setting aside of an arbitration award
of the second respondent, (the “commissioner”),
dated 11
March 2013, case numbers NWKD3522-12 and NWKD3761-12 issued under the
auspices of the Commission for Conciliation Mediation
and Arbitration
(CCMA). The application is brought in terms of section 158(1)(g)
and/or section 145 of the Labour Relations Act
(LRA)
[1]
.
The applicant seeks as primary relief substitution of the award, and
in the alternative, remittal of the matter to the CCMA for
a hearing
anew.
2.
The
applicant referred to the CCMA: (i) a dispute of unfair labour
practice in terms of section 186(2)(a) of the LRA, in which he
sought
a ruling that the conduct of the third respondent, North West
University relating to his probation is unfair (NWKD3522-12;
and (ii)
a dispute of unfair dismissal in terms of section 186 and 191 in
which the applicant sought a ruling that the termination
of his
employment constitutes a dismissal and that the dismissal is
procedurally and substantively unfair, alternatively, procedurally
unfair (NWKD3761-12). Conciliation of both disputes was unsuccessful
and the matters were referred to arbitration, and by agreement
consolidated and heard together. In the award sought to be reviewed
and set aside, the commissioner found that the applicant has
not
shown that: (i) the third respondent committed an unfair labour
practice; and (ii) he had been unfairly dismissed. The commissioner
accordingly dismissed the claims of the applicant.
The issues for
determination by the commissioner
3.
By
agreement between the parties, the matter before the commissioner
proceeded by way of a stated case and documents submitted by
each
party as evidence. The parties also made legal submissions. The
questions that the commissioner was required to determine
are
recorded in the stated case as follows—
3.1.
That
should it be ruled that the applicant automatically became a
permanent employee on 1 August 2012, or an earlier date, that
the
respondent’s conduct constitutes an unfair labour practice and
the termination of the applicant’s services will
be regarded as
an unfair dismissal, both procedurally and substantively.
3.2.
With
respect to the issues to be decided by the commissioner, the parties
agreed that should it be found that the applicant’s
probation
was extended beyond 31 July 2012, or that the applicant did
not obtain permanent status (presumably after 31
July 2012), the
parties only require that the commissioner determine the following
issues—
3.2.1.
Whether
the applicant’s probation was extended beyond 31 July 2012,
and if so, whether the applicant’s employment
became permanent
on 1 August 2012, or any earlier date.
3.2.2.
Should
it be ruled that the applicant’s probation was extended beyond
July 2012, the following—
(i)
Whether
the University was obliged to inform the applicant of the extension
of his probation beyond July 2012;
(ii)
Whether
the University was entitled to unilaterally extend the applicant’s
probation without affording him an opportunity
to be heard;
(iii)
Whether
the extension was justified and fair; and
(iv)
The
term of the extended probation.
3.3.
Should
it be ruled that the applicant’s probation was indeed extended
beyond July 2012, or that the applicant did not obtain
permanent
status on 1 August 2012 or any earlier date, the following—
3.3.1.
Whether
the termination of the applicant’s services was procedurally
fair;
3.3.2.
Whether
the CCMA has the jurisdiction to determine the legality of the
termination of the applicant’s employment, and if so,
whether
the termination thereof was lawful, “and if so, therefore in
totality unfair” (would appear that this is an
error and was in
fact intended to read “fair” instead).
3.3.3.
Whether
the CCMA has the jurisdiction to consider or take into account the
circumstances and legal position relating to the extension
of the
applicant’s probation in February 2012.
The Relevant Facts
4.
From
the record, the following facts are common cause—
4.1.
The
applicant was employed by the North West University (the
“University”) from 1 February 2011 in the Faculty of
Commerce
and Administration as Professor (Peromnes Grade A5) in the
Graduate School of Business and Government Leadership at the
University’s
Mafikeng Campus. The terms of the appointment
included— (i) the appointment was subject to probation from 1
February 2011
to January 2012; (ii) the probation could be extended
at the discretion of the University; (iii) the applicant’s
employment
may be terminated by either party on 3 months’
notice; (iv) the appointment was subject to conditions of employment
applicable
to academic personnel
[2]
.
Clause 1.2.3 of the conditions of service reads:
“
Subject to
the provisions that MANAGEMENT may approve your permanent appointment
is subject to probationary period of one year or
as otherwise
specified in your letter of employment. After completion of the
probationary period, MANAGEMENT may confirm your appointment
or
extend the probationary period according to conditions set by
MANAGEMENT or terminate the appointment with three calendar months
written notice following the procedures as set out in the Labour
Acts”.
4.2.
On
30 January 2012, the University extended the applicant’s
probation to 31 July 2012 and he was informed of this
on 8
February 2013. It is common cause that the applicant did not refer a
dispute of unfair labour practice pertaining to this
extension of
probation.
4.3.
On
31 July 2012, the applicant met with a Professor Pelser of the
University and they discussed issues relating to applicant’s
performance. According to the university, the meeting
discussed: (i) the manner in which the applicant’s performance
was to be assessed; (ii) certain concerns were raised; (iii) and that
the applicant’s response was needed to verify his research
outputs. In any event, it is common cause that on 31 July 2012
the applicant was not informed that he was appointed on
a permanent
basis. Neither was he informed that his probation was extended for a
further period or that he remained on probation.
4.4.
In
a letter to the applicant dated 28 September 2012, with the heading
“Work Perfomance/Outcome of Extended Probationary Period”,
the University set out a litany of issues about the applicant’s
conduct and performance in the period of probation. The letter
concludes by— (i) informing the applicant that he failed and/or
neglected to perform up to the required standard and conducted
himself in a manner incompatible with the values of the University;
and (ii) inviting the applicant to provide written reasons
why he
should be recommended for permanent appointment, after which he would
be informed of the decision whether or not he is considered
for
permanent appointment. The applicant’s written response to the
letter was received by the University on 24 October
2012.
4.5.
In
a letter dated 31 October 2012, the university applicant was informed
that the University had decided not to appoint him on a
permanent
basis. The letter also informed the applicant that his employment
would terminate on 30 November 2012 and his employment
was terminated
accordingly.
4.6.
In
the aftermath of his dismissal, the applicant referred a dispute of
unfair dismissal to the CCMA in which he alleges that the
decision to
terminate his employment was taken without him being afforded a
hearing whatsoever. It is not apparent from the record
or the
affidavits filed before this Court when in the sequence of events the
dispute of unfair labour practice was referred to
the CCMA.
4.7.
In
the arbitration, the applicant contended that he became a permanent
employee on 1 August 2012 by virtue of the fact that his
probation
was not extended or his services terminated on the expiry of
probation on 31 July 2012. The applicant contended
that the
confirmation of his appointment was not required to be express or in
writing and could be tacit or by implication.
Is the award liable to
be set aside?
5.
The
grounds for review relied upon by the applicant are set out in
paragraphs 38 to 45 of the applicant’s affidavit. In an
effort
not to do any injustice to the grounds relied upon, I list the
grounds for review as they appear in the affidavit. The applicant
contends that the commissioner committed misconduct in relation to
his duties as commissioner, alternatively committed a gross
irregularity in that—
5.1.
He
did not properly, rationally and justifiably apply his mind to the
facts and failed properly to consider the matter and argument;
5.2.
Failed
to properly apply the provisions of the Constitution of South Africa;
5.3.
The
finding is not justifiable in relation to the reasons given for it,
and such finding is not rational or justifiable in its merits
or
outcome;
5.4.
He
failed to properly apply his mind and to have proper consideration of
the facts and the law in respect of his discretion; and
5.5.
Failed
to properly, justifiably and reasonably determine and assess the
submissions before him.
6.
The
applicant further contends that - the commissioner committed a
reviewable misconduct and he conducted himself in a grossly irregular
manner in that he failed to appreciate the nature of the dispute
before him; he misconstrued the extent/scope of his powers in
so far
as his entitlement to consider whether the termination of the
applicant’s employment was unfair, as it equated to
a breach of
contract, which constitutes misconduct; the commissioner was biased
in that he expressed a view, in an informal (“off
the record”)
discussion that the compensation proposed by the applicant was an
“exceptional award being sought”.
7.
Section
145, in relevant part, provides that—
“
(1)
Any party to a
dispute
who
alleges a defect in any arbitration proceedings under the auspices of
the Commission may apply to the Labour Court for an order
setting
aside the arbitration award
”
.
Subsection (2)
describes a defect as
meaning—
“
(a)
that the commissioner—
(i)
committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii)
exceeded the commissioner’s powers; or
(b)
that an award has been improperly obtained”.
8.
Section
158(1)(g) provides that the Labour Court may—
“
subject to
section 145, review the performance or purported performance of any
function provided for in this Act or any act or omission
of any
person or body in terms of this Act on any grounds permissible in
law”.
I
am satisfied that the grounds for review relied upon by the applicant
fall squarely within section 145. I therefore do not propose
to say
any more about the reliance on section 158(1)(g).
9.
With
respect to a review of an arbitration award in terms of section 145,
the Court in
Lekota
v First National Bank SA Ltd
[3]
,
cautioned that when reviewing an arbitration award, it is not the
function of the court to decide whether the commissioner acted
correctly, but whether he committed misconduct or a gross
irregularity or exceeded his powers within the meaning of section
145.
The test for review of arbitration awards rendered in terms of
the LRA has been, and continues to be, extensively articulated in
various analysis and pronouncements by our courts and in commentary.
I do not propose to attempt any addition to the various considered
and erudite body of views as I am satisfied that the question of the
reviewability of the award in the present matter can be answered
with
reference to and the application of the guidance of the Labour Appeal
Court in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
[4]
.
On the application of the test for review on the grounds of
misconduct, gross irregularity and/or excess of power, the Court said
that the proper questions to ask in relation to the conduct of
arbitration proceedings or “process-related” issues,
are
the following:
9.1.
In
terms of his or her duty to deal with the matter with the minimum of
legal formalities, did the process that the arbitrator employed
give
the parties a full opportunity to have their say in respect of the
dispute?
9.2.
Did
the arbitrator identify the dispute he or she was required to
arbitrate? (this may in certain cases only become clear after
both
parties have led their evidence).
9.3.
Did
the arbitrator understand the nature of the dispute he or she was
required to arbitrate?
9.4.
Did
he or she deal with the substantial merits of the dispute?
9.5.
Is
the arbitrator’s decision one that another decision-maker could
reasonably have arrived at based on the evidence?
[5]
10.
I
accordingly take guidance from the above in considering whether the
award is reviewable on the grounds contended by the applicant.
Did the applicant
become a permanent employee after 31 July 2012?
11.
On
the question whether the applicant’s probation was extended
beyond 31 July 2012, the commissioner found in the negative.
The
commissioner found that in the period after 31 July 2012, the
University conducted an assessment of the applicant’s
performance and his suitability for retention. A performance
discussion with the applicant was conducted and the applicant was
invited to respond in writing to issues raised with him relating to
his performance. The applicant understood that this was a process
to
evaluate his performance for a decision about his continued
employment and he participated in the evaluation process without
complaint that an evaluation of his appointability in that period was
unnecessary in the light of his alleged permanent appointment
as he
alleges or otherwise unfair. I find no fault with this finding of the
commissioner on the grounds contended for by the applicant
and the
commissioner’s decision must stand.
12.
Whilst
an express statement to the applicant immediately after 31 July 2012,
that his permanent appointment was subject to the completion
of the
evaluation of his performance for the period ending 31 July 2012
would undoubtedly have avoided any uncertainty, reasonable
or
otherwise, it does not follow in this case that in the absence of
such express statement the applicant assumed permanency on
1 August
2012 on the basis he contends. This is especially so on the present
facts where the applicant was aware and in fact participated
in the
evaluation process to determine his retention or otherwise. The
intention of the University was clear and the applicant
does not
contend that he was placed under the impression that the University
had decided to retain him. The University would have
to have created
an impression, whether by conduct or silence, to the applicant that
it had decided to retain him, for the applicant’s
contention
that he was appointed tacitly or by implication to have any merit or
otherwise hold. The commissioner found that the
applicant had not
shown that by conducting the evaluation in the period after 31 July
2012 before making the decision that the
applicant would not be
appointed, the University acted unfairly. I do not find this
conclusion unreasonable or that it otherwise
stands to be set aside
on any of the grounds contended for by the applicant. On the facts
that were before the commissioner, his
conclusion that the applicant
did not obtain permanency after 31 July 2012 meets the requirement of
reasonableness. There is also
no evidence of the bias alleged by the
applicant – such discussion as the applicant relies on for the
allegation of bias
(an off the record comment before commencement of
arbitration) is not in itself evidence of bias and more importantly
no bias is
manifest from the award. I find that the decision of the
commissioner must stand.
13.
For
completeness, it is necessary to mention that the issue of the
extension of the applicant’s probation from 31 January
2012 to
31 July 2012 is not a matter that was properly before the
commissioner, such not having been referred for conciliation.
Accordingly, the commissioner could not have properly taken this
issue into account in his determination, which exercise would
have
required that he makes conclusions about that extension of probation,
as if the issue had been referred for determination
by the CCMA.
Was
the dismissal of the applicant unfair for want of a hearing
?
14.
This
question arose in the event that the commissioner found that the
applicant became a permanent employee with effect from 1 August
2012.
Having found that the applicant did not become a permanent employee,
it followed that the answer to this question would be
in the
negative. I am unable to find that this decision of the commissioner
was unreasonable. In any event, the applicant’s
contention that
the termination of his employment is procedurally unfair because it
was not preceded by a hearing is without merit.
The applicant was
presented with the issues to which the University required his
response before it made the decision about his
continued employment.
The applicant responded to the issues and the University made its
decision after receiving these concerns.
Schedule 8(1)(h) prescribes
exactly this
[6]
. A hearing in
the circumstances does not entail a disciplinary hearing as one will
expect in a case of misconduct, which the applicant
contends his was
the case, which contention has no merit in law or fact.
15.
On
the question whether the University’s failure to give the
applicant 3 months’ notice of the termination of his employment
as stipulated in his contract of employment is unfair, the
commissioner found that the University’s non-compliance with
the notice period is a matter which is contractual in nature and that
the CCMA does not have the jurisdiction to determine the issue
whose
jurisdiction is to deal with dismissals on the grounds of misconduct,
incapacity and operational requirements. On the facts,
the applicant
was not terminated for misconduct and there is no merit in his
contention otherwise. The applicant was terminated
in accordance with
the terms of his contract of employment, namely, that if he did not
meet the requirements for appointment following
probation, the
University had the discretion not to appoint him. I am accordingly
unable to find fault with the award of the arbitrator
on the grounds
contended for and do not agree that this conclusion is unreasonable.
It follows that this decision of the commissioner
must also stand.
Conclusion
16.
With
respect to costs, the parties each argued that costs follow the
cause. I find no reason to order otherwise. The University
has been
successful and should be awarded its costs.
17.
From
the above, it follows that the application stands to be dismissed
with costs. I find accordingly and make the following order.
17.1. The
application is dismissed.
17.2.
The applicant is to pay the costs.
_____________
Baloyi,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
J Keet
Instructed by:
Scholtz Attorneys
For the Respondent: Henk
Wissing
Instructed
by:
Henk Wissing Attorneys
[1]
Act 66 of 1995.
[2]
Clause 1.1 of Conditions of
Employment For Academic Staff (Permanent).
[3]
[1998] 10 BLLR 1021
(LC) at para 16.
[4]
[2007] ZALC 66
;
[2014] 1 BLLR 20
LAC.
[5]
Id
at
para 20. See also
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA
24
(CC
).
[6]
Code of Good Practice: Dismissal.