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[2017] ZALCJHB 149
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Vusa-Isizwe Security (Pty) Ltd v Rampai NO and Others (JR2615/13) [2017] ZALCJHB 149 (4 April 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
No: JR 2615/13
In
the matter between:
VUSA-ISIZWE
SECURITY (PTY) LTD
Applicant
and
RAMPAI,
N B N.O.
First
Respondent
THE COMMISSION FOR
CONCILIATION
Second Respondent
MEDIATION
AND ARBITRATION
SOLOMON
HUMANE & 2 OTHERS
Third and Further Respondents
Heard:
28 February 2017
Judgment:
4 April 2017
Summary:
Unopposed application to review and set aside arbitration award –
contentions that CCMA lacked jurisdiction to entertain
the dispute
without merit – however Commissioner’s award of
reinstatement unreasonable because such not reasonably
practicable.
Award set aside to that extent and order granted remitting the matter
to the CCMA for a fresh determination on the
question of relief only.
JUDGMENT
BARNES
AJ
Introduction
[1]
This is an application
to review and set aside an arbitration award handed down by the first
respondent (“the Commissioner”)
on 12 November 2013 in
favour of the third to further respondents (“the employees”).
[2]
The Commissioner found
that the employees had been dismissed by the applicant and that their
dismissals were substantively and procedurally
unfair. The
Commissioner granted the employees reinstatement together with
backpay.
[3]
The applicant is a
labour broker who placed the employees with China African Precious
Metals (Pty) Ltd, known as CAPM Gold. The
employees rendered services
to CAPM Gold as investigators from December 2012 until their services
were terminated on 22 August
2013.
[4]
The applicant seeks to
review the arbitration award on a number of alternative grounds.
First, the applicant contends that the employees’
employment
terminated automatically upon the termination of the service
agreement between itself and CAPM Gold. Therefore, contends
the
applicant, the employees were not dismissed and the Commission for
Conciliation Mediation and Arbitration (“the CCMA”)
had
no jurisdiction to entertain the dispute.
[5]
Second, the applicant
contends that that even if the employees were dismissed, the
Commissioner found that they ought to have been
dismissed for
operational reasons. Therefore, contends the applicant, the dispute
before the Commissioner was one about retrenchment
which the CCMA
lacked jurisdiction to entertain.
[6]
Third,
the applicant contends that even if the employees were dismissed and
such dismissals were unfair, the termination of the
service agreement
between itself and CAPM Gold meant that reinstatement is not
reasonably practicable within the meaning of section
193(2)(c) of the
Labour Relations Act
[1]
(“the
LRA”). There is, as the applicant puts it “nowhere to
reinstate the employees to.” The applicant
contends that the
award of reinstatement in these circumstances was unreasonable and
cannot stand.
[7]
Finally, the applicant
contends that the Commissioner’s calculation of backpay
was incorrect in that only one of the
employees earned R12 500.00 per
month while the other two earned R8 000.00 per month. The
Commissioner awarded backpay on the basis
that all three employees
earned R12 500.00 per month.
[8]
The employees, despite
proper service upon them, have not opposed the application.
The
Record
[9]
The record in this
matter is incomplete. For reasons which have not been explained, the
Commissioner failed to electronically record
the arbitration
proceedings. The CCMA’s notice of filing in terms of Labour
Court Rule 7A(3) records that:
“
The
Commissioner confirmed that he did not electronically record the
proceedings, only the handwritten notes were done.”
[10]
The Commissioner’s
handwritten notes have been filed. They are however of a poor
quality. They are illegible in part and do
not appear to constitute a
complete record of either the evidence led or the argument presented
at the arbitration.
[11]
Despite this, the
applicant has not attempted to reconstruct the record. Nor has it
sought to persuade the Court that the defects
in the record cannot be
cured, despite its best efforts to do so. The applicant is
content to rely on the incomplete record
filed in this matter which
consists only of the documentary evidence handed in at the
arbitration and the unsatisfactory notes
kept by the Commissioner.
[12]
In
circumstances such as these, the court will decide whether or not the
award is reviewable by looking at all the evidence available,
the
documentary evidence and the record as incomplete as it may be.
[2]
It is however well established that an applicant who seeks relief in
a review on the basis of an incomplete or defective record
runs the
risk that it will be unsuccessful on that ground alone.
[3]
The
Applicant’s Grounds of Review
[13]
Mr
Snyman, who appeared for the applicant, submitted correctly that the
applicant’s first and second grounds of review pertain
to
whether the CCMA had jurisdiction to entertain the dispute before it
and that, this being the case, the review test of
constitutional reasonableness established in the
Sidumo
judgment
[4]
does not apply. Instead, the applicable test is whether,
objectively speaking, the facts which would give the CCMA
jurisdiction
to entertain the dispute existed.
[5]
[14]
The applicant’s
contention that the employees were not dismissed but that their
employment terminated automatically is founded
on two key factual
allegations, namely:
14.1
that each of the
employees was employed on a fixed term contract directly linked
to the continuation of the service agreement
between the applicant
and CAPM Gold; and
14.2
that on 11 August 2013,
CAPM Gold gave written notice of the termination of the service
agreement with the applicant and of the
fact that it would no longer
require the services of investigators.
[15]
In argument, Mr Snyman
accepted that the applicant’s contention that the employees’
employment terminated automatically
depends on establishing the
existence of these two facts.
[16]
In my view, neither of
these facts is established on the record before me. In relation to
the former, the employees’ contracts
of employment do not
appear to have formed part of the documentary evidence presented at
the arbitration. A single page of
a contract of employment does
form part of the record. It is however not clear who it belongs to.
It is incomplete and unsigned.
Notably, it does not appear to be a
fixed term contract.
[17]
Relevant to the second
factual question is a letter from CAPM Gold to the applicant dated 11
August 2013 which reads as follows:
“
CAPM-Orkney
has reviewed the contract we have with Vusisizwe (Pty) Ltd and have
come to a conclusion that we no longer require your
services of
investigators. We therefore formally instruct you to terminate your
investigation services with CAPM with immediate
effect due to the
fact that CAPM is not operational as planned initially.”
[18]
While it is apparent
from this letter that CAPM Gold sought to terminate the services of
the investigators placed with it by the
applicant, it is by no means
clear that it sought to terminate the entire service agreement with
the applicant. Moreover, neither
this letter nor any other aspect of
the record, provides any clarity as to the nature and extent of the
service agreement between
the applicant and CAPM Gold.
[19]
So much for the
documentary evidence handed in at the arbitration. The Commissioner’s
hand-written notes fail to shed any
further light on these issues.
That, as stated above, is the full extent of the record before me.
[20]
The applicant has
therefore failed to demonstrate that the key facts asserted by it in
support of its contention that the employees
were not dismissed were
in existence at the time of the arbitration. This ground of review
must accordingly fail.
[21]
The applicant’s
second ground of review is based on the contention that because the
Commissioner found that the employees
ought to have been dismissed
for operational requirements, the dispute before him was one about
retrenchment, which the CCMA lacked
jurisdiction to entertain. This
contention is, in my view, illogical on its face. It is, moreover, at
odds with the applicant’s
own version of events pertaining to
the termination of the employees’ contracts of employment. The
applicant’s version
is as follows:
22.1
On 13 August 2013 the
applicant suspended the employees. No reasons were given.
22.2
On 22 August 2013 the
applicant terminated the employees’ employment. The
reason given was that their “period
of employment had expired.”
22.3
No hearing was held
prior to the termination of the employees’ employment.
22.4
No consultation in
terms of section 189 of the LRA was held prior to the termination of
the employees’ employment.
22.5
There has never been
any suggestion by the applicant that it was retrenching the
employees.
[22]
There
is accordingly, on the applicant’s own version, not a single
fact in support of the contention that the employees were
retrenched.
The Commissioner ruled that the applicant ought to have followed the
procedure set out in section 189 of the LRA prior
to dismissing the
employees, not that it did so.
[6]
Plainly, it did not. The dispute before the Commissioner was
therefore not one about retrenchment.
[23]
It follows that the
applicant’s attempts to review and set aside the award on the
basis that the CCMA lacked jurisdiction
to entertain the dispute must
fail.
[24]
The applicant did not
seek to impugn the Commissioner’s findings that the employees
were dismissed by the applicant, and unfairly
so, on any other basis.
Those findings must accordingly stand.
[25]
I am however of a
different view in relation to the applicant’s third ground of
review, namely whether the reinstatement granted
by the Commissioner
was reasonable. Irrespective of whether or not CAPM Gold terminated
the entire service agreement it had with
the applicant, it is clear
from the letter quoted above that it indicated that it no longer
required the services of the investigators
placed with it by the
applicant. Those were the positions held by the employees prior to
their dismissal.
[26]
The
ordinary meaning of “reinstate” is to put the employee
back into the same job or position he or she occupied before
the
dismissal, on the same terms and conditions.
[7]
On the record before me, the investigator positions occupied by the
employees at CAPM Gold no longer existed after August
2013. This is
therefore a case in which the reinstatement of the employees is not
reasonably practicable within the meaning of
section 193(2)(c) of the
LRA.
[27]
I
am therefore of the view that the Commissioner’s award, to the
extent that it awarded the employees reinstatement, is
unreasonable.
[8]
[28]
With reinstatement
being excluded on the basis that it is not reasonably practicable,
the employees would be entitled to compensation.
While I am of the
view that there is sufficient in the record to enable me to set aside
the Commissioner’s reinstatement
order, the record as a whole
does not place me in a position in which I can with confidence
substitute a determination with regard
to the compensation that ought
to be awarded to the employees. This is particularly so having regard
to the allegations made by
the applicant to the effect that the
Commissioner got the salaries of certain of the employees wrong and
therefore incorrectly
calculated their backpay.
[29]
I am therefore of the
view that the appropriate order would be one remitting the matter to
the CCMA for the question of the relief
to be granted to the
employees to be determined afresh.
[30]
I therefore make the
following order:
1.
The finding in paragraph 21 of the award,
namely that the dismissals of the employees were substantively and
procedurally unfair
is upheld.
2.
The findings in paragraphs 22 to 25 of the
award concerning the relief granted to the employees is set aside.
3.
The matter is remitted to the second
respondent for the purpose of a fresh determination on the relief to
be granted to the employees.
__________________________
Heidi
Barnes
Acting
Judge of the Labour Court
Appearances:
For
the Applicant: S Snyman of Snyman Attorneys
[1]
Act 66 of
1995.
[2]
Doornpoort
Kwik Spar CC v Odendaal and Others
(2008) 29
ILJ 1019 (LC) at para 7.
[3]
Metologik
Engineering & Manufacturing CC v Fernandes and others
(2002) 23
ILJ 1592 (LC) at para 10. See also
JDG
Trading (Pty) Ltd t/a Russells v Whitcher NO and others
(2001) 22 ILJ 648 (LAC) at para 9 and
Doornpoort
Kwik Spar CC v Odendaal and Others
(2008) 29 ILJ 1019 (LC) at para 7.
[4]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2008) 2 SA
24
(CC); (2007) 28 ILJ 2405 (CC) at para 110.
[5]
SA Rugby
Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008) 29 ILJ 2218 (LAC) at paras 40 and 41;
Universal
Church of the Kingdom of God v Myeni and Others
(2015) 36 ILJ 2832 (LAC) at para 27.
[6]
The
Commissioner made this clear in his award when he said the
following: “
The
Respondent should have, but did not, dismiss the Applicants for
operational requirements. It simply terminated their contracts.
In
this case, section 189 of the LRA provides clear directives on how
such dismissals are to be effected. It is my view that
the
respondent seriously flouted the Applicants’ right to fair
treatment simply to satisfy the demands of its client. Such
demands
were, from the evidence submitted by the Respondent, not even
substantiated by any form of details.”
[7]
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and others
[2008] ZACC 16
;
2009 (1) SA
390
(CC) at para 36;
Gijima
AST Ltd v Hopley
(2014)
35 ILJ 2115 (LAC) at para 48
[8]
Xstrata
SA (Pty) Ltd (Lydenburg Alloy Works) v National Union of Mineworkers
on behalf of Masha and others
(2016)
37 ILJ 2313 (LAC)