About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 434
|
|
Sithole v Metal and Engineering Industries Bargaining and Others (JR318/15) [2017] ZALCJHB 434; (2018) 39 ILJ 472 (LC) (24 November 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR 318/15
In
the matter between
:
SITHOLE,
JOEL
Applicant
and
METAL AND ENGINEERING
INDUSTRIES BARGAINING First
Respondent
JOSEPH MPHAPHULI
NO
Second Respondent
SPRAY SYSTEM
SPECIALISTS (PTY) LTD
Third
Respondent
Heard:
16
November 2017
Delivered:
24 November 2017
Summary:
Review application – applicant dismissed because he did not
have a work permit – arbitrator
upheld the dismissal –
arbitrator misconstrued the applicable legal principles – award
reviewed and set aside.
JUDGMENT
NKUTHA-
NKONTWANA J
Introduction
[1]
In this
application the applicant seeks an order reviewing and setting aside
the arbitration award delivered by the second respondent
(the
arbitrator) on 7 February 2012 under case number MEG44497. The second
respondent found that the applicant was not dismissed
as he had
rendered himself unemployable by failing to secure a work permit. The
third respondent was not present in court despite
having been
properly notified of the set down. As a result, the proceedings
proceeded in its default.
[2]
The
applicant’s main ground of review is that the arbitrator
committed a reviewable irregularity by misconstruing the applicable
legal principles.
Background
facts
[3]
The
applicant is a Zambian national. He argued that he was dismissed
because he had asked for protective clothing. He had been in
the
employ of the third respondent since 2009 initially as a gardener and
subsequently as a general worker. He was earning R24.20
an hour at 40
hours per week.
[4]
The third
respondent asserted during the arbitration proceedings that on 8
September the applicant was given 3 days to sort out
his work permit
issues. He has been provided with relevant paperwork that would have
assisted him to apply for the work permit.
Instead of seeking a work
permit, the applicant claimed unfair dismissal.
[5]
According
to the applicant, the department of Home Affairs refused to accept
the letter he had been provided with but wanted more
information. The
third respondent refused to assist the applicant and told him to
never come back.
[6]
The
applicant argued that he was not afforded an opportunity to state his
case fully before the arbitrator as the arbitrator interrupted
him
when he was giving evidence.
Legal
principles and analysis
[7]
It is trite
that the failure by an arbitrator to apply his or her mind to issues
which are material to the determination of a case
will usually be an
irregularity. However, before such an irregularity will result
in the setting aside of the award, it must
in addition, reveal a
misconception of the true enquiry or result in the setting aside of
the award or result in an unreasonable
outcome.
[1]
[8]
In terms of
section 38(1) of the Immigration Act
[2]
‘…no person shall employ an illegal foreigner; a
foreigner whose status does not authorise him or her to be employed
by such person; or a foreigner on terms, conditions or in a capacity
different from those contemplated in such foreigner's status’.
[9]
In
Discovery
Health Limited v Commission for Conciliation, Mediation and
Arbitration and Others
,
[3]
the Court, dealing with a similar issue, had to determine,
inter
alia
,
whether
the legislature intended that a contract of employment concluded in
circumstances where any party to the agreement was in
breach of the
legislation is necessarily invalid. A thorough exposition of the law
has been undertaken in
Discovery
Health
and I do not wish to repeat, save to refer to the following relatable
remarks:
‘
There is a sound policy reason
for adopting a construction of s 38(1) that does not limit the right
to fair labour practices. If
s 38(1) were to render a contract of
employment concluded with a foreign national who does not possess a
work permit void, it is
not difficult to imagine the inequitable
consequences that might flow from a provision to that effect. An
unscrupulous employer,
prepared to risk criminal sanction under s 38,
might employ a foreign national and at the end of the payment period,
simply refuse
to pay her the remuneration due, on the basis of the
invalidity of the contract. In these circumstances, the employee
would be
deprived of a remedy in contract, and if Discovery Health’s
contention is correct, she would be without a remedy in terms
of
labour legislation. The same employer might take advantage of an
employee by requiring work to be performed in breach of the
BCEA, for
example, by requiring the employee to work hours in excess of the
statutory maximum and by denying her the required time
off and rights
to annual leave, sick leave and family responsibility leave. It does
not require much imagination to construct other
examples of the abuse
that might easily follow a conclusion to the effect that the
legislature intended that contract be invalid
where the employer
party acted in breach of s 38(1) of the Act. This is particularly so
when persons without the required authorisation
accept work in
circumstances where their life choices may be limited and where they
are powerless (on account of their unauthorised
engagement) to
initiate any right of recourse against those who engage them.’
[10]
As a final
point, the Court stated that:
‘
a)
The contract of employment concluded by Discovery Health and Lanzetta
was not invalid,
despite the fact that Lanzetta did not have a valid
work permit to work for Discovery Health. For this reason, Lanzetta
was an
'employee' as defined in s 213 of the LRA and entitled to
refer the dispute concerning his unfair dismissal to the CCMA.
b)
Even if the contract concluded between Discovery Health and Lanzetta
was invalid only
because Discovery Health was not permitted to employ
him under s 38(1) of the Immigration Act, Lanzetta was nonetheless an
'employee'
as defined by s 213 of the LRA because that definition is
not dependent on a valid and enforceable contract of employment.’
[11]
In this
case, it is apparent from the transcribed record that the
commissioner was overly fixated with the fact that the applicant
did
not have a work permit and as a result he failed to address a
question that was raised for determination
and
to
properly consider the relevant material facts placed before him. He
ignored the applicant’s evidence that he had been employed
for
about five years. That the issue of a work permit was raised for the
first time after he had requested the protective clothing.
That the
third respondent refused to assist him with relevant documents that
would have enabled him to get a work permit. After
the three days
leave he had been given, the third respondent refused to allow him to
work and he was told never to come back.
[12]
In my view
the applicant was indeed dismissed and the reason for his dismissal
was his failure to secure a work permit despite his
endeavours to
secure one and the fact that the third respondent did not assist him.
It is clear that the third respondent has been
reaping the benefits
of the applicant’s employment without bothering about its
legality for about five years.
[13]
I
accordingly align myself with the Court’s findings in
Discovery
Health
[4]
.
The breach of section 38(1) of the Immigration Act was never intended
to shield employers who knowingly, as in this case, or unknowingly
employ a person in breach of the provision from the legal
consequences of terminating such a contract. Immigrant employees
illicitly
employed can vindicate their right to fair labour practice
by availing themselves to the comprehensive machinery of the LRA.
[14]
In line
with
Discovery
Health
[5]
,
it is my view that the termination of the applicant’s
employment amounts to dismissal within the meaning of section
186(1)(a)
of the LRA. Also, the facts alluded to above clearly show
that the said dismissal was unfair.
Conclusion
[15]
In all the
circumstances, I find the commissioner to have misconceived the true
nature of the enquiry in that he failed to address
a question that
was raised for determination and to properly consider the relevant
material facts placed before him. The award
accordingly stands to be
reviewed and set aside for lack of reasonableness.
[16]
In the
interest of justice and in line with the tenet of this Court to be
hesitant to remit a dispute back to the first respondent
because of
the resultant delays, I deem it appropriate not to remit this matter
back to the first respondent. Having had the benefit
of reading the
record, pleadings and hearing of oral argument, I am in a position to
deal with the matter conclusively. For all
the reasons alluded to
above, I find that the dismissal of the applicant was substantively
and procedurally unfair.
[17]
Since the
applicant has no wish to be reinstated despite having secured an
asylum permit which allows him to be employed legally,
I now deal
with compensation in terms of section 193(1)(c) of the LRA. I have
considered the applicant’s length of service
and the manner in
which he was dismissed in order to determine the appropriate
sanction. I am of a view that a compensation equivalent
to four
months’ salary is fair in the circumstances.
Costs
[18]
Since the
applicant appeared in person, the issue of costs does not arise.
[19]
In the
result, I make the following order.
Order
1.
The
arbitration award is reviewed and set aside and replaced with the
following order:
1.1
The dismissal of the applicant, Mr Sithole, is substantively and
procedurally
unfair.
1.2
The third respondent, Spray System Specialist (Pty) Ltd, is ordered
to pay the
applicant, Mr Sithole, an amount equivalent to four
month’s wages at the time of dismissal; that is R15 680.00.
1.3
The order in paragraph 1.2 must be effected within a month from the
date of
this judgment.
2.
There is no
order as to costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
applicant:
Ms J Sithole, unrepresented
For the respondent:
No appearance for the respondent
[1]
Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC)
; Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074
(SCA); Gold Fields Mining South Africa
(Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation
and Arbitration and
Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at paras
14 to 16 and
Department of
Education v Mofokeng Head of the Department of Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[2]
No. 13, 2002.
[3]
[2008] ZALC 24
;
[2008] 7 BLLR 633
(LC); (2008) 29 ILJ 1480 (LC) at para 54.
[4]
Supra.
[5]
Supra.