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[2018] ZALCJHB 212
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Cronos Airlines International (Pty) Ltd v Ngwenya NO and Others (JR1679/16) [2018] ZALCJHB 212 (30 May 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not reportable
-Case No: JR 1679/16
In the matter between:
CRONOS AIRLINES
INTERNATIONAL (PTY)
LTD
Applicant
and
COMMISSIONER DUMISANI
JOHANNES NGWENYA
N.O
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second
Respondent
WAYNE NICOLAS VINCENT
FORGET
Third
Respondent
Heard: 30 May 2018
Order: 30 May 2018
Date of Reasons:
11 June 2018
Summary: Review
Application- Test for review restated-The employee was not dismissed
by the employer, taking into account the totality
of the evidence
presented before the arbitrator- Dismissal finding is set aside and
replaced with an order that the employee was
not dismissed.
JUDGMENT-REASONS
FOR ORDER
MABASO
AJ:
Introduction
[1]
Forthwith arguments, on 30 May 2018, I made the following order:
1. The arbitration award
made by the first respondent, acting under the auspices of the second
respondent, under case number GAEK9450/15,
dated 10 July 2016, is
reviewed and set aside, and replaced with an order that,
“
the employee’s
unfair dismissal referral to arbitration, under case number
GAEK9450/15 is dismissed.”
2. That the third
respondent be ordered to pay costs.
These
are the reasons for the above order.
[2]
Material errors of facts and weight attached to a particular set of
facts are not ordinarily grounds for review, the only time
whereby
the reviewing court will interfere with an arbitration award, if
asked to do so, is when such errors have an adverse effect
on the
outcome of the case which prevented the parties from having a fair
trial of issues. A reviewing court has to take into account
the
totality of the evidence that was properly presented before the
arbitrator.
[1]
[3]
The applicant approached this Court, by way of a review application,
seeking an order that an arbitration award issued by the
first
respondent acting under the auspices of the Commission for
Conciliation, Mediation and Arbitration (CCMA) under case number
GAEK9450/15 dated 10 July 2016 be reviewed and set aside, and be
replaced with an order that the third respondent’s referral
to
the CCMA be dismissed. The third respondent vigorously opposed this
application. Both parties, the applicant and third respondent,
emphatically asked for costs order against each other.
The
parties
[4]
The applicant is Cronos Airlines International (Proprietary) Limited
(hereinafter referred to as the ‘Applicant’).
The first
respondent is the arbitrator who acted within the scope of the second
respondent, which is the CCMA. The third respondent
is Wayne Nicolas
Vincent Forget (hereinafter referred to as ‘the employee’),
and he is the only party opposing the
review.
Brief
background
[5]
The employee joined the Applicant as a Flight officer on 10 November
2014.
[2]
On 19 October 2014 he
attended a meeting which had been organised by Mr Lycos of the
Applicant, therein the employee was presented
with the letter (‘the
notice’) which partly reads as follows:
‘
It is with regret
that [the applicant] is obliged to inform you that your services are
to be retrenched operational requirements,
there are no practical
alternatives to avoid the retrenchment, as you are aware [the
applicant] is under extreme financial stress…’.
[3]
[6]
After this meeting the employee declared an unfair dismissal dispute
with the CCMA against the applicant claiming that he was
dismissed
and that his dismissal was both procedurally and substantively
unfair. Following the non-resolution of the dispute during
the
conciliation, the dispute was referred to arbitration wherein the
arbitrator was appointed to arbitrate the dispute. Before
the
arbitrator, the applicant disputed that it had dismissed the
employee. Under those circumstances, the employee had to lead
evidence to show that he was dismissed.
[4]
On the other hand, the applicant presented the testimony of Mr Laycos
in its effort to dispel the allegations of dismissal.
[7]
At the end of the arbitration, the arbitrator proceeded to issue an
arbitration award, which is the subject of this review application,
concluding that the employee was dismissed and his dismissal was
procedurally and substantively unfair. He then ordered the applicant
to pay the employee compensation equivalent to 6 months of his
salary, and no reinstatement order was made. The arbitrator in his
arbitration award held that the main issue before him was whether the
termination that took place on 19 October 2016 was the alleged
dismissal or not. In concluding that it was a dismissal, he took into
account the contents of the notice and proceeded to conclude
that:
‘…
the
perusal of the content of the letter leaves one with no doubt that
the applicant was confronted with a fait accompil in that
the
document is no more than an advise that the latter is been retrenched
and expected to sign acknowledgement and acceptance of
same. These
foregoing established facts evinced the intention on the part of the
respondent not to continue to be bound by the
contract of employment
it had with the applicant. There was no desire on the part of the
respondent to continue honouring the contract.
The reasonable
deduction is that the respondent’s conduct was the trigger and
the proximate cause for the termination of
the employment contract
and thus amounted to dismissal within the meaning of the Act. I
according to determine that the applicant
has established the
existence of dismissal.’
[5]
Grounds
of review
[8]
The applicant’s grounds of review included the following: that
the arbitrator made an error of facts by disregarding evidence
which
was presented before him, in that, the notice that was given to the
employee was a discussion document intended to initiate
negotiations
towards possible retrenchment and it was not signed by either party,
further that during this meeting the employee
was asked as to whether
he was willing to accept such offer as he was also given an
opportunity to communicate with his attorneys
regarding the contents
of the notice, which did and was advised that should not accept such
a proposal and he acted in accordance
with such advice.
[9]
During this meeting, the employee made it clear that he did not want
to work for the applicant anymore as he had previously(on
25
September 2015) consulted with his attorney with the view of
terminating his employment with the applicant and seek
compensation.
[6]
That when the
employee was presented with the notice, he saw an opportunity to
obtain financial benefit from the applicant.
Applicable
principle and application thereof
[10]
In deciding whether or not an arbitrator made an error of facts which
affected his outcome, in determining jurisdiction to
arbitrate an
alleged unfair dismissal dispute, the LAC summarised the law in
Kukard v
GKD Delkor (Pty) Ltd
[7]
thus,
‘
I now turn to
question of whether the CCMA had jurisdiction to deal with this
dispute. Since the jurisdiction of the CCMA is intrinsic
to the
purported dismissal of the appellant as defined in s186 of the LRA,
this Court must first determine whether,
on
an objective assessment of the evidence,
the Labour Court was correct in setting aside the Commissioner’s
finding that the appellant was dismissed by Delkor within
the meaning
of s186(1)(a) of the LRA.
In
determining whether the CCMA has jurisdiction to deal with a dispute,
the Labour Court is not limited to the Sidumo (reasonableness)
test
of review, but may determine the issue de novo.’
[8]
[11]
Subsection 192(1) of the LRA places an onus of proof on the employee
to prove that he was dismissed, and once it has been found
that
indeed he was dismissed, then the onus shifts to the employer to show
that such dismissal was fair.
[9]
[12]
To objectively assess the evidence that was properly presented before
the arbitrator, the reviewing court has to take into
account the
totality of such evidence which will include the evidence presented
during examination in chief, cross-examination
and re-examination. It
is further important to consider the documents that the witnesses,
for both the applicant and employee,
led evidence on.
[13]
Without hesitation, the arbitrator solely relied on the notice
concluding that the employee was dismissed. It is submitted
that the
arbitrator did not apply his mind to what transpired during the
cross-examination of the employee and to what the applicant
properly
presented before him. Highlighted below is some of the evidence that
was properly placed before the arbitrator.
[14]
In a letter dated 24 October 2015, which was sent to the employee, Mr
Lycos, who was part of the meeting
in casu
, summarised partly
thus:
‘…
As a step
towards that possible decision, I decided that to discuss possibility
with [the employee] on …19 October 2015.
I discussed with him
if you would conceptually agree to a retrenchment which would offer
him payment in full for all amounts owed
to him for his service,
notice pay, and leave pay. In exchange[the employee] would waive any
and all claims against [the Applicant].
It
was during this discussion that [the employee] revealed that he could
not agree to such terms as he was already planning to resign
and was
preparing to file legal action against the company immediately
thereafter. In an effort to preserve his right to file such
action he said he could not agree to a retrenchment on such
terms.
’
[10]
And
this letter further reads as follows
“
It was at this
point that [the employee] and I
had
a broader conversation about his consent and we agreed that since he
found the terms of the possible retrenchment unacceptable,
we would
not pursue that path
.
However, we were agreed that the since he no longer wanted to work
for [the applicant], that 19 October would be his last day
and that
he would have you send me his settlement terms in the coming days. I
considered this his verbal resignation as the retrenchment
document
provided was a discussion point, and unsigned by myself and [the
employee] and not executed nor [the applicant’s]
official
position”.
[11]
[15]
In examination-in-chief, the employee’s representative asked
him about the contents of this letter and the employee did
not
distance himself from it. The contents of the letter corroborated
what Mr Lycos presented during the applicant’s evidence
in
chief.
[16]
The employee, during cross-examination, conceded that when he was
approached on 19 October 2015 by Mr Lycos, he saw an opportunity
to
extract financial benefit from the applicant. His cross-examination
partly was as follows:
‘
ADV THOMSON: And
so when Mr Lycos presented you with the
discussion document
it presented you with the perfect opportunity now get a settlement of
the money that you want… to pay for the training which
you
needed?
[THE EMPLOYEE]: Correct,
about three weeks later, no more than a month later.”
[12]
ADV THOMSON: Let me ask
you this question. At that meeting and after the discussion and the
point that we’re at now, you had
no intention of carrying on
with the employment relationship?’
[THE EMPLOYEE]: No.
[17]
Therefore, based on the above I hereby conclude that the arbitrator
did not apply his mind to evidence that was presented in
support of
the applicant’s version that indeed the employee was not
dismissed, but instead he wanted to resign. Hence it
was agreed
between him and Mr Lycos that “
he would have …
send [ Mr Lycos] his settlement terms in the coming days”.
My
conclusion is also supported by the fact that another letter was sent
to the employee’s attorneys advising him to return
to work as
he was still regarded as the applicant’s employee. Therefore,
had the arbitrator taken all evidence into account,
he could have
concluded that the employee was not dismissed. Thus, the CCMA had no
jurisdiction to arbitrate the dispute.
[18]
In light of my conclusion , I am of the view that further grounds of
review are not relevant as they relate to the procedural
and
substantive fairness of the alleged dismissal.
[19]
In respect of costs both parties passionately asked for the costs to
follow the results, fully aware of the provisions of section
162 of
the Labour Relations Act
[13]
(LRA) and in
casu,
I am of the view that indeed the costs should follow the results.
[20]
Thus I made the order as in paragraph one [1] above.
_____________________
S
Mabaso
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Adv S Swartz
Instructed
by: Christodolou & Mavrikis Inc.
For
the Respondent: Mr Scott
Instructed
by: TKI Scott Attorneys
[1]
Herholdt v Nedbank Ltd 2013 (6) SA 224 (SCA)
[2]
Records: p 3
[3]
Volume 1: p 48
[4]
Ss 192(1) of the LRA.
[5]
Volume 1: p 28.
[6]
Records: p 42
[7]
[2015] 1 BLLR 63 (LAC).
[8]
Ibid at para 12. See also Fidelity Cash Management at para 101, the
LAC said: The Constitutional Court said that they are suffused
by
reasonableness. Nothing said in Sidumo means that the CCMA
arbitration award can no longer be reviewed on the grounds, for
example, that the CCMA had no jurisdiction in a matter or any of the
other grounds specified in sec 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise. Also if the CCMA
made a decision that exceeds its powers in the sense that it is
ultra vires its powers, the reasonableness or otherwise of its
decision cannot arise.
[9]
See
Cooper
and Another v Merchant Trade Finance Ltd
[1999] ZASCA 97
where the SCA held that” If the facts
permit of more than one inference, the court must select the most
“plausible”
or probable inference. If this favours the
litigant on whom the onus rests he is entitled to judgment. If on
the other hand an
inference in favour of both parties is equally
possible, the litigant will have not discharged the onus of proof”
[10]
Court emphasis.
[11]
Court emphasis.
[12]
Court emphasis.
[13]
Act
66 of 1995 as amended.