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[2018] ZALCJHB 375
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Ideal Security Services CC v CCMA and Others (JR 1043/15) [2018] ZALCJHB 375 (10 October 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
CASE
NO:
JR
1043/15
In the matter
between:
IDEAL
SECURITY SERVICES CC
Applicant
and
CCMA
And
Others
Respondents
Heard
: 10 October 2018
Delivered
: 10 October 2018
Edited
: 08 November 2018
EX
TEMPORE
JUDGMENT
MOSHOANA,
J
[1]
This
is an application seeking to review
and set aside an arbitration award issued by the second respondent in
terms of which a finding
was made that the third respondent, Mr
Armond Wolfaardt was dismissed on 9 January 2015, and such a
dismissal was found to be procedurally
and substantively unfair.
And as a result, an order of compensation was made.
[2]
Briefly, the facts relevant to this matter
are as follows:
[3]
The third respondent was employed as a
senior technician by the applicant. Around 20 January 2014 - he was
injured on his hand and
received medical treatment for a period.
Almost a year later, on 9 January 2015, the third respondent, was
called to a meeting.
It is the third respondent’s contention
that out of that meeting he was dismissed. On 19 January 2015 he then
approached
the first respondent, being the Commission for
Conciliation, Mediation and Arbitration, seeking assistance with
regard to the dispute
of an alleged unfair dismissal.
[4]
The second respondent was appointed by the
first respondent to resolve the dispute through an arbitration
process. After hearing
all the evidence, the second respondent issued
an award in favour of the third respondent. One of the issues
that was raised
before the second respondent, was that the third
respondent was not dismissed. In other words, the jurisdiction
of the CCMA
was challenged by the applicant before me. The second
respondent came to a conclusion that the CCMA had jurisdiction and
issued
an award, as I pointed out, in favour of the third respondent.
[5]
The applicant was aggrieved thereby, and on
9 July 2015 it then launched a review application. Around 24 November
2016 a Rule 11
application was launched, which Rule 11 application,
was not enrolled before me today. And earlier, I had dealt with
the
issue regarding the Rule 11 application, and the third
respondent’s representative, correctly so, decided not to
proceed
with the Rule 11 application. So, for that matter, it is
unnecessary to even say anything further with regard to the Rule 11
application.
[6]
The main ground for review is simply that
the second respondent came to a wrong conclusion that there was a
dismissal. To put it
differently, the commissioner was wrong when he
concluded that he has jurisdiction to entertain the dispute.
[7]
It is by now trite that the test for
determining whether a ruling is reviewable, where jurisdiction does
not exist, is that of whether
on the objective facts, was the
arbitrator correct in coming to the conclusion that a jurisdictional
fact exists? In this case,
whether the dismissal did exist as a fact.
[8]
It
is common cause before me that the third respondent was injured, and
was unfit to do his work. It is also common cause that on
9 January
2015 there was a meeting between the third respondent and the owner
of the applicant, together with other parties. In
that meeting, words
to the following
effect were mentioned or uttered by the
owner. They were said in Afrikaans:
“
Nul
op ‘n kontrak
”
.
[9]
It
appears to be common cause between the
parties that loosely translated, the words mean that
you
are a zero on a contract
.
[10]
The
third respondent interpreted those words to mean that he was
dismissed. In addition, the third respondent indicated that because
he was laid off and not allowed to return to work, therefore he had
been dismissed
and accordingly, on the facts, there was a
dismissal.
[11]
Fortunately for this court, the Labour
Relations Act defines what a dismissal is. Section 186(1)(a) of the
Labour Relations Act
provides as follows:
“
Dismissal
means that an employer has terminated employment with or without
notice.”
[12] Clearly, that
requires an action on the part of the employer to terminate the
contract. It does not require any interpretation,
as it was in
this case.
[13]
The issue received legal attention by the
Labour Appeal Court in the matter of
The
South African Post Office Ltd v Mampuele
[1]
.
Therein, the court made it very clear that there must be an overt
statement by the employer terminating an employment contract.
[14]
Now, in this instance, on the facts, one
fact that stands out like a sore thumb, is that on 12 January 2015
the third respondent’s
wife sent the sick notes to the
applicant. The question that immediately arises is, if indeed the
third respondent was dismissed
on 9 January 2015, why sick notes are
sent to the applicant?
[15]
As if that is not enough, the owner of the
applicant made it clear in no uncertain terms that the third
respondent was not dismissed.
But with all that, the third respondent
decided to lodge a dispute of an alleged unfair dismissal on 19
January 2015.
[16]
Section 192 of the Labour Relations Act is
very clear that the onus is on an employee to establish the existence
of a dismissal.
In other words, the fact that a dismissal had
happened must be established. In the absence of establishing
the existence
of the dismissal, there is no obligation on the part of
the employer to prove that a dismissal – which has not occurred
–
is one that is fair.
[17]
Returning to the test in jurisdictional
reviews, the facts that were presented before the second respondent
clearly points, objectively
viewed, to the fact that dismissal did
not occur, and the interpretation by the third respondent of the
words that were mentioned
earlier in this judgment, is not consistent
with the evidence of the owner and the steps that were taken by the
third respondent
and his wife.
[18]
Therefore,
on the objective facts, the conclusion that the third respondent was
dismissed is wrong. Since dismissal was not proven,
the CCMA lacked
jurisdiction. The award issued is a nullity as there was no
jurisdiction
.
[19]
In
the results I make the following order:
Order
1.
The award issued by the second respondent
is hereby reviewed and set aside.
2.
It is replaced with an order that the CCMA
lacked jurisdiction, since the third respondent not dismissed.
3.
I
make no order as to costs.
GN Moshoana
Judge of
the Labour Court of South Africa
.
[1]
[2010] 10 BLLR 1052
(LAC)