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[2019] ZALCJHB 32
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Fidelity Security Service (Pty) Ltd v SOCRAWU obo Nengwekhulu and Others (JR917/16) [2019] ZALCJHB 32 (25 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
No: JR 917/16
In
the matter between:
FIDELITY
SECURITY SERVICE (PTY) LTD
Applicant
and
SOCRAWU OBO KNOXWELL
NENGWEKHULU
& 1 OTHER
First
Respondent
NORMAN
MBELENGWA
N.O
Second Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Third Respondent
Heard: 13
February 2019
Delivered:
25 February 2019
Summary:
Unfair labour practice. Reinstatement of suspended employee not
competent relief where it turned out during arbitration
that the
employee was dismissed prior to commencement of arbitration
proceedings. The award reviewed and set aside in so far as
the relief
of reinstatement awarded by the arbitrator.
JUDGMENT
BALOYI,
AJ
Introduction
[1]
This application entails an arbitration award issued out by the
second respondent
who ruled that the suspensions of K Nengwekhulu and
M Ncube (the individual employees) cited herein as the first
respondent amounted
to an unfair labour practice. He further
ordered the applicant to reinstate them and pay each of them an
amount equivalent
to 5 months’ remuneration for the arrear
salaries. The applicant also made a substantive application for
condonation of the
late filing of the review application.
Further, details on this point appear herein below.
Factual
background
[2]
The applicant initiated disciplinary proceedings against the
individual employees
following certain complaints of stock losses
from its client. They were placed on suspension pending finalization
of the disciplinary
hearing processes. On conclusion of the hearing
they were informed that the outcome will be communicated to them.
They were prompted
to refer an unfair labour practice dispute as they
did not hear from the applicant coupled with the fact that they were
not remunerated
for the whole period of waiting for the outcome. The
applicant alleges that the employees were informed by Mr Mbatha that
they were found not guilty and should come back to work. They did not
report for duty and the applicant then decided to dismiss
them for
absconding. The second respondent ruled in favour of the individual
employees and awarded them relief as stated above.
The
review application
[3]
The applicant is challenging the
arbitration award issued on 24 August 2015 on account
of the second
respondent’s failure to consider all the relevant facts placed
before him. The applicant’s main contention
is that Mr Mbatha
informed the individual employees after their acquittal in the
disciplinary hearing to return to work. Secondly,
that the award was
irrational and unreasonable for his failure to consider that the
employees should have referred an unfair dismissal
dispute instead of
unfair labour practice dispute. This is raised in the wake of a
statement made at the commencement of the arbitration
proceedings
that their services were terminated for abscondment after the issuing
of the disciplinary hearing outcome.
[4]
According to the applicant the arbitration award dated 24 August 2015
came to its
attention for the first time on 29 April 2016 through the
Sheriff of the Court who came to its premises for execution purposes.
This application was filed on 17 June 2016 and the applicant
submitted that the period of delay counting from 29 April 2016 is
7
days. The delay is attributed to internal investigations undertaken
in its offices to trace the file of the matter. Thereafter,
further
difficulties were experienced due to the applicant’s attorneys’
reliance on Docex facilities in filing Court
documents.
[5]
The first respondent in opposition of the application denied that the
applicant only
became aware of the award on 29 April 2016. Mr
Nengwekhulu specifically pointed in his answering affidavit that he
had personally
attended to the service of the award on the applicant
on 24 August 2016. Mr Aubrey Mkhonto refused to accept service and
intimated
that the applicant had intentions of reviewing the award.
The applicant did not file a replying affidavit to deal with this
allegation.
[6]
In argument, as pointed out by Mr Crafford for the applicant, it came
out clearly that the
application is rested upon three points.
Firstly, that the second respondent misdirected himself by not
acceding to the applicant’s
request to proceed with an unfair
dismissal dispute since the unfair labour practice dispute had become
academic in view of the
individual employees’ dismissal.
Secondly, the second respondents were misdirected by ordering the
immediate lifting of the
suspension whilst the applicant had long
lifted the suspension following the disciplinary hearing outcome.
Thirdly, the reinstatement
order was not competent as it was already
submitted before the second respondent that the individual employees
were dismissed after
their suspension was lifted by the applicant.
[7]
In support of the employees’ case, as argued by Mr Nengwekhulu
for the first
respondent, there was no way that the second respondent
would accept that the employees were duly informed by Mr Mbatha to
come
back to work in the absence of proof of such communication.
Secondly, the applicants only knew about their dismissal for a reason
other than the one they were charged for on the date of arbitration
proceedings. The second respondent was not misdirected
in
proceeding with the unfair labour practice dispute as they were at
all times placed under suspension without pay. The applicant’s
problems were compounded by its failure to produce the individual
employees’ letters of dismissal and to demonstrate as to
how
they were notified about their dismissals.
Evaluation
[8]
The applicant is inescapably required to pass through condonation of
the late fling of the review
application before the Court can deal
with the review itself. Given the facts of the matter it is
probable that the applicant
became aware of the award on 24 August
2015 when Mr Nengwekhulu attempted to serve it on Mr Mkhonto.
[9]
In terms of section 145 (1) of the Labour Relations Act
[1]
(LRA) the applicant was required to file this application within six
weeks after having been served with the award. In terms
of
section 138 (7)(b) of the LRA the
commission
must
[2]
serve the copy of the award to both parties or their respective
representatives
.
In
the absence of evidence that the Commission for Conciliation,
Mediation and Arbitration (CCMA) served the applicant with the
copy
of the award as provided for in section 138, I am inclined to accept
that the applicant only received copy of the award from
the Sheriff
of the Court on 29 April 2016. Although the applicant’s
reasons for the delay are not so compelling, the
slight period of the
delay of seven days does not reveal any prejudice suffered or to be
suffered by the first respondent.
The relevant points on
prospects of success are reserved for discussion below. On this
note I am satisfied that this matter
deserves to be ventilated on its
merits and condonation should accordingly be granted.
[10]
The core of the applicant’s case is that one Mr Mbatha
communicated with the individual employees to
inform them to come
back to work after their acquittal. This was denied and the
applicant never made attempts to call Mr
Mbatha to testify on this
aspect. Based on the evidence before the second respondent, he
cannot be faulted for finding that
the individual employees were up
until the date of arbitration still suspended which suspension was
ultimately found to be unfair.
[11]
It undisputable that the word of their dismissal only came on the
date of arbitration proceedings and that
the second respondent was
made aware of this. This point turns on the relief of reinstatement
that has been awarded. The second
respondent has correctly ordered
payment of arrear salaries for the period in which the employees were
not at work due to suspension.
On hearing that they were dismissed,
which appeared to be breaking news for them, the second respondent
should not have awarded
reinstatement to remedy the unfair labour
practice committed by the applicant. Awarding of this relief is in no
doubt within the
competency of the arbitrator tasked with the
determination of an unfair dismissal dispute, a dispute which the
second respondent
had correctly refused to deal with. In this regard
the second respondent has exercised the powers which he was not
supposed to.
Without hesitation the second respondent’s award
deserves this Court’s interference.
Costs
[12]
I have a wide discretion in this respect, and therefore in my view it
will not be within the requirements
of law and fairness to make a
cost order in circumstances where no party has an outright claim of
success in this application.
[13]
In the premises, I make the following order:
Order
1.
The arbitration award under case number
GAJB 11182/15 is reviewed and set aside and replaced with an order
that:
1.1
The applicant committed unfair labour
practice by suspending K Nengwekhulu
and M Mncube without pay.
1.2
The applicant is ordered to pay Nengwekhulu
and Mncube the unpaid salaries for the
period of their
suspension, that is R3 344.64
x 5 months = R 16 732.20 each.
1.3
These payments must be made within 14 days
of this order.
2.
There is no order as to costs.
_________________________
MM
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant: Mr
C Crafford of Crafford
Attorneys
For
the First respondent: Mr M Nengwekhulu of Nengwekhulu
Attorneys
[1]
66 of 1995, as amended.
[2]
Own emphasis.