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[2019] ZALCPE 19
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Motaung v Barloworld Equipment (Pty) Ltd and Others (PR97/2018) [2019] ZALCPE 19 (31 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not reportable
Case
no: pr 97/2018
In
the matter between:
THSEPO
TIMOTHY MOTAUNG
and
BARLOWORLD
EQUIPMENT (PTY) LTD
M
VAN DER MERWE N.O
CCMA
Applicant
First
Respondent
Second
Respondent
Third
Respondent
Heard:
30 October 2019
Judgment:
31 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks to review and set aside a jurisdictional ruling
made by the second
respondent (the arbitrator) on 5 March 2018. In
her ruling, the arbitrator held that the CCMA lacked jurisdiction to
arbitrate
an unfair dismissal dispute referred by the applicant. The
basis of the ruling is that the applicant was employed by a legal
entity
registered in Lesotho, and that the CCMA accordingly lacked
territorial jurisdiction.
[2]
The material facts are recorded on the ruling, and it is not
necessary for me to repeat
them here. The central issue that served
before the arbitrator was whether at the time of his dismissal. The
applicant was employment
by Barloworld Equipment (Pty) Ltd, a company
registered in South Africa, or whether he was employed by Barloworld
Equipment Lesotho
(Pty) Ltd, a discrete legal entity.
[3]
The arbitrator determined the matter by reference to documents
submitted by the parties,
and submissions made by them. As I have
indicated, central to the determination of the jurisdictional dispute
was the status of
the letter of transfer. The letter reads:
‘
Please
note that you have been transferred from Bloemfontein to Lesotho as a
Project Manager: MARC effective 1 November 2013. You
will report for
Christo Coetzee, the Service Manager.’
[4]
The arbitrator records that the applicant’s representative
disputed the letter,
and disputed that it was ever signed. The
dispute notwithstanding, the arbitrator proceeded to make a finding
that the applicant
‘knew’ of his transfer and that it
entailed that he was subject to different laws. What this illustrates
is the undesirability
of arbitrators making factual findings without
hearing evidence. In
South African Social Security Agency v NEHAWU
obo Punzi and 13 others
(2015) 36
ILJ
2345 (LC), his court
held that arbitrators ought not to condone an agreement between
parties to decide a dispute, in the absence
of a stated case, on the
basis of documentary evidence and written submissions. In that case,
the award was set aside and the matter
remitted for rehearing. The
court said the following:
[5]
I fail to comprehend how dispute which hinges on the fairness of the
conduct of an
employer can be decided [in the absence of a stated
case] without parties giving oral evidence…
[6]
The process used in the arbitration proceeding simply does not allow
for a due and
proper arbitration of the dispute…
[8]
In the absence of such a stated case, oral evidence should be lead on
the material
facts in disputed arbitrations in terms of the LRA.
Commissioners and arbitrator should not condone an agreement between
parties
that no oral evidence be lead unless such a state case has
been agreed, and on which they may draw legal conclusions. Although
parties may regard submitting documents and argument is a fast way of
resolving a dispute on the day of arbitration, it in fact
renders the
award is sued susceptible to review. As the result, the principle of
speedy resolution of disputes is ultimately sacrificed.
[5]
I fail to appreciate why the same principle should not apply to a
jurisdictional ruling,
especially where that ruling is necessarily
dependent on the factual matrix. It does not appear in the present
instance that there
was an agreed stated case, nor does it appear
that evidence was led on what appear to be clear and material
disputes of fact, particularly
those regarding the status and effect
of the applicant’s transfer. On the face of it, the letter
appears to give effect to
a geographical transfer or perhaps a
secondment, not any transfer from one corporate entity to another. As
I have indicated, there
is no record of any evidence before me,
certainly none that would serve to clarify these issues. In the
result, that award stands
to be reviewed and set aside, and the
matter remitted to the CCMA for rehearing before a different
commissioner.
[6]
In coming to this conclusion, I pass no judgment on the merits of the
jurisdictional
point raised by the first respondent. I also make no
decision on the basis on which the review has been brought and in
particular,
whether it is open to the applicant to rely on a
‘reasonableness review’ in the present circumstances. My
decision
is predicated only on the procedure adopted by the
commissioner in making the ruling under review.
[7]
Finally, in terms of s 162 of the LRA, the interests of the law and
fairness are best
satisfied by there being no order as to costs.
I
make the following order:
1. The
jurisdictional ruling issued by the second respondent on 5 March 2018
under case number FSBF 3778-17 is
reviewed and set aside.
2. The
matter is remitted to the third respondent for rehearing before a
different commissioner.
André
van Niekerk
Judge
APPEARANCES
For
the applicant: Adv. Sander, instructed by JG Keyl Attorney
For
the respondent: Ms V Reddy, Norton Rose Inc