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[2020] ZALCJHB 51
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Mwepu v Commission for Conciliation, Mediation and Arbitration and Others (JR924/18) [2020] ZALCJHB 51 (26 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR 924/18
In the matter between:
BAMBABU
OSCAR MWEPU
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER ALLAN
KAYNE
Second
Respondent
EVANS
KGB PROPERTY MANAGEMENT
Third Respondent
Heard:
25 February 2020
Delivered:
26 February 2020
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MAHOSI.
J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review and set aside the arbitration award issued by the
second respondent (arbitrator) under the auspices of the first
respondent, the Commission for Conciliation, Mediation and
Arbitration (CCMA), under case number GAJB7913/18, dated 08 May 2018
in terms of which the arbitrator found that the applicant was not
dismissed by the respondent and dismissed his matter.
Background
[2]
The applicant was employed by the third respondent as a house-sitter
on a fixed term
contract from 28 September 2015. His duty was to
reside in one of the third respondent’s repossessed properties
until the
property is transferred to a new owner at which point the
fixed term contract would automatically come to an end.
[3]
On the 5 April 2018, the applicant referred a dismissal dispute to
the CCMA for conciliation.
The dispute was unsuccessfully conciliated
on 26 April 2018 and it proceeded to arbitration on the same date.
The arbitrator then
issued an arbitration award on 8 May 2018. In his
award, the arbitrator found that the applicant failed to discharge
the onus to
prove that he was dismissed. Resultantly, the arbitrator
dismissed the applicant’s claim. It is this award that is the
subject
matter of this application.
Arbitration
award
[4]
In his analysis of the evidence and argument, the arbitrator recorded
that the applicant
repeatedly testified that his dismissal related to
his tablets
(wireless
touch screen personal computer) being stolen by thieves employed by
the respondent and that he had instituted proceedings
in the Small
Claims Court. Whilst the arbitrator accepted the applicants evidence
that his tablets may have been stolen, he found
that there was no
link between the said theft and his dismissal claim for dismissal.
[5]
The arbitrator referred to section 192(1) of the LRA which requires
an employee in
any dismissal proceedings to establish the existence
of dismissal. With reference to section 186(1) of the LRA which
defines the
meaning of dismissal, the arbitrator found that the
expiry of the fixed term contract does not constitute dismissal
unless there
was a reasonable expectation of renewal of the fixed
term contract or of infinite employment. The commissioner found that
it was
not the case in this matter and concluded that the applicant
failed to discharge the onus of proving that he was dismissed. For
that reason he dismissed the applicants claim.
Applicant’s
grounds of review
[6]
The applicant’s contention is that he was unfairly dismissed
because the date
on which he was dismissed was not the date on which
the registration of the transfer of the property he was employed at
was effected.
According to the applicant, he was dismissed for
complaining about his stolen tablets and salary increment.
[7]
It is the applicant’s further contention that he was not able
to prove before
the arbitrator the existence of dismissal in terms of
section 192(1) of the LRA because the employer did not provide him
with the
copy of his employment contract nor was he provided with any
dismissal letter.
The third respondent’s
submissions
[8]
The third respondent contends that the applicant’s fixed term
contract as a
house- sitter that was entered into on 28 September
2015, came to an end on 21 June 2017 when the registration of the
transfer
took place. The applicant was allegedly then allowed
to stay in a room at the third respondent’s head premises at no
cost pending the opening of another house-sitter position. At the
beginning of December 2017, the third respondent had
its head
premises painted and offered the applicant another fixed term
contract of painting which has since been concluded.
Test for review
[9]
The test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
is
a test for the substantive reasonableness of the outcome or result of
an arbitration award, which is an outcome based enquiry,
[3]
entailing
a stringent test aimed at ensuring that arbitration awards are not
lightly interfered with.
[4]
[10] In
Bestel
v Astral Operations Ltd and Others,
[5]
the
Court stated as follows:
‘
It
is important to emphasise,
as
is exemplified
from
Carephone
,
and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[6]
[11]
For the applicant to succeed with the review application, he must
have established that the arbitrator’s
decision fell outside
the bounds of reasonableness on all the material that was before him,
including for the reasons not considered
by the arbitrator.
[7]
[12]
The onus to establish that the award is reviewable rests on the
shoulders of the applicant to the review
application. Rule 7A of the
Labour Court Rules provides that:
‘
(1)
A party desiring to review a decision or proceedings of a body or
person performing a reviewable
function justiciable by
the court must deliver a notice of motion to the person or body and
to all other affected parties.
(2)
The notice must-
…
(c)
be supported by an affidavit setting out the factual and legal
grounds upon which the applicant
relies to have the decision
or proceedings corrected or set aside.’
[13]
To achieve this, the applicant must place such factual and legal
grounds that will enable the Court
to determine the matter. In this
matter, the applicant has failed to do so. Instead, he argues that he
could not have been able
to established that he was dismissed because
the third respondent did not provide him with a dismissal letter. As
aforementioned,
the basis on which the applicant contends that he was
dismissed is that 5 April 2018 was not the expiry date of the fixed
term
contract.
[14]
The evidence before the arbitrator was that the applicant’s
fixed term contract as a house-sitter
that was entered into on 28
September 2015 came to an end on 21 June 2017 when the
registration of the transfer took place.
This was not in dispute. In
addition, the reading of the award and the record does not show that
the fixed term contract
to paint the third respondent’s
head premises did not come to an end. On the evidence before
the arbitrator, it cannot
be said that the arbitrator’s
conclusion that the applicant failed to discharge the onus to prove
that
he was dismissed was unreasonable.
[15]
The applicant has not established any basis upon which the Court
could find that the award is reviewable.
As such, he failed to
discharge the
onus
of establishing that the arbitrator either
committed misconduct in relation to his duties as an arbitrator, a
gross irregularity
in the conduct of the arbitration proceedings, or
that he exceeded his powers. It is the Court’s view that the
arbitrator’s
award is not only coherent, but it contains a
detailed exposition of the evidence presented to him during the
arbitration followed
by fair analysis of the evidence and argument
and a reasonable conclusion. There is, therefore, no reason for this
Court to interfere
with his award.
Costs
[16]
In terms of section 162 of the LRA, this Court has wide discretion in
awarding costs. The Constitutional
Court has recently reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others,
[8]
that costs orders should be made in accordance with the requirements
of law and fairness. In this matter, the requirements of law
and
fairness dictate that there should be no order as to costs.
[17] In
the circumstances, I make the following order.
Order
1. The
application to review and set aside the arbitration award
issued by the second respondent under the auspices
of the first respondent under case number GAJB7913/18, dated 08 May
2018
is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant: Personal
representation
For
the third Respondent: No appearance
[1]
Act
66 of 1995 as amended.
[2]
[2007]
12 BLLR 1097 (CC).
[3]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others
(2008)
29
ILJ
2899
(LAC) at 2906H-I.
[4]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[5]
[2011]
2 BLLR 129
(LAC)
at
para 18.
[6]
Id
fn 5 at para 18.
[7]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.
[8]
(2018)
39 ILJ 523 (CC);
[2018] 4 BLLR 323
(CC) at para 24.