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[2020] ZALCJHB 220
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Zistics Transport CC v DUSWO and Others (JR 78/18) [2020] ZALCJHB 220 (7 May 2020)
The
Labour Court of South Africa, JOHANNESBURG
Not Reportable
case
no:
JR
78/18
In
the matter between:
ZISTICS
TRANSPORT CC
Applicant
and
DUSWO
First
Respondent
SIMELANE
SICELO & 10 OTHERS
Second Respondent
COMMISSIONER
M P MNGOMEZULU
Third Respondent
NBCRFLI
Fourth Respondent
Heard
:
5 May 2020
Delivered
:
07 May 2020 (This judgment was handed down electronically by
emailing a copy to the parties. The 7
th
May
2020 is deemed to be the date of delivery of this judgment).
Summary:
Due to Covid19 lockdown, this application was
decided without oral hearing and the parties agreed to this
arrangement. Jurisdictional
review – the finding that the
Bargaining Council had jurisdiction was correct. The award is one
that falls within the bounds
of reasonableness. Held: (1) The
application for review is dismissed. (2) No order as to costs.
Judgment
MOSHOANA,
J
Introduction
[1]
This is an application seeking to review
and set aside an award issued by the third respondent, in terms of
which the dismissal
of Simelane Sicelo and 10 others was found to be
unfair and ordered their reinstatement with backpay. The applicant is
aggrieved
by the outcome and has launched the present application.
The application is opposed by the trade union on behalf of its
members.
The trade union only filed a notice to oppose and did not
file answering papers. That notwithstanding, this matter was enrolled
on the opposed roll. However due to the lockdown period and the
directive issued by the Judge President, the matter could not be
dealt with in an open court. The applicant agreed that this matter
may be disposed of without a hearing of oral submissions in
an open
court.
Background
facts
[2]
Mr Simelane Sicelo and 10 others (dismissed
employees) were employed by the applicant as truck drivers. The
dismissed employees
alleged that they were dismissed on or about 12
March 2017 for reasons unknown to them. Allegedly on the day in
question the business
owner demanded that they sign certain documents
and upon refusal they were told to pack their stuff and leave. They
were locked
out of the premises and not paid any wages. Aggrieved by
their alleged dismissals, their trade union referred a dispute
alleging
unfair dismissal. An attempt was made to resolve the dispute
through conciliation, which attempt drew blank.
[3]
Ultimately, the dispute was transferred
from the Commission for Conciliation, Mediation and Arbitration
(CCMA) to the fourth respondent,
the National Bargaining Council for
the Road, Freight and Logistics Industry (the Bargaining Council) for
resolution through arbitration
for which the third respondent
was appointed. At arbitration, the applicant challenged the
jurisdiction of the fourth respondent
on the basis that the reason
for dismissal was alleged by the trade union to be one that required
the attention of this Court and
the conciliator has certified that
the dispute ought to be referred to this Court for resolution.
[4]
Further, the applicant alleged that the
dismissed employees were not dismissed. The third respondent after
hearing submission ruled
that the bargaining council had the
necessary jurisdiction notwithstanding a certificate by a conciliator
that the dispute is justiciable
in this Court. After the ruling, the
applicant attempted to have the matter postponed. The application for
postponement was refused.
After hearing evidence, the third
respondent concluded that the dismissed employees were indeed
dismissed and since there was no
evidence from the applicant to
justify the dismissal, he found that the dismissal was both
procedurally and substantively unfair.
As pointed out above, the
third respondent ordered reinstatement with payment of backpay.
Aggrieved by the award, the present application
was launched.
Grounds
of review
[5]
The applicant contends that the award is a
nullity since it was issued without the necessary jurisdiction.
Further, it is contended
that the dismissed employees were not
dismissed and a finding that they were was wrong. Above all, it is
contended that the award
is not one that a reasonable arbitrator
would arrive at.
Evaluation
[6]
At the core of this matter lies the
question whether the award was issued with the necessary
jurisdiction. The jurisdictional challenge
manifests itself in
twofold. Firstly, whether the bargaining council had jurisdiction to
entertain the dispute owing to the allegation
that the reason for
dismissal was on an alleged exercise of constitutional rights.
Secondly, whether factually the dismissed employees
were dismissed.
[7]
Regarding
the first challenge, this Court was not favoured with the referral
forms. However, the transcript reveals that the dismissed
employees
alleged that they were dismissed for unknown reasons
[1]
.
In terms of the Labour Relations Act
[2]
(LRA), where an employee does not know the reason for his or her
dismissal the dispute could be resolved through arbitration. Reliance
on the characterisation of the dispute by the conciliator is of no
assistance to the applicant. It became common cause during the
testimony tendered at arbitration that at some point after 12 March
2017, the dismissed employees were summoned to a disciplinary
hearing. Although the dismissed employees testified that the reason
for their dismissal was unknown, it is clear that the applicant
had
issues with their conduct. In terms of the LRA, where the reason for
dismissal is misconduct, the dispute could be resolved
through
arbitration. I therefore conclude that the third respondent was
correct when he ruled that the bargaining council had the
necessary
jurisdiction to entertain the dispute.
[8]
With regard to the second challenge,
according to section 192 of the LRA, an employee bears the
onus
to establish the existence of a dismissal. Section 186 defines what a
dismissal is. It states that a dismissal does occur when
an employer
terminates a contract of employment with or without notice. The
question whether a dismissal has or has not occurred
is a factual
one. The witnesses testified that the dismissed employees were
dismissed. On the one hand the one witness testified
that the owner
told them to pack their stuff and leave the employer’s
premises. On the other hand the other witness testified
that they
were locked out of the premises and were not paid. During cross
examination of these witnesses, technical propositions
were put to
them with no version being put as to what exactly the applicant’s
case was. Nonetheless, other than asserting
that the employees were
not dismissed no evidence was led by the applicant to support the
assertion put to the dismissed employees.
Versions put during
cross-examination of a witness do not constitute evidence.
[9]
Accordingly,
the evidence that the dismissed employees were told to take their
stuff and leave; that they were locked out of the
premises; that they
offered their services by being at the gate until late afternoons and
that they were not paid remained uncontroverted.
In the light of such
objective evidence, a finding that there was a dismissal is correct.
There is no merit in an argument that
the third respondent ought to
have first dealt with the issue whether there was a dismissal or not.
Section 138 of the LRA allows
the arbitrator to take any approach in
resolving a dispute. The transcript reveals that he called upon the
dismissed employees
to prove that they were dismissed
[3]
.
Indeed the dismissed employees tendered evidence to prove that they
were dismissed. There was no countervailing evidence against
such
evidence. Accordingly, the finding that the dismissed employees were
dismissed factually is correct. Thus the challenge of
lack of
jurisdiction must fail. The technical defence that since the
disciplinary enquiry was scheduled for 17 March 2017 is not
helpful
to the applicant in light of the uncontested evidence of the
dismissed employees. It is not unusual for an employer
to hold a
disciplinary hearing after a dismissal of an employee
[4]
.
Thus, it is no answer that since a hearing was still to happen then
ex
hypothesi
there was no dismissal factually.
[10]
The refusal of postponement was justified.
A postponement of an arbitration is not there for the taking. In the
absence of good
grounds, an arbitrator is entitled to exercise his or
her discretion against the granting of a postponement. Unless malice
and
caprice are shown to exist, a Court of review is not entitled to
interfere with an exercise of discretion. Accordingly, a challenge
on
the postponement ruling is misplaced and ought to fail.
[11]
With regard to the finding that the
dismissal is both procedurally and substantively unfair, it cannot be
said that the finding
is not one that a reasonable commissioner may
arrive at. Once dismissal is established, which was the case in this
matter, the
applicant was duty bound to prove the fairness of such an
established dismissal. The short shrift approach taken by the
applicant
in this matter by not leading any evidence is and was
unhelpful to the applicant given its statutory
onus
.
Where dismissal is not proven to be fair through evidence, any
finding that it is unfair is one a reasonable commissioner may
arrive
at. An allegation that the arbitrator committed a gross irregularity
in not allowing oral arguments is rejected. At the
conclusion of
arbitration, parties agreed to deliver written submissions. Those
submissions were taken into account when the award
was issued.
[12]
In light of all the above reasons, the
application is bound to fail. The arbitration award is free of any
defects. All the grounds
punted for are therefore rejected.
[13]
In the result the following order is made:
Order
1.
The applicant for review is dismissed.
2.
There is no order as to costs.
_______________________
G. N. Moshoana
Judge
of the Labour Court of South Africa
.
Appearances:
No
appearances.
[1]
[1]
Page
51-55 of the transcript reveals an objection raised by the dismissed
employees’ representative with reference to the
referral
document which reflected that reason for dismissal was not told to
the dismissed employees.
[2]
No
66 of 1995, as amended.
[3]
Page
33 the commissioner stated that “you have to prove there was
dismissal and all and then we will proceed with the case.”
[4]
Semenya
v CCMA and others
(2006)
27 ILJ 1627 (LAC)