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[2020] ZALCJHB 81
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Lekgau v Commission for Conciliation, Mediation and Arbitration and Others (JR1260/19) [2020] ZALCJHB 81 (20 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, johannesburg
Not reportable
case
No: JR 1260/19
In
the matter between:
SELEPE
BENSON
LEKGAU Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
NAMISILE
KHESWA
N.O
Second
Respondent
QUATRO SECURITY
SERVICES
Third Respondent
ENROLLED: 20 May 2020,
in view of the measures implemented as a result of the Covit-19
outbreak this matter was decided on papers.
DELIVERED:
This judgment was handed down electronically by circulation to the
parties representatives by email and release to SAFLII.
The date and
time for hand-down is deemed to be 14h00 on 25 May 2020.
JUDGMENT
MABASO,
AJ
[1]
The Applicant seeks this court to review
and set aside an arbitration award under case number GAJB 27035/18
and condone the late
delivery of this application. The review
application was delivered six weeks out of time, which is not an
inordinate period. Further
taking into account the explanation
thereof and prospects of success as set out below, the condonation
application is granted.
Grounds
of review
[2]
One of the grounds of review herein is that
the arbitrator failed to reasonably determine and assess the material
properly placed
before her. Considering this ground, this Court has
to take into account the totality of the material that was before the
arbitrator.
[3]
The
role of an Arbitrator, in resolving a dispute before them, as put by
the Constitutional Court in
CUSA
v Tao Ying Metal Industries and others
[1]
is
this:
“
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.” This requires commissioners to deal with the
substance of a dispute between the parties”
[4]
At the commencement of the
arbitration, it was in dispute that the Applicant was dismissed.
Therefore, the Applicant had to present evidence to show a dismissal
in order for the Commission for Conciliation, Mediation and
Arbitration (CCMA) to have jurisdiction to hear the matter.
[5]
It was common cause that the Applicant joined the employer in August
2018. Parties entered
into a written employment contract which among
other things refers to commencement date being "
31-08-18
-31-09-18
".
Paragraph 7.2 of the contract provides that “
the
duration of this agreement is, subject to the provisions of clause 8
and 14 for an indefinite period.”
[2]
.
Sub-clause 8.1 provides that “
the
first six months of the employee’s employment with the employer
shall be a probation period”.
[6]
During the opening statements, the Applicant stated that the employer
permanently
employed him.
[3]
In
the examination in chief, he referred to a letter issued by the
employer advising him that the contract of employment was
“
automatically
”
ending on 31 October 2018.I must indicate that the contract of
employment does not state this date as the termination date.
He
averred that he had not committed misconduct at work.
[4]
He further referred to sub-clause 7.2 of the contract of employment.
[7]
The arbitrator concluded that the employment contract was for a fixed
term, from 31
August to 30 September 2018, and that the Applicant
worked beyond the latter date. The arbitrator says the issue before
her was
that of reasonable expectation, and she states that despite
the clauses mentioned in paragraph 6 above indicating otherwise. The
arbitrator held that sub-clause 7.2 refers to a probation period and
according to her the probation did not apply to the Applicant.
I
conclude that the arbitrator was wrong in her conclusion therefore
failed to apply her mind to the facts before her, taking into
account
that the contract of employment which was entered into by the parties
contained the clauses and at no stage during the
arbitration that
parties disown these clauses. Further, during the arbitration the
employer presented no evidence which supports
the arbitrator’s
conclusion on this point.
[8]
Furthermore, the arbitrator failed to take into account that after
concluding the
‘fixed term’ which ended in September the
Applicant continued working beyond this period. Moreover, this was in
terms
of the same contract of employment. On a reading of the
contract, nowhere it says is fixed for one month as I have indicated
that
the commencement date is "
31-08-18
-31-09-18
”. The arbitrator in
concluding that there was a “
mix
up with ending dates is not a good reason for any reasonable
expectation whatsoever”
is not
supported by the evidence presented before her. The arbitrator also
failed to take into account that in the 7.11 form the
Applicant
indicated that the date of dismissal is 31 October 2018, which is a
date after commencement date(s) as stated in the
contract of
employment.
[9]
I, therefore, conclude that the
arbitrator was wrong in concluding that the Applicant did
not prove
that he was dismissed.
[10]
I find that the Applicant was dismissed, and
the dismissal was both procedurally and substantively
unfair. The
Applicant, before the arbitrator, asked for compensation. I see no
reason why he should not get compensation. Considering
that he worked
for two months and the dismissal was both procedurally and
substantively unfair a compensation equivalent to six
months will be
appropriate.
[11]
In the premises the following order is made:
Order:
1.
The late delivery of the review application
is condoned.
2.
The arbitration award issued by the first
Respondent under case number GAJB 27035-18 is reviewed and set aside
and replaced with
an order that,
"1.
The CCMA has jurisdiction to hear the dispute as the Respondent
dismissed the employee,
2.
The dismissal was both procedurally and substantively unfair.
3.
The Respondent must pay
the employee compensation equivalent to 6 months of his salary
calculated at the date of the dismissal.”
3.
There is no order as to costs.
—————————————
S. Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances:
For the Applicants:
In chambers
Instructed
by:
MM Mitti inc Attorneys
For the Respondent: In
person
Instructed
by:
[1]
(2008)
29 ILJ 2461 (CC) at para 64. A commissioner must, as the LRA
requires, "
deal
with the substantial merits of the dispute
".
This can only be done by ascertaining the real dispute between the
parties.39 In deciding what the real dispute between
the parties is,
a commissioner is not necessarily bound by what the legal
representatives say the dispute is. The labels that
parties attach
to a dispute cannot change its underlying nature. A commissioner is
required to take all the facts into consideration,
including the
description of the nature of the dispute, the outcome requested by
the union and the evidence presented during
the arbitration. What
must be borne in mind is that there is no provision for pleadings in
the arbitration process which helps
to define disputes in civil
litigation. Indeed, the material that a commissioner will have prior
to a hearing will consist of
standard forms which record the nature
of the dispute and the desired outcome. The informal nature of the
arbitration process
permits a commissioner to determine what the
real dispute between the parties is on a consideration of all the
facts. The dispute
between the parties may only emerge once all the
evidence is in.
[2]
Even
the 7.13 form, the Applicant under issues in dispute wrote that:
employment was terminated without a reason, neither was
a hearing
held. Furthermore, the employer fails to comply with the contract,
which states that it is for an indefinite period.
[3]
Page
4
[4]
Page
7