About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 85
|
|
Masito v Commission for Conciliation, Mediation and Arbitration and Others (JR 903/17) [2020] ZALCJHB 85 (22 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 903/17
In the matter between:
DORCUS
L
MASITO First
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION First
Respondent
FAIZEL
MOOI
N.O
.
Second
Respondent
NETCARE
KRUGERSDORP HOSPITAL
Third
Respondent
Enrolled: 07 May 2020,
in view of the measures implemented as a result of the Covid-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 22 May 2020.
JUDGMENT
MABASO,
AJ
Introduction
[1]
The question to be answered in this judgment is: Do the facts before
the Second Respondent
justify his outcome? The guiding principle is
the six pillar requirements as set out by the Labour Appeal Court
(LAC) in
Goldfields
Mining South Africa (Kloof Gold Mine) (Pty) Ltd v CCMA and Others
thus:
[1]
“
(i)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities,
did the process
that the Arbitrator employed give the parties a full opportunity to
have their say in respect of the dispute
?
(ii)
Did the Arbitrator
identify
the dispute he was required to
arbitrate (this may in certain cases only become clear after both
parties have led their evidence)?
(iii)
Did the Arbitrator
understand
the nature of the dispute he or
she was required to arbitrate?
(iv)
Did he or she deal with
the substantial merits
of the dispute?
and
(v)
Is the Arbitrator's decision one that
another
decision-maker reasonably have arrived
at
based on
the evidence.
”
[2]
[2]
The Applicant is challenging the arbitration award that was issued by
the second respondent
under the auspices of the first respondent
under case number GAJB 24537-16, wherein the latter concluded that
the dismissal of
the applicant by the third respondent was
substantively fair but procedurally unfair.
[3]
The applicant is Dorcus L Masito (the employee). The first respondent
is the Commission
for Conciliation, Mediation and Arbitration (the
CCMA), the second respondent is the Commissioner of the CCMA, Faizel
Mooi, (the
Arbitrator), and the third respondent is Netcare
Krugersdorp Hospital (the employer). Only the employer is opposing
this application.
Preliminary
Points
[4]
The employer argues that the application is deemed to have been
withdrawn therefore,
should be struck from the roll. In support of
its point, it argued that according to the CCMA notice
[3]
the records were dispatched on 23 May 2017, therefore, the employee
should have delivered the records on or before 17 August 2017
but
were delivered on 03 November 2017. The employer stated that it has
no knowledge as to when did the Registrar notify the applicant
that
the records were ready for collection.
[5]
The employer relies on the provisions of the Practice Manual which
provides that
“
11.2
Applications to review and to set aside arbitration
awards and rulings
11.2.1
Once the
Registrar has notified an applicant
in terms of Rule 7A (5) that
a record has been received and may be uplifted, the applicant must
collect the record within seven
days.
11.2.2 For the purposes
of Rule 7A (6), records must be filed within 60 days of the date on
which the applicant is advised by the
Registrar that the record has
been received.
11.2.3
If
the applicant fails to file a record within the prescribed period,
the applicant will be deemed to have withdrawn the application
,
unless the applicant has during that period requested the
respondent‟s consent for an extension of time and consent has
been given
[4]
…”
[6]
Rule 7A (2)(b) requires that the CCMA must notify an applicant once
it has delivered
the records to the Registrar, and rule 7A(5)
requires the Registrar to make available to the applicant the records
received from
the CCMA. The introduction of paragraph 11 of the
Practice Manual is that once the Registrar has received the records
and sorts
them accordingly. Then it will notify the applicant that it
is now ready for collection. Therefore, a party cannot rely on the
notice in terms of Rule 7A(3) that the other party is aware of the
records, I say this because the practice manual was introduced
with
the aim of
inter alia
facilitating the administration of this Court. Therefore, a
respondent who claims a deemed withdrawal must confirm that the
Registrar
did notify the other party. In this matter, the applicant
states as to when they received the records, and there is no
indication
that the Registrar notified her to collect the records,
therefore, conclude that it will be regular for this Court to make a
ruling
that the review is deemed withdrawn.
[7]
The employer, in its answering affidavit, incorporated what is termed
condonation
for the late filing of opposing papers. They were
delivered on 27 November. 2017, the replying affidavit
challenging the
late delivery of the answering affidavit was
delivered on or about 22 January 2018. This is beyond the stipulated
period stated
by clause 11.4.2 of Practice manual.
[5]
Therefore, as the objection was out of time, the answering affidavit
is properly before this Court.
The
arbitration
[8]
The employee was dismissed by the employer following an internal
disciplinary hearing
that found her guilty. Reading the charge sheet
and the award she was found guilty of theft. Before the Arbitrator,
the employee
was challenging both procedural and substantive fairness
of the dismissal.
[9]
The dismissal of the employee emanated from a damnedest event, that
in August 2016
an abusive ex-boyfriend (the boyfriend) of the
employee visited the latter’s workplace, the employer, and
delivered to the
management certain items including the employer’s
personalised teaspoons,
[6]
then
left the premises. The Human Resource Manager then invited the
employee to the boardroom and apprised her of the incident.
[7]
[10]
When the employee was asked to identify the items, she immediately
set down and put her hands
on the side of her head and looked down.
Furthermore, she avowed of removing the items from the employer, but
she said she never
thought that the boyfriend wants to get to her in
this way.
[8]
Consequently, she
was asked to put her admissions in writing, which she did. The
excerpt thereof read thus.
“ …
I
am telling the truth that I took the Theatre and the Response of
Netcare I did a stupid mistake after so long and I am apologising
for
that if you can give me a second chance to prove my honesty to you...
is a long time 2010 when I was at the theatre taking
caps and spoon.
I wish you can I hope you forgive me because the person who brought
this is my x-fiance he verbalised that he wanted
to destroy me and he
did it. And if you are unable to forgive me I am asking again to pls
not make him happy for what he did to
me"
[9]
[11]
Because of the admissions, the employee was charged with misconduct
in that she took the property
of the employer without authorisation,
to deprive it with no intention to return it.
[10]
During the hearing, she pleaded, not guilty. However, she was found
guilty and dismissed from work.
[12]
In her testimony, the employee admitted that the personalised items
were presented and that she
made the written statement above.
However, she denied committing the offence. Her four fold defence are
condensed, as put during
cross-examination of the employer’s
witnesses, thus:
12.1
When she was invited to the boardroom was told that she stole the
items and police had already been contacted
and that she was to be
arrested therefore she wrote it “
under duress”
as
she was “
going to be arrested and immediately she was
traumatised”
.
12.2
She claimed fabrication as she alleged that the employer was getting
to her as she had been dismissed previously
and then reinstated in
2005;
12.3
she was being victimised because of her involvement within her
trade union;
12.4 At
the time of writing the statement, she had a mental condition and was
suffering from depression, and
12.5
Denies ever agreeing that she removed the items from the employer.
[13]
The employee’s testimony was as follows. She confirmed making
the statement and days later,
she submitted the second statement,
wherein it is stated that when she wrote the first statement, she was
in the state of trauma.
It is not the correct statement, and the
reason for her to make the statement was “
because
I have received threats from my boyfriend that is going to destroy me
and kill me, I was under trauma because of the abuse
from him”.
[11]
At the time of writing the first statement, she was not even sure
what she was writing.
[14]
The Arbitrator identifies the dispute between the parties and the
issues that she had to decide
with the defences that were raised by
the employee.
[12]
The
Arbitrator after analysing the substance of the dispute concluded
that the version of the employer could not stand and indicated
the
reasons thereof, that the applicant did commit the offence of
dishonesty as charged.
[13]
Consequently, what needs to be investigated is whether the grounds of
review suggest that the Arbitrator, based on the totality
of the
evidence presented before him, failed to deal with the substantial
merits of the dispute, which this may include a reviewable
irregularity, which resulted in his decision being one that a
reasonable decision-maker could not have made.
Grounds
of review and the law
[15]
A Commissioner ceased with the determination of the fairness of a
dismissal is not limited to
what transpired at the internal dismissal
hearing as arbitration is a hearing
de
novo
.
[14]
It is also trite law that irregularity alone is not a ground for
review, as more is required. It must be shown that the irregularity
prevented the other party from having a fair trial of issues which
resulted in an unreasonable outcome.
[16]
The applicant contends that the entire award is flawed as it does not
represent the evidence
that was presented before the Arbitrator.
Specifically relating to how the Arbitrator dealt with the evidence
of the chairperson
of the hearing or lack thereof.
[15]
As indicated in the preceding paragraph, an arbitration is a hearing
de
novo
.
Looking at the arbitration award, the Arbitrator concluded that the
dismissal was procedurally unfair. The The Arbitrator supports
his
conclusion in paragraph 50 and 51. The Arbitrator did not need to
deal with each and every testimony in the award. On perusal
of the
documents, this Court concludes that no irregularity was committed.
[17]
The Arbitrator is being challenged for the manner in which he dealt
with the evidence relating
to the relationship between the employee
and her boyfriend
[16]
. He is
accused of taking into account irrelevant evidence. Further, as to
whether the person who is alleged to have brought the
items was the
former employee’s boyfriend or not.
[17]
My conclusion is that this is not relevant considering that the
employee already told the Arbitrator that the boyfriend told her
of
his intention.
[18]
He is accused of not accepting that the first statement was made
under duress. This court has
considered this ground keeping in mind
the Arbitrator’s finding in respect of this alleged duress and
concludes that the
statement was not made under duress. As this Court
entirely agrees with him, taking into account the evidence that was
presented
during the arbitration hearing. The applicant wants the
Court to apply the test that is applicable in an appeal, whereas this
is
a review application.
[19]
The Arbitrator is accused of considering hearsay evidence regarding
the identity of the employee's
boyfriend. Looking at the records, it
transpired that the employee accepted the identity of the boyfriend.
It is essential to state
that, most importantly is whether the
personalised items were removed by the employee or not. According to
the letter mentioned
above, she accepted. As to whether it was duress
or not, it is dealt with below.
[20]
The Arbitrator is further accused of leading the employer's
representative as a witness, during
the arbitration and further, it
is contended that there was no objection which the Commissioner did
not make a ruling on. This
point is not persuaded further by the
employee, taking into account that in the answering affidavit, the
employer details what
happened in the arbitration hearing, and in
reply, the employee accepted such an explanation. On perusal of the
records I could
not find where such an irregularity was made and the
objection. The explanation provided in the answering affidavit,
specifically
paragraph 48 to 48.3 is accepted. It is concluded that
there is no irregularity.
[21]
I agree with the employee that the Arbitrator in concluding that the
evidence in respect of theft
is irrelevant and then later concluding
that the employee committed theft amounts to confusion which resulted
in an irregularity
on the part of the Arbitrator. However the
question is: does the irregularity result in a gross
irregularity which renders
the arbitration award reviewable? The
answer is no. The reasons are thus.
[22]
The Arbitrator rejected the evidence of the employee that she made
the statement under duress.
The employee's evidence was full of
contradictions, taking into account that the versions which were put
to the witnesses of the
employer, when she tried to justify as to why
she made the first statement, confirmed that she knew about the items
that were brought
by her boyfriend. The arbitrator rejected the
version of the employee. Moreover, it must indicate that the employee
decided to
put forward versions which are different, as stated above.
Therefore, it was reasonable for the Arbitrator to conclude that the
employee’s action when making the first statement was done
freely and voluntarily.
[23]
The only reasonable inference that can be drawn is that the second
statement was made as an afterthought.
This is so because, during the
arbitration, the applicant put five versions to the witnesses of the
employer. Therefore, the Arbitrator's
conclusion in respect of the
offence for which the employee was dismissed for, ticks all the boxes
of the six pillar requirements.
[24]
I agree with the employee that the Arbitrator committed irregularity,
an error of fact when he
concluded that the employee had asked for
compensation. However, such an irregularity does not amount to a
reviewable irregularity
because once the Arbitrator, in terms of
section 191 of the LRA finds a dismissal to be procedurally unfair,
he has the discretion
to order compensation and nowhere in that
section is it stated, that reinstatement has to be issued. The
Arbitrator used his discretion
in awarding relief, and this Court
cannot easily interfere with such unless proper grounds are set out.
[25]
I have perused the arbitration award, together with the supporting
documents which include the
arbitration records and conclude that the
aforementioned grounds of review have no relevance to the substantial
merits of the dispute.
[26]
In the premises the following order is made:
Order
1.
The review application is dismissed.
2.
There is no order as to costs.
_____________________
S Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances
For the Applicant:
Mphakathi (Sipho) Attorneys
For
the Respondent: Bowman Gilfillan Inc.
[1]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at para 20. (
Goldfields
)
[2]
.Court
Emphasis.
[3]
Rule
7A(3) Notice
[4]
Court
Emphasis
[5]
Where
the respondent or the applicant has filed its opposing or replying
affidavits outside the time period set out in the rules,
there is no
need to apply for condonation for the late filing of such affidavits
unless the party upon whom the affidavits are
served files and serve
a Notice of Objection to the late filing of the affidavits. The
Notice of Objection must be served and
filed within 10 days of the
receipt of the affidavits after which time the right to object shall
lapse
[6]
P
79
[7]
ibid
[8]
Ibid
42 and 121
[9]
P
29 and 30, 58 and 124
[10]
In
criminal law parlance, this is theft.
[11]
See
also p 108.
[12]
Para
53.
[13]
The
award at para 66.
[14]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC).
[15]
Para
15.1.1 of the founding affidavit.
[16]
Para
15.2.2 of the founding affidavit.
[17]
15.2.4
of the founding affidavit.