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 82
|
|
Ansies Enterprises CC t/a Boss Alu and Steel v Commission for Conciliation, Mediation and Arbitration and Others (JR 2126/19) [2020] ZALCJHB 82 (25 May 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, johannesburg
Not reportable
case
No: JR 2126/19
In
the matter between:
ANSIES
ENTERPRISES CC t/a BOSS ALU & STEEL
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION First
Respondent
COMMISSIONER
J.
NKUNA Second
Respondent
G. N
CHAUKE Third
Respondent
ENROLLED:19 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 12h00 on 25 May 2020.
JUDGMENT
MABASO,
AJ
Introduction
[1]
The Applicant brought an application to
review and set aside the arbitration award issued in favour of the
third Respondent, dated
21 August 2019, and replace it with an
appropriate order which is either concluding that the termination of
the employment was
fair or remit the dispute to the Commission for
Conciliation, Mediation and Arbitration (CCMA) for a hearing
de
novo
.
[2]
In trawling the supporting affidavits herein, the only determinative
grounds of review
found is a contention that the arbitrator, in
deciding the issue of reasonable expectation, committed a reviewable
irregularity
as he had been called to decide whether the employee was
dismissed on 14 February 2019 following his alleged non-compliance
with
the instruction given to him by Mr Van Heerden.
[3]
On or about 7 September 2018, both parties entered into a written
employment contract
which provided that “
the
employee shall commence his employment for an indefinite period…
”
[1]
It
was common cause that when it expired, it was then renewed on a
month-to-month basis. It was presented during the arbitration
that
this contract was to expire on 28 February 2019. On 14 February 2019,
the employee and Mr Garth Van Heerden, co-owner of the
Applicant had
an altercation, the latter allegedly refused to comply with a lawful
instruction.
[4]
It was common cause that following this deathly incident the employee
left the Applicant’s
premises. The latter then approached the
CCMA claiming unfair dismissal. Conciliation was unsuccessful. The
CCMA appointed the
arbitrator to arbitrate the dispute. At the
commencement of arbitration, the arbitrator proceeded to narrow down
the issues. It
transpired that it was not clear whether the employee
was employed permanently or on fixed-term contract. As a result, the
greater
part of their respective testimonies dealt with this
inconsequential aspect.
[5]
The Applicant disputed that the
employee was dismissed and contended that the employee
left the
employment on his own accord. In contrast, the employee insisted that
he was dismissed. The altercation happened on 14
February 2019 before
28 February 2019, the latter being the date the Applicant stated that
the contract of employment was to end.
The Applicant through the
testimony of Mr Van Heerden stated that the contract of the employee
was extended to 28 February 2019.
During the altercation, he advised
the Applicant that how could he expect his contract to be extended
"
at the end of the month
"
in light of his conduct. The employee then became angry, took his
staff, and left.
[6]
As a result, the onus was on the employee to establish the existence
of the dismissal.
Since it was stated even
during the opening statements that dismissal was in dispute as the
Applicant indicated that the employee
"just
got angry and left the job".
Once
this was established, then the onus would have shifted to the
Applicant to prove that the dismissal was both procedurally
and
substantively fair.
[7]
The arbitrator in his arbitration award concluded thus:
"The
contract which ended on the 28 September 2018 comprised of 18 pages
and had the signature which the employer testified
that it was that
of the employee. The second document which purports to be renewed was
a 1 page which was not signed but as the
name of the employer and the
employee and the starting and the ending period of the contract. My
analysis based on the evidence
before me was that there was a meeting
of minds between the parties and that there was a contract of
employment. My finding is
that the employee established the
dismissal."
[8]
A Commissioner called upon to decide a dismissal dispute. He is
required to identify
the issue before him and has to guide the
parties relating to the issue before him. In preparing an arbitration
award, such Commissioner
has to prepare it by concentrating on the
facts concerning the referral of the dispute and has to determine
such issue. The award
has to show this. I have considered the
arbitration records. In
casu
the arbitrator was called upon to decide, firstly, whether or not the
employee was dismissed on 14 February 2019. The dispute had
nothing
do with whether the contract was terminated at the end of February
2019, taking into account the alleged termination of
14 February
2019.
[9]
Considering the facts and circumstances of this case, I conclude that
the arbitrator
failed to identify the issue that was before him. As a
result, he misunderstood the dispute, therefore, he committed a
reviewable
irregularity.
[10]
Since the dispute between the parties before the arbitrator was
misdiagnosed, the arbitrator
had taken an incorrect approach in his
questioning of the parties, as it concentrated mostly on the
reasonable expectation aspect
instead of the alleged misconduct and
whether or not the employee was dismissed on 14 February 2019. The
employee was either dismissed
or not, and therefore the Court is not
in the position to substitute the award. Therefore, I conclude that
the best course of action
is to remit the matter to the CCMA.
[11]
In the premises the following order is made:
Order:
1.
The arbitration award issued by the first
Respondent dated 21 August 2019 under case number LP 1883-19 is
reviewed and set aside.
2.
The unfair dismissal dispute between the
Applicant and the third Respondent is referred back to the first
Respondent for a hearing
de novo
before any commissioner other than the second Respondent.
3.
There is no order as to costs.
—————————————
S. Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant: Cranko Karp
Attorneys
For
the Third Respondent: In person
[1]
Page
8 of the employment contract