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[2020] ZALCJHB 107
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Campher v Commission for Conciliation Mediation and Arbitration and Others (JR2187/17) [2020] ZALCJHB 107 (25 June 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR2187/17
In the matter
between
:
MARIA CHRISTINA
CAMPHER Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
COMMISSIONER
THEMBEKILE NSIBANYONI Second
Respondent
THE SOUTH AFRICAN
BROADCASTING
CORPORATION SOC
LIMITED Third
Respondent
Heard:
18 May 2020
Delivered:
In view of the measures implemented as a result of the Covid-19
outbreak, this judgment was
handed down electronically by circulation
to the parties' representatives by email. The date for hand-down is
deemed to be 25 June
2020.
Summary:
Review application – once the employee accepts the offer for a
position which is clearly
a fixed term contract there is no turning
back to the erstwhile permanent contract of employment –
reasonable expectation
that a fixed term contract would be renewed
can be supported by practice or assurance by senior managers –
reinstatement
is an adequate remedy.
JUDGMENT
NKUTHA – NKONTWANA,
J
Introduction
[1]
In this application, the applicant, Ms
Maria Christina Campher (Ms Campher), seeks an order reviewing and
setting aside the arbitration
award issued by the second respondent
(Commissioner), under the auspices of the first respondent,
Commission for Conciliation Mediation
and Arbitration (CCMA), dated
12 September 2017 under case number GAJB25668-16.
[2]
This application is opposed only by the
third respondent, the South African Broadcasting Corporation SOC
Limited (SABC).
[3]
Ms Campher’s impugn against the award
is that the Commissioner committed gross misconduct in relation to
her duties as an
arbitrator; and alternatively, that she committed a
gross irregularity in the conduct of the arbitration proceedings
rendering
the award which a reasonable decision-maker could not have
made having regard to the material facts before her.
Pertinent facts
[4]
Ms Campher was employed by the SABC as the
Payroll Manager: Technical and Compliance on permanent basis, a
position she held from
2008 to April 2013. She was then offered a
position of Chief Financial Controller, which was a five-year fixed
term contract, with
effect from 1 May 2013 which was prematurely
terminated on 31 October 2016.
[5]
It is not in dispute that Ms Campher had
meetings with Messrs Kobus Potgieter (Mr Potgieter) and Andre Weber
(Mr Weber) from the
SABC’s Group Employee Relations Department
who advised that the SABC intended to terminate her services because
there was
‘no room’ for her in the structure. She was
subsequently served with a letter dated 25 October 2016 notifying her
that
the SABC had resolved to terminate the employment relationship
and pay her for the balance of her fixed term contract which was
18
months. Subsequent to obtaining a tax directive from South African
Revenue Service (SARS), Ms Campher was paid an amount of
R1,796,952,31.
[6]
On 18 November 2016, Ms Campher referred an
unfair dismissal disputed to the first respondent, Commission for
Conciliation, Mediation
and Arbitration (CCMA), seeking
reinstatement. The conciliation was unsuccessful and the matter was
referred to arbitration.
[7]
The main issues for determination during
arbitration were identified as follows:
7.1.
Whether Ms Campher was employed on
permanent basis? If so, whether her dismissal was procedurally and
substantively unfair justifying
her reinstatement?
7.2.
Alternatively, if it were to be found that
Ms Campher was employed on a fixed term contract, whether she had a
legitimate expectation
that her contract would be renewed for a
further period of five years.
7.3.
Whether the true reason for the applicant
‘s dismissal was because she was viewed by management of the
Third Respondent as
a stumbling block to the approval of certain
bonus payments to the SABC’s erstwhile Acting Operating
Officer, Mr Hlaudi Motsoeneng
(Mr Motsoeneng); the payment of
exorbitant professional fees to contractors of the Third Respondent;
and because she repeatedly
drew the attention of senior management of
the Third Respondent to her concern about the solvency of the Third
Respondent.
7.4.
Whether, if it were found that the
applicant was employed on a fixed term contract, the amount paid to
her by the Third Respondent
at the termination of her services was
correctly calculated?
[8]
Dismissing Ms Campher’s unfair
dismissal case, the Commissioner, found that:
8.1.
Ms Campher was not a permanent employee of
the SABC but was on a five-year fixed term contract which had been
prematurely terminated
by the SABC.
8.2.
Ms Campher failed to prove that she had a
legitimate expectation that her fixed term contract would be renewed
beyond the five-year
period;
8.3.
Ms Campher’s claim that the true
reason for termination of her contract was because she was viewed as
an obstacle to the payment
of certain bonuses to Mr Motsoeneng was
not supported by evidence.
[9]
The Commissioner, deferred the dispute
between the parties pertaining to the calculation of the amount paid
to Ms Campher by the
SABC to a process that had to involve actuaries
agreed to by the parties. It would seem that this issue is still in
dispute, but
the parties accept that it is not the subject matter in
these proceedings.
Review test
[10]
The
review test is trite. The award must be one that a reasonable
decision-maker could have arrived at for it to escape being
assailed.
[1]
However, that is
not the end of the enquiry. In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[2]
LAC stated that:
[15]
…the Labour Court’s approach to the review of the
Commissioner's award transcends
the mere identification of process
related errors to reveal the Commissioner’s basic failure to
apply his mind to considerations
that were material to the outcome of
the dispute, resulting in a misconceived hearing or a decision which
no reasonable decision-maker
could reach on all the evidence that was
before him or her.
[16]
Significantly, as was held by the SCA in
Herholdt
and endorsed
recently by this Court
in Head of the Department of Education v
Jonas Mohale Mofokeng and Others
, ‘for a defect in the
conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii) of
the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable
result’.
Thus, as recognised in Mofokeng, it is not only the
unreasonableness of the outcome of an arbitrator's award which is
subject to
scrutiny, the arbitrator ‘must not misconceive the
inquiry or undertake the inquiry in a misconceived manner’, as
this
would not lead to a fair trial of the issues
. In further
approval of
Herholdt
, this Court in
Mofokeng
stated
that:
‘
Mere
errors of fact or law may not be enough to vitiate the award.
Something more is required. To repeat: flaws in the reasoning
of the
arbitrator, evidence in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material
factors etc.
must be assessed with the purpose of establishing whether the
arbitrator has undertaken the wrong inquiry, undertaken
the inquiry
in the wrong manner or arrived at an unreasonable result.
Lapses
in lawfulness, latent or patent irregularities and instances of
dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her
.’
(Emphasis added)
Was Ms Campher
employed on a permanent contract?
[11]
Ms Campher persists that she was employed
on permanent basis when her contract of employment was terminated.
She asserts that since
the fixed term contract was never signed by
both parties it never came into existence. I deem it unnecessary to
be arrested by
this issue. Ms Campher concedes that she signed the
offer of employment dated 18 April 2013 which clearly states the
commencement
date as 1 May 2013 and fixed end date as 30 April 2018.
[12]
It is evident from the correspondence
between her and Mr Mzu Ndlovu (Mr Ndlovu), the Human Resources
Manager: Group Services, after
she received the fixed term contract
that she took no issue with her appointment on fixed term basis. She
only raised the issue
of continuity as a membership of pension fund
given the change from permanent to fixed term contract.
[13]
Ms Campher continued to accept the benefits
attached to the position of Chief Financial Controller and performed
the responsibility
attached to that position for more than three
years. As correctly submitted by counsel for the SABC, if she did not
want to accept
the promotion and increase in salary, she should have
declined the offer.
[14]
The Commissioner’s finding that Ms
Campher was employed on fixed term contract cannot be faulted.
Did Ms Campher have
reasonable expectation that her fixed term contract would be renewed?
[15]
The SABC takes issue with Ms Campher’s
assertion that she had a reasonable exaptation that her
fixed-contract would be renewed.
Counsel for the SABC submitted that
Ms Campher presented two inconsistent cases; her persistent claim
that she remained a permanent
employee is inconsistent with her case
that she had a fixed term contract which she legitimately expected
that it would be extended.
[16]
Ms Campher deals with the SABC’s
contention in the founding and replying affidavits and asserts that
the fixed term contract
case is pleaded in the alternative. In my
view, it is perfectly sensible that a party would mount two
alternative cases. In fact,
the commissioner entertained and
pronounced on both cases. As such, I do not think that I should say
anything further in this regard.
[17]
Ms Campher gave a detailed explanation as
to why she harboured an expectation that her fixed term contract
would be renewed. She
testified that she was aware that General
Managers who were employed at salary scale code 120 or above were
appointed on five year
fixed term contracts. However, it was the
SABC’s practice to roll over or renew the fixed term contracts.
[18]
She had discussions with other staff
members within the Finance Department, including Mr Christiaan
Olivier (Mr Olivier), who was
an Acting Financial Officer of the SABC
at that time and her supervisor, and they all assured her that it was
practice at the SABC
that fixed term contracts do get renewed. Mr
Olivier, confirmed this practice in his evidence. There was also a
list with names
of the staff members in the Finance and Human
Resources Departments whose fixed term contracts had been rolled
over. This evidence
was not
controverted.
[19]
Ms Campher testified that her position as
Chief Financial Controller was relevant to the SABC. Even though
there were discussions
on the new structure in 2015, she had
discussed her suitability for a position of General Manager: Shared
Services with Mr James
Aguma (Mr Aguma), the then Acting Financial
Officer. Also in September 2016, Ms Campher attended a workshop where
the proposed
new structure for the SABC Finance Department was
presented and discussed. Ms Audrey Raphela, the then acting Chief
Financial Officer,
assured the staff members that there would be a
place for everyone in the new structure and that individual meetings
would be held
with staff members to discuss their positions in the
new structure. This evidence was not controverted.
[20]
The SABC led the evidence of Mr Jaco van
Staden (Mr Van Staden), a Remuneration and Information Specialist in
the SABC’s Human
Resources Department. His testimony was mainly
about the events post the termination of Ms Campher’s contract
of employment.
He testified that the position of the Chief Financial
Controller had been delimited in December 2016. He explained
delimiting as
taking a position off from the structure; which could
be reinstated after following a process.
[21]
Mr Van Staden also presented the organogram
for the SABC’s Finance Department dated 20 June 2017 with no
reference to the
position of Chief Financial Controller. Ms Campher
disputes the contents of the organogram mainly because it is not
consistent
with the discussions she had with Mr Aguma and Raphela on
the proposed new structure immediately before the termination of her
contract of employment.
[22]
In terms of section 186(1)(b)(i) of the
LRA, dismissal means that:
‘
an
employee employed in terms of a fixed term contract of employment
reasonably expected the employer –
(i)
to renew a fixed term contract of
employment on the same or similar terms but the employer offered to
renew it on less favourable
terms, or did not renew it; or
(ii)
to retain the
employee
in
employment on an indefinite basis but otherwise on the same or
similar terms as the fixed term contract, but the employer offered
to
retain the
employee
on
less favourable terms, or did not offer to retain the
employee
…’
[23]
The
Commissioner was required to determine whether on the facts before
her, objectively considered, it had been proven that Ms Campher
held
a reasonable expectation that her contract would be renewed.
[3]
The
Commissioner accepted the organogram for the new structure of the
SABC’s Finance Department that was presented by Mr Van
Staden
as the only cogent evidence. In turn, she rejected Ms Campher’s
evidence that she had reasonable expectation that
her fixed term
contract would be renewed. Conversely, the transcript shows that Van
Staden confirmed that it was practice at the
SABC to renew fixed term
contracts. He also conceded that at least four employees (Mr Lambert,
Mr Shaw, Ms M Dlamini and Mr Modau)
at Finance Department, who were
at the same level as Ms Campher and also reporting to Mr Aguma, had
their fixed term contracts
renewed more than once in some instances.
[24]
Notably, Ms Campher’s evidence about
the discussions with Mr Aguma and Ms Raphela on the proposed new
structure, with her
individually and collectively with her colleagues
at the Finance Department, which assured her that she would be
accommodated in
the new structure went uncontested. Ms Campher’s
interrogation by Counsel for the SABC riveted over whether, given her
assertion
that she was employed on permanent basis, could she have
had a reasonable expectation that her fixed contract would be
renewed.
As stated elsewhere in this judgment, these cases were
pleaded and pursued in the alternative.
[25]
In addition, Ms Campher had no reason to
doubt that her employment with the SABC would have continued beyond
the expiry of her fixed
term contract in any similar position as
assured by her senior managers, Mr Aguma and Ms Raphela. In my view,
the delimiting of
Ms Campher’s position from the structure or
its absence from the new organogram is accordingly not fatal to her
case that
she had a reasonable expectation that her fixed term
contract would be renewed.
[26]
Ms
Campher was suspicious that there was ‘no room’ for her
in the SABC structure hence the premature termination of
her fixed
term contract. She testified that the true reason for the premature
termination of her fixed term contract was because
she was viewed as
an obstacle to the payment of Mr Motsoeneng’s bonuses. She had
raised concerns about the liquidity of the
SABC and the lawfulness of
the verbal instruction she had received to effect the first
instalment of about R11 million for Mr Motsoeneng’s
bonus. In
fact, Mr Motsoeneng’s
modus
operandi
at the SABC during his tenure as the Chief Operating Officer and
controversy around the payment of the R11 million bonus received
reportage in various newspaper articles which were part of the
evidence before the Commissioner. The essence of Ms Campher’s
evidence in this regard is that, but for her questioning of the
payment of Mr Motsoeneng’s R 11 million bonus, her fixed
term
contract would not have been prematurely terminated.
[4]
In the absence of any evidence in rebuttal, the evidence of Ms
Campher must stand.
[27]
Therefore, it was incumbent upon the SABC
to prove that the dismissal of Ms Campher was procedurally and
substantively fair and
it failed dismally.
[28]
The C
ommissioner clearly misconceived the
nature of the enquiry and, consequently, there was no fair trial of
the issues. Put otherwise,
the Commissioner diverted from the correct
path in the conduct of the arbitration and as a result failed to
address the question
raised for determination.
Conclusion
[29]
Given the outcome that I have arrived at
above; it would be superfluous to deal with the other issues that
arose in this matter.
It follows that the
award stands to be
reviewed and set aside.
[30]
In the interest of justice, I deem it expedient
not
to remit this matter back to the CCMA. The issues were properly
ventilated during the arbitration proceedings and the adequacy
of the
record of those proceedings is not placed in issue. I am,
accordingly, in a position to determine the matter to its finality.
[31]
In the light of
the
findings I have arrived at above, it is clear that the dismissal of
Ms Campher was procedurally and substantively unfair.
[32]
Turning
to the issue of remedy, Ms Campher seeks reinstatement. The SABC
contends that reinstatement would not be an appropriate
remedy
because the position of Chief Financial Controller is no longer part
of the SABC’s Finance Department structure and
the manner in
which she approached her case, accusing the SABC on bad faith and
malfeasances. This argument is untenable given
the light of its
concession that Mr Motsoeneng has been dismissed from the SABC.
The argument that Ms Campher ought to have led evidence to show her
how she mitigated her loss subsequent to her dismissal is equally
untenable as it was rejected by the Constitutional Court in
Billiton
Aluminium SA Ltd v Khanyile,
[5]
for
it undermines the claim to the primary statutory remedy of
reinstatement.
[33]
In
Department
of Agriculture, Forestry and Fisheries v Baron and Others,
[6]
the
Labour Appeal Court (LAC) dealt with the practicability of
reinstatement in similar circumstances and pronounced as follows:
‘…
The
provisions of section 193 of the LRA are clear and its meaning has
been clarified in decisions,
inter
alia
, of this Court and the
Constitutional Court. Mr Baron had no
onus
to
show that it was not reasonably practicable for him to be reinstated.
Having found that Mr Baron had been dismissed as
is contemplated in
section 186(1)(b) of the LRA – in accordance with section 193 –
the arbitrator had to require Mr
Baron’s reinstatement. Mr
Baron wanted to be reinstated to the position he held at the time of
the dismissal letter,
which was to be extended for three years. There
was nothing to show that the circumstances surrounding the dismissal
are such that
the continued employment relationship would be
intolerable. There was further nothing to show that it was not
reasonably practicable
for the Department to reinstate Mr Baron as he
had sought, and Mr Barron’s dismissal was reasonably found to
be both, substantively
and procedurally unfair.’ (Footnotes
omitted)
[34]
Even in the present case, Ms Campher cannot be
denied the primary remedy in terms of the LRA, specifically seeing
that there is
no evidence to show that it would not be reasonably
practicable to do so. She must be reinstated to the position she
occupied before
she was dismissed; alternatively, to the same or
similar position to the one she occupied before she was dismissed on
the same
or similar terms and conditions of employment and without
loss of benefits with effect from 1 May 2018. The SABC shall pay Ms
Campher
full back pay for the period between 1 May 2018 and the date
of this order.
Costs
[35]
It is trite that costs do not follow the
result in this Court. Notwithstanding, this is a typical case where
it would not offend
the principles of fairness and equity that the
SABC be ordered to pay the costs. Ms Campher is an individual
litigant who had to
spend so much to vindicate her rights against a
patently arbitrary decision to terminate her employment contract.
[36]
In the premises, I make the following
order:
Order
1.
The arbitration dated 12 September 2017
issued under case number GAJB25668-16 is reviewed and set aside and
substituted with the
following order:
1.1
The dismissal of Ms Maria Christina Campher
was procedurally and substantively unfair.
1.2
The South African Broadcasting Corporation
SOC Limited is ordered to
reinstate Ms
Campher to the same or similar position to the one she occupied
before her dismissal and on the same or similar terms
and conditions
of employment with effect from 1 May 2018.
1.3
The South African Broadcasting Corporation
SOC Limited
shall pay Ms Campher full back
pay for the period between 1 May 2018 and the date of this order.
2.
The South African Broadcasting Corporation
SOC Limited shall pay the costs.
__________________
P Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicants:
Advocate G Pretorius SC
Instructed
by:
Makaula Zilwa Inc.
For the
Respondent:
Advocate P Bosman
Instructed
by:
Brand Potgieter Attorneys
[1]
Sidumo
v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para 110; see also
[2007]
12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC); See also
Head
of the Department of Education v Mofokeng
[2015]
1 BLLR 50
(LAC);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074 (SCA).
[2]
[2015]
5 BLLR 484
(LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16.
[3]
See:
Dierks v University of South Africa
(1999) 20 ILJ 1227(LC);
[1999] 4 BLLR 304 (LC) paras 137 to 138;
see also:
SA
Rugby Players’ Association and Others v SA Rugby (Pty) Ltd and
Others
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC); (2008) 29 ILJ 2218 (LAC) at para 44.
[4]
See:
Department
of Agriculture, Forestry and Fisheries v Baron and Others
(2019) 40 ILJ 2290 (LAC);
[2019] 12 BLLR 1289
(LAC) at para 38 -39.
[5]
Billiton
Aluminium SA Ltd v Khanyile
[2010] 5 BLLR 465
CC at paras 40 – 42.
[6]
Ibid
at para 42.