NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO:
617/00
IN THE MATTER BETWEEN:
MERIT RECRUITMENT
APPLICANT
AND
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION FIRST
RESPONDENT
MS. C. PILLAY C/O
SECOND
RESPONDENT
BONGUMUZI REGINALD DLAMI THIRD
RESPONDENT
JUDGMENT
Ngcamu AJ:
[1] This is an application for the review of the Commissioner’s award made by
the second respondent in favour of the third respondent. The review is being
opposed by the third respondent. The third respondent has in a separate
application heard together with the review filed an application for the award to
be made an order of this court.
[2] The review is brought on the grounds that the Commissioner placed onus on
the applicant before the third respondent had discharged the onus of proving the
dismissal. It is being submitted that this constitutes a gross irregularity in the
conduct of the proceedings. It was further submitted that the Commissioner
based his award on facts other than those put before her and for that reason
exceeded her powers.
[3] Section 145 (1) of the Labour Relations Act entitles a party to approach this
court for the review and setting aside of the arbitration award if such party
alleges a defect in any arbitration proceedings. In terms of section 145 (2) (a)
the defect may mean that the Commissioner committed misconduct in relation
to the duties of the Commissioner as an arbitrator, committed a gross
irregularity in the conduct of the arbitration proceedings, or exceeded the
Commissioner’s powers.
[4] The applicant is a close corporation carrying one business as a supplier of
contract labour. The applicant employed the third respondent until his
employment was terminated on 18 th October 1999. The third respondent
disputed the termination of employment and referred the dispute to the first
respondent (“CCMA”) for conciliation. The dispute was unresolved at
conciliation and the matter went for arbitration before the second respondent.
At the conclusion of the arbitration proceedings the second respondent made the
award and declared the dismissal of the third respondent unfair. The
compensation of the R 23 50320 was awarded.
[5] The applicant employed the third respondent and placed him with the
Durban Metro Water. A written agreement was signed. The agreement is
entitled “Fixed Term Contract of Employment”. Clauses 2, 3 and 4 of the said
agreement are relevant in this matter and they read as follows:
“2. Merit Recruitment is not in a position to offer permanent employment to the
assignee or predict the duration of the project and hence the duration of this
contract of employment. At this stage, is envisaged that the project will last
until the project is completed.
3. The assignee shall be employed as a diesel mechanic at the company’s
premises to assist in the project.
4. The engagement shall commence on the date of signature hereof and shall
terminate either, on completion of task for which the assignee was employed, or
on completion of the project for which the assignee was employed, whichever
occurs first.”
[6] Clause 12 of the agreement provides that the termination shall be given by
either party one week prior to termination and shall be in writing. Clause 13
entitles the applicant to terminate the employment if the third respondent is
found guilty of any conduct justifying dismissal.
[7] Section 192 (1) provide that the dismissal must be established by the
employee. Section 192 (2) obliges the employer to prove the fairness of the
dismissal. It stands to reason that whenever the question of the dismissal is in
dispute, the employee bears the onus to prove it. It was submitted on behalf of
the applicant that the Commissioner erred in placing the onus on the applicant
before the third respondent had discharged the onus. This submission is based
on the interpretation placed on the answers given by the applicant during the
commencement of the arbitration hearing. The Commissioner put certain
questions to the parties to establish if the dismissal was in dispute.
[8] The pertinent questions and answers put by the Commissioner were the
following:
Record page 2:
Arbitrator: Okay. Initially both the parties would make their opening
statements, okay, outlining the issue involved, so that would be well, briefly
outlining the issue that’s involved. And can I take it that the existence of the
dismissal is not in dispute?
Mr. Wood (pg 3): Well I would say it was a dismissal, I think...
Arbitrator: It was a dismissal, are both the parties ... (incomplete)?
Mr. Wood: No, I think it was a termination of contract.
Arbitrator: But did it amount to a dismissal? Is Mr. Dlamini in your employ at
the moment?
Mr. Wood: No. He’s not.
Arbitrator: No, then that would be regarded as an alleged dismissal.
Mr. Wood: I see, okay.
Arbitrator: Which means now the onus would be on you to show that the
dismissal was fair.
Mr. Wood: Okay.
[9] The Commissioner came to the conclusion that the issue to be decided was
whether the employee’s dismissal was fair. He came to this conclusion on the
basis that the dismissal was not in dispute. The main ground for this review is
that the arbitrator placed the onus on the applicant. The arbitrator’s conclusion
indicates that once the employee is no longer in the employment of the
employer there is a dismissal. This is in my view a misdirection as the
Commissioner failed to apply his mind to the answers given.
[10] It was submitted on behalf of the applicant that the arbitrator committed
gross irregularity in terms of section 145 (2) (a) (ii). It was further contended
that the finding by the Commissioner that Mr. Wood had said the third
respondent had been dismissed was a misinterpretation of the evidence which
also constitutes a gross irregularity and accordingly a defect in the proceedings.
The answers given by Mr. Wood are inadequate for reaching the conclusion that
the dismissal was not in issue.
[11] It is not necessary for me to go into details regarding the question of
whether the third respondent was employed on fixed contract as I have
concluded that the review must succeed on the question of onus which was
placed on the applicant. I have very strong reservations about the fairness of the
the dismissal but I make no finding on it.
[12] It is the duty of the arbitrator to guide the parties at the arbitration hearing.
This duty is even more where the parties have no legal background and
unrepresented. No facts should be taken for granted. It was contended on
behalf of the third respondent that the decision of the arbitrator was correct as
Mr. Wood confirmed that he had dismissed the employee.
[13] Mr. Wood’s answer is incomplete where he said “Well I would say it was a
dismissal, I think ...”. Mr. wood further said it was a termination of the
contract. For the Commissioner then to conclude that the dismissal was
admitted by the mere interpretation of these answers is to me insufficient. I
therefore come to the conclusion that this was a defect in the proceedings.
[14] The proceedings proceeded on the basis that the employer had the onus to
prove fairness of the dismissal. This prejudiced the employer right from the
beginning of the hearing. The Commissioner did not evaluate the answers
given by the employer and assumed that because the employee was no longer in
employment, that is a dismissal. The answers did not justify such conclusion.
[15] In Standard Bank of South Africa v CCMA and Others unreported case No.
J642/97 at paragraph 24 Tip AJ said: “ Where a Commissioner sitting as an
arbitrator has misconstrued oral or documentary evidence, or has ignored or
misapplied relevant legal principle, to an extent that is in appropriate or
unreasonable then the Commissioner has failed in the task assigned under the
Act. It cannot be so that the legislator contemplated that an aggrieved party in
such a circumstances would find itself without relief. That relief lies in a
review application to this Court.” Similarly in this case when the
Commissioner has misinterpreted the answers given his award can be reviewed
if such misinterpretation resulted in that parties prejudice. This will in my view
be a defect in the proceedings.
[16] In the University of the North v Mthombeni No. and Another unreported
case No. J630/97 the following was said at paragraph 28: “It is open to this
court in terms of section 145 to review the awards of the Commission even
where a bona fide mistake of the fact or law is committed only where it can be
shown that as a result thereof an injustice has been perpetrated. Where no
injustice has been occasioned by such a mistake the award is immune to legal
challenge in terms of section 145. An injustice is perpetrated where it is shown
that a party was deprived of a fair hearing or that a Commissioner did not apply
his mind to the matter before him either by ignoring direct evidence before him,
or relying on evidence not placed before him”.
[17] The placing of onus on the applicant resulted in an injustice and it is on this
ground that the award is reviewable, I do not find it necessary to deal with
other grounds raised by the applicant in view of my findings on the first ground.
In the light of this, I make the following order:
(a) The award is reviewed and set aside.
(b) The matter is remitted back to the CCMA to be heard by another
Commissioner.
(c) The third respondent’s application in terms of section 158 (1) (c) under case
No D591/00 is dismissed.
(d) There is no order as to costs.
Cases referred to:
1. Goldfield Investments LTD and Another v City Council of Johannesburg and
Another 1938 TPD 551 at 560.
2. FAWU and Another v Lauschagne and Others (1999) 3 BLLR 220 (LC).
3. HART v Hullett Aluminuim (Pty) LTD 231/97 (LC).
4. Venture Motor Holdings LTD t/a Williams Hunt Delta v Biyana and Others
(1998) ILJ 1266 (LC).
5. Balfour/Siyathemba Transitional Local Authority v CCMA and Another
(1998) 9 BLLR (LC).
6. Shoprite Checkers (Pty) LTD v A. Ramdan and Others: Case No D409/99
dated 5 th April 2000.
7. Chetty and Motor Transport (Pty) LTD v National Transport Commission
and Another 1972 (1) SA 156 (N).
8. Mthembu and Mahomed Attorneys V CCMA and Others (1998) 2 BLLR
150.
9. Standard Bank of S.A. v CCMA and Others (unreported) Case No. J642/97.
10. University of North v Nthombeni NO. and Another (unreported) Case No.
J630/97.
NGCAMU AJ
FOR THE APPLICANT: P. JAFTA
FOR THE REPSONDENT: K. HASLOP