Sneller Verbatim/PJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1161/00
2001-06-15
In the matter between
MAESTRO HOUSING [PTY] LTD Applicant
and
1st Respondent
2nd Respondent
3rd Respondent
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EX TEMPORE JUDGMENT
________________________________________________________________
REVELAS, J:
1.The third respondent was employed by a company called Bessemer Steel
Construction [Pty] Ltd. [“Bessemer”]. Thereafter, he was employed by
the applicant who is a labour broker and who then hired his service to
Bessemer Steel to do work there.
2.In terms of the contract with the third respondent there were no guarantees
that the third respondent would always be given work by the applicant.
3.
4.Evidence was led before the arbitrator, whose award (in favour of the third
respondent), the applicant now seeks to have set aside, that Bessemer
became unhappy with the third respondent's performance. Warnings were
given to him by Bessemer although Bessemer was not his employer, but the
applicant, (“Maestro Housing”) held disciplinary hearings. Because
Bessemer was unhappy with the third respondent's performance, the
applicant then wanted to transfer the third respondent or to engage his
duties at some other company within the new group of companies that was
formed. The position held less favourable conditions of employment and
was unacceptable to the applicant. He insisted that he wished to work
for Bessemer Steel. The arbitrator found as follows in his award:
"This effectively attempts to allow Bessemer to get rid of employees it is not
happy with without giving such employees the right to defend themselves at the
level of their effective employment. The fact that Bessemer and Maestro are both
controlled by the same holding company and have certain members of
management incognant, makes it highly unlikely that Maestro would contest a
finding made by a manager of Bessemer whether the employee was guilty of not
rendering satisfactory services or misconduct or not abiding by any rules,
regulations, policies, procedures or standards. The fact that Mr De Klerk just
accepted Mr Hoogenhout's allegations against the applicant without a proper
investigation corroborates this. This makes the playing field doubly uneven. The
fact that the applicant was technically a temporary employee in terms of his
contract with Maestro, makes no difference to his right to fair treatment in terms
of the act.
In these circumstances I believe I am entitled to pierce the corporate in order to
unveil the true situation which exists in this case."
5.The arbitrator then, after considering the relevant law on the subject,
found that the applicant, in order to attempt to circumvent the
requirements of the act, did not treat the third respondent fairly. The
arbitrator also found that a constructive dismissal took place because
the respondent made continued employment intolerable and that this
dismissal was unfair. The third respondent was then reinstated.
dismissal was unfair. The third respondent was then reinstated.
6.In order to interfere with this award, the applicant needs to demonstrate
that the conclusion arrived at by the arbitrator was not justifiable or
reasonable in terms of the reasons given for it.
7.In a well reasoned award, the arbitrator gave, in my view, a justifiable
award.
8.In his analysis of the evidence he did not overlook any relevant factors
and on the facts before him, I am of the view that he could not have
come to another conclusion.(not that is the test.)
9.The applicant's case is couched in the form of an appeal, and in my view,
has failed to demonstrate that the award is reviewable. Consequently
the application should fail.
10.The arbitrator reinstated the applicant. Both parties have submitted that
compensation instead of reinstatement should be granted if the review
fails. It is however not within my province to amend an award, which I
am not prepared to interfere with. The parties should make their own
arrangements in this regard.
11.In the circumstances the application for review is dismissed with costs.
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E. Revelas