IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case
no: J3637/98
In the matter between
Applicant
and
1st Respondent
2 nd Respondent
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JUDGMENT
Delivered on 23 April 2002
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REVELAS J:
1. The applicant commenced employment with the second respondent on 1 May
1997 and remained in its employ until 31 October 1997. The applicant referred an
unfair dismissal dispute to the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”). Conciliation failed and the matter was referred to
Arbitration. Mr. Feizal Saint conducted the arbitration proceedings and found in
his award, that the applicant was employed on a temporary basis and that no
reasonable expectation had been created by the second respondent in respect of the
employment of the applicant on a permanent basis. The applicant’s claim was
dismissed.
2. The applicant now seeks to review the award of the commissioner.
1. 3. The second respondent has raised a point in limine .
4. As an annexure to its founding affidavit, in support of its application for leave to
file answering papers in the review application, the second respondent has
attached two important documents.
5. The first document is a letter from the second respondent’s attorneys to the
SACCAWU legal union wherein the second respondent’s attorneys of record, with
reference to the matter in question, wrote:
“We confirm that we settled the matter on the basis that the applicant
withdraws the
application, each party to pay their own costs .”
This letter is dated 12 December 2000.
6. On the same day, SACCAWU addressed a letter to the second respondent’s
attorneys, (the second document) stating the following:
“We accordingly wish to advise you that the abovementioned matter will no longer
be withdrawn. The applicant has decided to pursue it further on the 21 Dec
2000 at Labour Court (sic).
We apologize for any inconvenience .”
7. The second respondent’s argument is, that based on the aforesaid two letters a
compromise had been reached and that the matter has become res judicata .
8. The second respondent has also brought an application for condonation for the late
filing of its papers, which is granted on the basis that the second respondent’s
prospects of success in the review matter are good.
9. The arbitrator, found that on the probabilities, and on the documentation before
him, the applicant’s contract of employment had expired on 28 October 1997 in
terms of her contract of employment. A copy of the contract was also attached to
the review application and clearly states that the contract is “ terminated on
28/10/97. If you work longer than this period or are offered an extension or renewal
of this contract, your status as a temporary employee shall not automatically
change.” The applicant was also paid commission on a monthly basis.
10. The applicant testified that she was employed on a permanent basis from the
onset. She stated that she signed a document reflecting her employment as being
temporary in nature, under duress. She was told that if she did not sign the
document she would be summarily dismissed.
11. The arbitrator made a credibility finding by accepting the version of Mr. Hloma of
the second respondent, that there was no duress.
12. The applicant has not demonstrated upon which grounds I should interfere with
the award. The nature of the applicant’s grounds of review, reminds one of an
appeal, which a review application is not.
13. Insofar as the offer of compromise is concerned, I am unable to find on the papers,
that a firm settlement agreement was reached between the parties. Since both
parties were successful in this application, there is no order as to costs.
14. The following order is granted:
1. The application for leave to file opposing affidavits in the review application is
granted.
2. The point in limine is dismissed.
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E. Revelas
Adv. WG la Grange
Instructed by Hofmeyer Herbstein & Gihwal Inc.
On behalf of the second respondent: Mr. A. Motane from SACCAWU