IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE
HELD AT JOHANNESBURG
Case No. JR 806/2001
In the matter between:
KNIGHTWATCH SECURITY (PTY) LTD
Applicant
and
MBILENI, N N.O. (cited in her capacity as commissioner
of the Commission for Conciliation, Mediation and
Arbitration) First
Respondent
THE COMMISSIONER FOR CONCILIATION, MEDIATION
AND ARBITRATION Second
Respondent
MDIDIMA, P & 5 OTHERS Third and Further
Respondents
J U D G M E N T
NTSEBEZA AJ:
1. This matter came before me on 21 June 2002 when I ordered that the
matter be postponed sine die because the papers were not in order. The
contents of the review application were missing from the file and,
according to Mr Snyman, who appears for the Applicant, the
disappearance of file contents in this matter had become the rule more
than the exception. Indeed, on 27 June 2002 my brother, Sutherland AJ
asked Mr Snyman to file an affidavit giving a history of why it appeared
documents seemed to be disappearing from the Court file and that the
matter was being delayed from being finalised. Sutherland AJ also
ordered that Mr Snyman once again prepare documents for the Court file
and that the Registrar should not release the Court file out of his/her
control. The matter was set down for 25 July 2002 when it again came
before me. Mr Snyman duly complied with this Court order and, on 25 July
2002, the documents that were filed as copies of the originals which had
disappeared out of the Court file, were the Applicant’s heads of argument
filed on 7 June 2002 and an entire Court file bundle containing all the
indexed pleadings which had been filed on 7 June 2002, which bundle has
an index and 175 bound pages.
2. I may indicate here that when the matter was heard, Mr Ndzimande, who
appeared on behalf of the Third and Further Respondents, claimed that he
had not been served, by Mr Snyman, with any documents for the hearing
on 25 July 2002. Mr Snyman produced another Court file bundle which he
handed over to Mr Ndzimande. Mr Snyman claimed that he had in fact
given the same Court file bundle, indexed and paginated, to Mr
Ndzimande on 7 June 2002. It is not for me to investigate and decide on
the circumstances surrounding the disappearance of documents from the
Court file, save only to remark that this is an extraordinary occurrence and
does not augur well for the administration of justice. It also begs the
question as to how it is possible for documents to disappear out of the
Court file with such regularity as has been testified to by Mr Snyman in the
affidavit which my brother Sutherland ordered him to file. It is a matter of
grave concern, and one which the Registrar of this Court must take
particular notice of. The affidavit of Mr Snyman is a serous indictment and
it would be hoped that definite steps are being taken in the office of the
Registrar to ensure that occurrences of this nature do not take place.
3. This is an application for the review of an arbitration award by a
commissioner of the Commission for Conciliation, Mediation and
Arbitration (“the CCMA”) in terms of section 145(1)(a), 145(1)(b) and
145(2) of the Labour Relations Act, No. 66 of 1995 (“the Act”). The said
arbitration award was handed down by Commissioner Mbileni (the First
Respondent) in terms whereof the Third and Further Respondents
(hereinafter referred to as “the employees”) were found to have been
unfairly dismissed and were awarded compensation. The Applicant seeks
to set aside that finding.
4. The employees allege that they were unfairly dismissed by the Applicant
on 22 August 2000. The Applicant posts security guards at the premises
of its customers whose property it safeguards. From time to time, and for
a variety of reasons – Applicant’s permanent guards being off duty, or
being off sick, or being on leave the Applicant procures the services of
casual guards to fill in the particular posts for the particular day. These
“casuals” are normally selected from a group of guards who usually
gather at the Applicant’s premises hoping to be selected for a casual
position for the day. All casuals so appointed by the Applicant get posted
and are paid for the day so posted. Simply put, there was always a large
“pool” of casuals from which the Applicant was able to fill daily posts that
became vacant on a daytoday basis.
5. Due to discrepancies that developed in this system of selecting casuals
from a pool of people who would merely gather at the gates of the
Applicant’s premises, the Applicant decided to conclude independent
contracts with a group of casual employees in terms whereof they would
be appointed for a specific period of time to work as and when required by
the Applicant during such periods. It is from such “casual pool” that the
employees in this application were drawn. According to the Applicant, all
the employees were appointed on the first occasion on the basis of a
casual position for one day on either 29 June or 3 July 2000 respectively.
They were given letters of appointment for the one day. Subsequent to
this first appointment, they continued to work on an ad hoc basis, and from
time to time, as and when required to fill a vacant post, being a part of the
group of casuals gathered at the Applicant’s premises every day.
6. In this regard, casual job sheets were made out for each day’s work in
respect of each of the individual employees. From the documents filed as
part of the Court bundle, it is clear from these documents that the
employees only worked on an ad hoc basis. Towards the middle of July
2000 the Applicant had vacancies for permanent staff appointments. The
casual workers were invited to apply for such posts, by way of agreeing to
undergo a free twoday course, with the Applicant in selecting the top
performers on such courses as permanent employees. All the individual
Respondents applied in writing. These courses took place on 18 and 20
July and 19 and 21 July respectively.The employees were not successful
in obtaining permanent positions, having failed to complete the relevant
courses. Only one of them actually completed the course but he also was
unsuccessful in obtaining employment. Having failed to obtain permanent
employment, the employees however remained part of the “casual pool” .
7. The Applicant has given a detailed account of how these employees were
engaged by it. For an example, one Price Mdidimba, according to the
Applicant, applied for employment on 29 June 2000. His application was
not successful. He was however given casual jobs from time to time, as
part of the casual pool. He worked on 29 June and on 6, 7 and 8 July. He
again applied for a permanent position as part of the 19 and 21 July 2000
test candidates referred to herein above. He did not succeed in his
employment application and was not appointed. He was then appointed
on a fixed term contract of employment from 17 November to 16
December 2000 which contract was signed by him. His fixed term contract
of employment terminated on 15 December 2000 which fact was
confirmed in writing to him on 8 January 2001.
8. The Applicant has similar details in respect of Dyson Maluleke, Meshack
Mashiola, Simiso Dalton Ndzimande and one George Mncube. In the
Applicant’s submission, no evidence whatsoever exists, nor was any
presented by any of the employees to, illustrate or prove any dismissal on
22 August 2000, which is their only stipulated date of dismissal. All of the
allegations by the Applicant are fully supported by substantial documentary
evidence and it does appear that all of this evidence, including
documentary support thereof, was placed before the First Respondent (the
arbitrator). The criticism of the arbitrator’s award is the fact that it does not
seem to refer to this substantial documentary evidence presented to him
nor does it fully record the evidence available to it. The further criticism is
that the arbitrator failed also to appreciate the fact that the employees had
the onus to prove that they had been employed, as well as the existence of
a dismissal, all of which had always been in dispute. See Lewis and
Another v Contract Interiors CC (2001) 22 ILJ 466 (LC); Ngcobo and
Others v Blyvooruitzicht Gold Mining Co. Ltd (1999) 20 ILJ 1996 (LC);
Sappie Kraft (Pty) Ltd t/a Tugela Mill v Majake N.O. and Others (1998) 19
ILJ 1240 (LC).
9. Mr Snyman submitted that the failure by the arbitrator to even record all
the evidence which was placed before her was a gross irregularity and a
clear indication of her fundamental failure to apply her mind to the facts
before her. Consequently, the arbitrator’s award being neither in
accordance with or supported by the bulk of the evidence properly before
it, is irregular, unreasonable and unjustifiable. All evidence shows that the
employees signed oneday contracts of employment, each of which
expired on each of the days that they were contracted for. Where there is
no evidence, either by way of a letter of dismissal or any particulars given
by the employees concerning an alleged dismissal on 22 August 2000,
and where there is no evidence by any of the employees that they in fact
worked on a continuous basis from the end of June/beginning of July until
22 August 2000, their purported date of dismissal, it is totally unreasonable
for the arbitrator to record, as she did, that all the employees worked from
either 29 June or 3 July until 22 August 2000 when they were dismissed.
Further, argued Mr Snyman, if, as they allege, the employees were
permanent as from either 29 June and/or 3 July 2000, why did they apply
for positions as part of the programme on 18 and 20 and 19 and 21 July
2000? This is an inconsistency that should have been taken into account
by the arbitrator, and to the extent that she did not do so, to that extent it
shows that she did not apply her mind at all to this evidence and therefore
acted in an irregular, unreasonable and unjustifiable manner.
10. Mr Snyman further argued that the arbitrator misdirected herself by
concluding that because the Applicant “allowed” the employees to work
beyond their initial oneday contracts the Applicant had created a
“legitimate expectation” that their services would not be terminated
without due process. This was a misdirection because it was never the
contention of the employees that they had been employed as “casual”
employees who had developed an expectation of being classified as
permanent employees. At all material times they had been contending
that they had been appointed as permanent employees and were
dismissed without reason or process. Mr Snyman also contended that in
any event, section 186 of the Act does not provide for alleged legitimate
expectation of due process. It provides for an expectation of continued
employment. Where the employees themselves contend that they were
permanent employees from the outset, there can be no room for arguing
that they had an expectation of continued employment. Mr Snyman finally
submitted that in none of the responses in their answering affidavits do the
employees in any way contradict the factual averments made on behalf of
the Applicant. To that degree, therefore, such factual evidence must be
accepted as uncontradicted evidence.
11. Mr Ndzimande, on behalf of the employees, did no more than merely state
to me that they were permanently employed because their employer had
told them so. According to him, the company had given them application
forms and had told them that they were being employed permanently. He
provided as “proof” that they had been employed the fact that they had
referred their matter to the CCMA. In his argument, he asked a question
as to how they could have been before the CCMA if they had never been
employed. He argued that the matter should not revert to the CCMA but
must be dealt with to finality in this Court and he made a prayer for
compensation and reinstatement.
12. On the evidence before me, and on the documentation provided, there is
no support for any of the contentions made by Mr Mdzimande on behalf of
himself and his colleagues. I find as a matter of fact and law that the
arbitrator’s award cannot stand. It is reviewable and must be set aside.
Insofar as the arbitrator, in ordering compensation to be paid, does not
appear to be motivating or giving reasons for its compensation award, this
constitutes an irregularity, rendering its award reviewable, argued Mr
Snyman. Mr Snyman referred me to a number of authorities in support of
his submission that it is incumbent upon an arbitrator to properly motivate
a determination of the quantum of compensation to be awarded in favour
of a successive party. La Vita v Boymans Clothiers (Pty) Ltd (2001) 22 ILJ
454 (LC); Zeelie v Price Forbes (Northern Province) (2001) (1) 22 ILJ
2053 (LC); Alpha Plant and Services (Pty) Ltd v Simmonds and Others
(2001) 22 ILJ 359 (LAC).
13. It is not necessary for me to refer to any of the authorities quoted to me by
Mr Snyman to any great length. I accept that in the view that I have taken
of the matter, the arbitrator did not exercise her discretion judiciously in her
award of compensation for all the reasons submitted by Mr Snyman. In
the result, the order is as follows:
(a) The award of the First Respondent, being Commissioner Mbileni of the
Second Respondent, under Case No. GA 108298, dated 13 May 2001, in
the arbitration proceedings between the Applicant and the Third and
Further Respondents is hereby reviewed and set aside;
(b) The finding that “the dismissal of the Applicants was unfair” in the
award of the arbitrator is substituted by a finding that none of the Third and
Further Respondents were employed by the Applicant, and the CCMA
accordingly has no jurisdiction to entertain the matter;
(c) The order of compensation is substituted by the order that there is no
compensation due to any of the Third and Further Respondents.
___________________________
D B NTSEBEZA
ACTING JUDGE OF THE LABOUR COURT
Date of hearing: 25 July 2002
Date of Judgment: 27 AUGUST 2002
For the Applicants: MR SNYMAN
On behalf of Snyman van der Heever Heyns
Isle of Houghton, Harrow Court 1
Boundary Road, Houghton
P O Box 280 Parklands, 2121
For Respondents: MR S D MDZIMANDE
On behalf of MDIDIMA & OTHERS
Extension 7A, Orange Farm
P O Box 12156 Orange Grove, 1805