Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA NOT
REPORTABLE
BRAAMFONTEIN CASE NO: JR1077/01
2002.09.20
In the matter between
C H STRAUSS Applicant
and
CCMA Respondent
____________________________________________________________
J U D G M E N T
____________________________________________________________
PILLAY, J: I am indebted to the parties for their concise
presentation of the case which has enabled me to decide the
matter expeditiously.
The facts in this review are as follows:
The applicant alleges that the first respondent
commissioner's award is reviewable because, on the evidence
before her, there was no indication that the third respondent
had committed an unfair labour practice as the applicant who
had the onus of proof, had failed to prove on a balance of
probabilities that the third respondent had undertaken to
double her salary after three months' probation, review it
every three months and increase it every six months. The
commissioner had found that the applicant's evidence had
been rebutted during cross-examination. As a result of this
finding the commissioner dismissed the applicant's claim of
unfair labour practice. That decision was reviewable, it was
submitted.
The applicant alleged at the arbitration, and reiterates in
these proceedings, that the terms of the contract were in
writing. It is common cause that the written contract, which
appears in the bundle from pages 21 to 28, constituted the
terms of the written contract, However, she further alleges
that the other verbal terms of the contract were as stated in
paragraph 7 of her notice of motion. More importantly, the
terms she relies on as constituting the alleged unfair labour
practice were that:
"After my three month probation my salary would double.
Thereafter I would receive a salary increase every six months
and a salary review every three months."
The principal argument on behalf of the applicant is that
the respondent failed to testify. The commissioner therefore
had not been placed with all the information and could
therefore not have assessed on the balance of probabilities the
material before her.
I turn to consider the commissioner's reasoning and to
determine whether there can be any validity in the applicant's
submissions.
It is not in dispute that the evidence before the
commissioner was that the applicant had earned R8 000 per
month when she was an employee at Centenary Services. It
was also not in dispute that the evidence before the
commissioner was that, in terms of the contract of
employment, she was to be paid R4 000 per month by the
third respondent.
It is also common cause that the contract of employment
states at paragraph (b):
"Remuneration: Gross salary of R4 000 per month and your
salary reviewed. The employee's salary will be reviewed on the
anniversary date of the employee joining Paracon or from the
last increase date."
It is common cause that the applicant commenced
employment on 23 August 1999. It is also common cause that
she received an increase in March 2000 and was entitled to
have her salary reviewed in August 2000 in terms of the
written contract.
The terms relating to the salary review, as recorded in
the written contract, are completely contrary to the applicant's
oral evidence. Applying the parol evidence rule the document
must speak for itself, which it did. It is not in dispute that the
applicant bore the onus of proof on a balance of probability. In
those circumstances the commissioner was entitled to draw
the inferences she did, to rely on the written document and to
find that, on the evidence before her, that there was no
indication that the third respondent had committed any act of
unfair labour practice.
The evidence that I have referred to, that is the contract
of employment and the facts that are common cause before
me today and which were common cause before the arbitrator,
are sufficient to dismiss the applicant's claim.
However, the commissioner went further and drew an
inference from the fact that the applicant had been employed
at R8 000 and that she had accepted employment at half that
rate. The commissioner was not persuaded by the applicant's
version. She enquired of the parties whether there had been a
pre-arbitration meeting to determine whether, on the evidence
presented before her it was probable that there was such an
undertaking by the third respondent as alleged by the
applicant, and whether the third respondent had acted unfairly
by failing to comply with such an undertaking. She found on
the evidence, led by the applicant in the form of the contract
of employment, that she was fully aware of the provisions
relating to her salary. Given the fact that she had been
previously employed, she was also familiar with employment
contracts.
It is common cause before me here today that she stood
up for herself and was, as both parties seem to agree, hard-
headed and firm about her position.
On those facts too the commissioner was justified in
drawing the inference that the applicant could not reasonably
have come to the conclusion that the terms of her contract of
employment were as she had stated them to be. The
commissioner also took into account the applicant's delay in
launching her application.
On the facts that were common cause before the
commissioner and before me today there is no evidence that
the applicant protested about the third respondent's alleged
breach of its verbal undertaking. Such breach, on the
applicant's version, should have occurred three months after
her employment. The first written communication about the
alleged breach, it is common cause, was on 5 June 2001, a day
before the arbitration.
The applicant's version is that she had protested verbally
prior to that, on several occasions. Her explanation for not
having written to the third respondent about this issue is that
the third respondent did not like to use paper. I understand
from that that the third respondent was reluctant to record
issues in writing.
Be that as it may, she nevertheless lodged a written
complaint in August 2000 about other matters, without raising
the alleged breach of the verbal undertaking. The alleged
breach of the undertaking is so fundamental and serious,
relative to the applicant's other grievances, that one would her
to have done something more decisive, like referring a dispute
to the CCMA as soon as it had occurred. It is common cause
that she did not do so.
On those facts alone I am satisfied that the arbitrator's
award is justifiable on the basis of the material before her.
The other factors which render this award unassailable is
that the applicant alleges that the commissioner should have
heard the evidence of the respondents. I have not been
informed, and nor does the applicant rely on any evidence,
that the arbitrator was prevailed upon by any party to make a
ruling on whether the third respondent's witnesses should
testify. If the arbitrator was not called upon to make such a
ruling then the arbitrator must decide the matter on the
material before her. It is not up to the arbitrator to call
witnesses. This is the sort of matter where the applicant's own
version did not make out a case. If it did not make out a case
the third respondent was not put to its defence, and the
commissioner was entitled to draw the appropriate inferences
in the circumstances.
Those are briefly my reasons.
At the outset Mr Jonker assured me that I need not read
the record. In reply, and after having heard Mr Rossouw, he
suggested that I should read the record. I informed him that he
was at liberty to raise and point me to any matter anywhere in
the record that contradicted any submission that Mr Rossouw
made. None of the portions to which I was referred to have
made a serious or any dent on Mr Rossouw's submissions. Nor
have I been pointed to any evidence on the record which
contradicts the material evidence to which Mr Rossouw
referred me. Those portions of the record to which Mr Jonker
referred me to I do not have any difficulty in accepting his
submissions.
These relate firstly to whether the applicant made
certain admissions. I accept that she did not on the record.
However that portion of the record to which he referred also
showed that the applicant was being evasive.
The other portions of the record to which Mr Jonker me to
continued to show me that the applicant was not meek and
submissive. She had asserted herself and did not accept the
respondent's version. That too I accept. Other than that I was
not shown any other portion of the record that might be
material to the applicant's case and which refuted the
allegations or the submissions made by Mr Rossouw.
In those circumstances I have been able to dispose of
this matter on the facts that are common cause before me and
expeditiously, without having read the entire record.
The application for review is dismissed with costs.
_____________________
D PILLAY J
ON BEHALF OF THE APPLICANT: MR JONKER
ON BEHALF OF THE RESPONDENT: MR ROSSOUW