IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN )
CASE NO : C 654/2002
In the matter between:
1 WESTERN CAPE BEDDING MANUFACTURERS CC
Applicant
(Registration No 1999/046843/23
and
2 ONDERHANDELINGSRAAD VIR DIE
MEUBELVERVAARDINGINGS INDUSTRIE (WES KAAP)
ADV J M BROWN NO Second Respondent
JOHN EDWARD BAILEY Third Respondent
____________________________________________________________
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JUDGMENT
_________________________________________________________________
TIP A J
INTRODUCTION
1 The applicant seeks to have reviewed and set aside a determination and award of
the second respondent, made on 14 May 2002 pursuant to an arbitration
conducted under the auspices of the first respondent. The application has not been
opposed by any of the three respondents.
2 The arbitration dealt with the alleged unfair dismissal of the third respondent by
the applicant. Whether or not there had indeed been a dismissal is one of the
matters in dispute. However, a key preliminary question concerns whether the
third respondent was an employee of the applicant at the relevant time.
3 That issue presented itself because the applicant had shortly before disposed of the
foam manufacturing component of its business. That transaction was far from
crisply defined. No formal sale agreement had been signed. Moreover, the
apparent purchaser was a close corporation yet to be established. That process
was as it happened never completed, because the entire plant was consumed in a
fire soon after the events here in question.
4 The degree of uncertainty surrounding this transaction is reflected in the record of
the proceedings before the second respondent. Varying indications are given from
time to time as to the understanding that the individuals had of the status of the
transaction and, more particularly, what the exact position was of the third
respondent. By way of illustration, the third respondent stated at one stage that he
understood that he had become employed by a different entity from the applicant.
On the other hand, he also continued to assert that the applicant was throughout
his employer.
5 In view of the conclusion that I have reached in this matter, it is neither necessary
nor desirable for me to analyse the evidence. It is sufficient for me to summarise
the highlights of the chronology of the events:
5.1 The applicant engaged the third respondent as the manager of its factory at
ParowEast, with a salary of R5000 per month and the use of a bakkie. In
evidence before the second respondent, the third respondent said that there
was also mention of profitsharing, but nothing further was discussed
about it.
5.2 Mr Carel Bosch is a member of the applicant and it is he who was
involved at all relevant stages.
5.3 The third respondent was employed to manage the production of foam
rubber, together with associated purchasing and administrative functions.
5.4 In the course of September 2001 the foam rubber business was sold to
Western Cape Foam Suppliers CC (“WCF”), in the somewhat inchoate
circumstances that I have already described.
5.5 The principal member of WCF was Mr Johan Rossouw.
5.6 On 1 October 2001 the third respondent was informed that part of the
foamrubber division has been sold to Mr Rossouw. There is a dispute
about whether the third respondent was told that he would thereafter be
working for Mr Rossouw.
5.7 In midOctober the foam plant was moved to different premises. The third
respondent assisted in the pricing of materials that were to be taken over.
5.8 Mr Rossouw had the keys to the new premises.
5.9 Mr Rossouw told the third respondent that he would no longer have the
use of a bakkie.
5.10 Mr Rossouw put two alternatives before the third respondent in relation to
his new position.
5.11 On 1 November 2001 the third respondent took sick leave until 5
November 2001.
5.12 On his return, Mr Rossouw told him that he wasn’t actually required at the
factory.
5.13 Mr Bosch told him (again) that Mr Rossouw was in charge of the new
business. The third respondent was aware that there was now a different
CC doing the foam manufacturing.
6 As will be immediately apparent from the preceding summary of the events, Mr
Rossouw would in the normal course have been a very material witness in respect
of, especially, what the third respondent understood his position to be and by
whom he was indeed employed at the time.
7 Mr Rossouw did not testify at the arbitration. In the founding affidavit filed in
support of this review, Mr Bosch states the following in this regard:
“Ek is ingelig deur Mnr Van Renssen, die kommissaris van Eerste
Respondent wat die konsiliasie verrigtinge waargeneem het, dat Applikant
nie geregtig is op regsverteenwoordiging by die arbitrasie verrigtinge nie.
Voor die konsiliasie is ek deur Mnr Van Renssen ingelig dat slegs ek en
my vrou die verrigtinge moet bywoon …
“Ek het Mnr Van Renssen weer die dag voor die arbitrasie gebel en hom
meegedeel dat ek graag regshulp wil h ê by die arbitrasie en hy het my meegedeel
dat ek nie geregtig is op regsverteenwoordiging nie. Ek het aanvaar dat ek ook
nie getuies kon roep nie en niemand het tydens die arbitrasie vir my die
geleentheid gegee om getuies te roep nie.
“Op die dag van die arbitrasie het Van Renssen ook telefonies met
Mnr Rossouw gepraat. Mnr Rossouw het hom ingelig dat Derde
Respondent by WCF werksaam was en dus nie deur Applikant ontslaan
kon word nie. Van Renssen het geen verdere stappe geneem nadat hierdie
inligting aan hom verskaf is nie. Van Renssen het ook vir Rossouw ingelig
dat geen mondelinge getuienis deur Rossouw gelewer kan word nie. ”
8 A confirmatory affidavit deposed to Mr Rossouw was filed with this application.
9 As I have already indicated, this application is unopposed. The first respondent
simply filed a notice indicating in essence that it would abide the decision of this
Court. As a result, these averments about what Mr Van Renssen said concerning
the evidence of Mr Rossouw stand uncontradicted. I must accept them at face
value. I must similarly accept that the course of the arbitration would on the
probabilities otherwise have been different, at least in the important respect that
the evidence of Mr Rossouw would have been presented.
10 On the face of it, Mr Van Renssen was informed by Mr Rossouw that WCF was
the employer of the third respondent and not the applicant. That would plainly
have been highly relevant in the arbitration which was shortly thereafter to begin
before the second respondent. In those circumstances, it is inexplicable that Mr
Rossouw should have been advised that he could not give oral evidence.
11 There is no suggestion in the papers before me that any of these exchanges were
brought to the attention of the second respondent. Nonetheless, they impact
directly and materially on the arbitration that he conducted. That arbitration was
arranged within the framework of the first respondent and Mr Van Renssen, as a
designated agent of the first respondent, cannot be regarded as a stranger to the
proceedings.
12 This is not a case where this Court is in a position to substitute its findings for
those of the arbitrator. That follows from the mere fact that the evidence of a
material witness came not to be presented. It is also not a case where justice will
be served through an order simply reviewing and setting aside the determination
and award of the second respondent.
13 In the result, I make the following order:
1 The determination and award made by the second respondent on 14
May 2002 in his capacity as an arbitrator of the first respondent is hereby
reviewed and set aside.
2 This matter is remitted to the first respondent for fresh enrolment
for arbitration before an arbitrator other than the second respondent.
3 There is no order as to costs.
_______________________________
K S TIP
Acting Judge of the Labour Court
Date of hearing : 6 May 2003
Date of judgment : 10 September 2003
For the applicant : Adv H E De La Rey
instructed by Bornman & Hayward Inc