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JR241/03-JduP
BEGIN DEUR 'N "HEADER" TE MAAK Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR241/03
2003.10.24
5
In the matter between 10
J M MARUMO Applicant
and
CCMA AND OTHERS
Respondents
_________________________________________________________ 15
_______
J U D G M E N T
_________________________________________________________
_______
MBENENGE, A.J
: This is a review application brought in terms of 20
section 145 of the Labour Relations Act, 66 of 1995(the LRA).
The applicant was dismissed from the employ of the third
respondent, due to a complaint that he had performed his duties poorly,
and after he had been found guilty of misconduct. He challenged the
dismissal on the basis that it had been substantively and procedurally 25
unfair. The matter went on arbitration, and the arbitrator (second
respondent) found that the dismissal had indeed been substantively
and procedurally unfair. He further awarded the applicant
compensation which was the equivalent of eight months' remuneration,
calculated at the applicant's monthly salary, the quantum of which was 30
R18 632,72. The applicant seeks an order reviewing and setting aside
the award only in so far as it relates to the quantum of compensation
awarded to him. The applicant had been dismissed in November 2001,
and the arbitration proceedings were finalised on 31 January 2003
when the award was handed down. 35
The applicant's grounds of review, as I see them, are the
following.
1. The award was made on the erroneous factual basi s that he
earned R2 329,09 per month, whereas he earned R2 758,88 per
month. 40
2. The arbitrator did not exercise his discretion p roperly in that,
having found that the dismissal was both substantively and
procedurally unfair, he should have awarded more
compensation.
For his assertion, the applicant relies on section 194(3) of the 45
compensation.
For his assertion, the applicant relies on section 194(3) of the 45
LRA, which deals with compensation awarded to an employee whose
dismissal is automatically unfair. I hasten to say the applicant's
conclusion regarding the applicability of section 194(3) is wrong in law.
Because his dismissal was found to have been both procedurally and
substantively unfair, section 194(1) applied. Most importantly, in his 50
founding affidavit the applicant says:
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"I don't know how the Commissioner came to the 8 months'
remuneration."
Other than raising a point in limine , which was not pursued at the
hearing of the application, the upshot of the third respondent's 5
contention is that the applicant's case does not fit into any of the
grounds adumbrated in section 145. This is couched in the following
terms at paragraph 11.3 of the answering affidavit:
"I further deny that the grounds for review as all eged by the
applicant exist herein. I further dispute that the allegations made 10
in the applicant's affidavit are tantamount to misconduct on the
part of the first or second respondent as contemplated in the very
provisions of the Labour Relations Act, 66 of 1995, relied upon
by the applicant, and submit that the first or second respondent's
decision to dismiss the applicant's application amounts to a legal 15
conclusion which is rationally connected to the circumstances
and facts placed before the first/second respondent at the time."
Miss de Jongh, who appeared for the third responde nt, pursued
the same line of argument, but conceded that compensation was 20
awarded on the basis of a wrong monthly salary. The record is clear in
this regard. The applicant's monthly salary was R2 758,88. It would
indeed have been the simplest of things for the applicant to approach
the commissioner for a correction of the award on the basis that there
had been a patent error regarding his basic monthly salary. The matter 25
is now before this court for a determination. I would not put form over
substance by remitting the matter to the third respondent solely on the
basis of the patent error. More so in the light of the view I take of the
entire matter.
30
The real issue is whether other than the wrong reference to the
applicant's basic salary there are other entertainable grounds of review.
The record reveals that the applicant was, during September
2002, in the employ of Real Workers Union. The second respondent
2002, in the employ of Real Workers Union. The second respondent
found as much in his award. He states: 35
"It was further indicated by the respondent that should I find in
favour of the applicant. I take into consideration that applicant
was employed by Real Workers Union shortly after his dismissal.
The applicant indicated that he was employed only during
September 2002 by Real Workers Union." 40
The applicant was thus out of employment for sixte en months,
less the month during which he was employed by Real Workers Union.
The record and the award do not support Miss de Jongh's submission
that the applicant was employed beyond September 2002.
Furthermore, no version gainsaying that of the applicant is contained in 45
the answering papers. All one finds in this regard is a bald denial by the
third respondent.
After finding that the applicant "was employed only during
September 2002 by Real Workers Union" the second respondent could 50
not have come to court championing a different view. Therefore, Miss
de Jongh's submission in this regard is, with respect, without merit. It
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JR241/03-JduP
now remains to consider whether the applicant has made out a case for
a reviewal and setting aside of the compensation award.
In my view he has: Firstly, it was incumbent on th e arbitrator,
after finding that the dismissal was both substantively and procedurally 5
unfair, to have resorted to the provisions of section 194(1) of the LRA
and make a just and equitable compensation award, not more than the
equivalent of 12 months' remuneration, calculated at the applicant's
monthly rate of remuneration on the date of dismissal, i.e. R2 758,88.
Having recourse to the fact that the applicant was out of pocket for 15 10
months, the award is surprisingly silent regarding why the maximum of
12 months was not granted. It would be overly technical of me not to
find in the circumstances that there was no rational basis for awarding
compensation on the basis of 8 months' salary. When a dismissal is
both substantively and procedurally unfair the proper approach is that 15
set out in section 194(1) of the LRA.
Even assuming that the applicant had been employed beyond
September, and still is in the employ of another entity, it would have
been incumbent on the second respondent to give consideration to 20
whether or not it was just and equitable to award compensation on the
basis of 9 months' salary. Therefore, the sole reason given for the
compensation award is incomprehensible in my view (Abdull &
another v Cloete NO & others 1998(19) ILJ (LC) at 802F-G). The
failure to properly invoke section 194(1) of the LRA prevented the 25
applicant from obtaining a just and equitable compensation award. The
applicant's challenge regarding "how the commissioner came to 8
months' remuneration" is, in my view, a proper ground of review.
I am satisfied that the matter does not fall to be remitted to the 30
second respondent in view of the lapse of time and the need to
dispense speedy justice, and that there should be no order of costs.
dispense speedy justice, and that there should be no order of costs.
Furthermore, I deal with this matter purely on the understanding that
the applicant did not receive the original amount awarded by the
second respondent, namely R18 632,72. 35
O R D E R
In the result:
1. Paragraph 2 of the award of the second responden t dated 31
January 2003 is hereby set aside.
2. The following is substituted for paragraph 2 of the award: 40
"That the respondent pay to the applicant the equ ivalent of
12 months' remuneration calculated on the basis that on
the date of dismissal the applicant earned R2 758,88 per
month. [Therefore, R2 758,88 times 12 is equal to
R33 106,56.]" 45
3. The amount of R33 106,56 is to be paid to the ap plicant within 14
days from the date of service of this order on the third
respondent's attorneys.
4. There shall be no order of costs.
50
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