REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C682/03
In the matter between:
THE MAGIC COMPANY Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MAZWI V (Commissioner) Second Respondent
PHETE E Third Respondent
JUDGMENT
MURPHY AJ ,
1. The applicant seeks to review and set aside an arbitration award made by the
second respondent in his capacity as a commissioner of the CCMA on 24 May
2002 in terms of which he directed the applicant to pay the third respondent
R21900 as compensation for her dismissal, which he found to have been
procedurally and substantively unfair.
2. The third respondent was employed as a customer attendant at a children’s
entertainment centre operated by the applicant at Grandwest Casino in Cape
Town. On 2 July 2001, a customer Dr William Langenhoven, addressed a letter of
complaint to Ms Belinda van der Hoven, a public relations officer at the Casino,
complaining that the third respondent had been unhelpful, rude, cheeky,
disrespectful and had attended to customers with a mouth full of chewing gum. The
complaint arose out of an interaction between Dr Langenhoven, his wife and the
third respondent in which he had sought her assistance regarding a defective
machine which would not accept tickets to operate one of the games.
3. On the strength of this letter the third respondent was charged with rudeness to a
client, poor customer service and damaging the image of the company and was
dismissed on 13 July 2001 following a disciplinary hearing on 12 July 2001. No
documentation or minutes pertaining to the disciplinary enquiry have been filed in
these proceedings.
4. The third respondent referred a dispute regarding her dismissal to the CCMA on
the 26 July 2001. The applicant failed to participate in the conciliation process and
a certificate of outcome declaring the dispute to remain unresolved was issued on
18 February 2002, whereupon the third respondent requested the dispute to be
resolved through arbitration. The arbitration hearing took place at the offices of the
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CCMA in Cape Town on 13 May 2002. The applicant failed to attend the hearing
and accordingly the award was handed down on a default basis. For reasons that
have not been explained, the applicant chose not to seek rescission of the
arbitration award but instead brought this application for review.
5. In reaching his decision the second respondent considered the testimony of the
third respondent given under oath. She claimed that the customers had been in a
bad mood after standing in a long queue but wanted to “outjump” other customers
for preferential service and had become verbally rude towards her while she
attempted to attend to their query. The finding that the dismissal was substantively
unfair was based on this uncontested evidence. The commissioner further found
the dismissal to be procedurally unfair because the third respondent’s accusers
had not been called to appear at the hearing and she had been denied the
opportunity to challenge them. In this regard he held that the audi alterim partem
rule required the employee to be given the opportunity to face her accusers. It
seems that on the evidence before him the commissioner concluded that the
applicant had based its decision to dismiss the third respondent exclusively on Dr
Langenhoven’s letter.
6. The applicant’s founding affidavit, deposed to by its human resources manager, is
short on detail in relation to the events leading to the dismissal and the conduct of
the disciplinary hearing. The applicant essentially limits itself to three grounds of
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review.
7. The first ground is in effect a point in limine that the CCMA lacked jurisdiction
to hear the matter on the ground that the dispute should have been referred to
the Bargaining Council for the Entertainment Industry of South Africa. According
to Ms Pauw, the applicant’s human resources manager, when the applicant
received notification that the matter had been referred to the CCMA she sent “a
standard letter” to the CCMA informing it that it had no jurisdiction to hear
disputes between the applicant and its employees. No copy of such letter has
been annexed to the founding papers. She also claims to have contacted the
Gauteng Branch of the Bargaining Council and requested it to inform the CCMA
in Cape Town that it lacked jurisdiction to hear the matter. She does not identify
the person to whom she spoke, nor the time the call was made. She averred
further that the Bargaining Council duly telephoned the CCMA and informed it
that it lacked jurisdiction. Again, beyond her say so, there is no corroboration of
this or any supporting affidavit from the council. Still, it remained the applicant’s
view that the arbitration was conducted irregularly by the CCMA even though it
was aware that it lacked jurisdiction. Neither the first nor the second respondent
has put in an appearance to defend. Nor have they filed any supplementary
reasons for the award.
8. At the hearing of the review the applicant handed in two documents, which ought
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rightly to have been annexed to its founding papers. The first was a Certificate of
Registration certifying that the applicant is registered by the Bargaining Council as
an employer in the entertainment industry. The second was a Certificate of
Accreditation of Council issued by the CCMA in terms of section 127 of the LRA
accrediting the Bargaining Council to perform dispute resolution functions including
the authority to resolve disputes about unfair dismissals through conciliation and
arbitration.
9. On the face of it, therefore, it would seem that the Bargaining Council did indeed
enjoy jurisdiction in respect of the dismissal dispute. Section 191 of the LRA
provides that where there is a dispute about the fairness of a dismissal the
dismissed employee may refer the dispute in writing to a Council if the parties to
the dispute fall within the registered scope of that council, or to the CCMA, if no
council has jurisdiction. Although no argument was presented on the point, the use
of the word “may” in section 191 could be interpreted to mean that a dismissed
employee has an election to refer the dispute either to a council with jurisdiction or
to the CCMA. More likely though, keeping in mind the voluntarist scheme of the
Act, the election contemplated is the employee’s right to decide whether to refer a
dispute to the relevant body at all. For reasons which will appear presently, it is
unnecessary to decide this question.
10. Initially, in his heads of argument, Mr van der Schyff, who appeared for the
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third respondent, argued that the applicant had failed to provide any
substantiating evidence of the alleged absence of jurisdiction or any details of the
applicant’s affiliation to the council and contended that it was estopped from
raising the issue. When presented with the two certificates, however, he wisely
chose not to press the point, but instead opted to rely on section 147(3)(a) of the
LRA. The section provides:
“If at any stage after a dispute has been referred to the commission, it becomes
apparent that the parties to the dispute fall within the registered scope of a
council and that one or more parties to the dispute are not parties to the council,
the commission may
(i) refer the dispute to the council for resolution; or
(ii) appoint a commissioner or, if one has been appointed, confirm the
appointment of the commissioner, to resolve the dispute in terms of this
Act”.
10. Mr van der Schyff submitted that when one has regard to the applicant’s version, in
particular its claim that it wrote to the CCMA advising it that it lacked jurisdiction
and that the council had subsequently telephoned the CCMA to inform it similarly,
it is probable that the CCMA elected to assume jurisdiction in terms of section
147(3)(a) and thus was entitled to make the award despite the assumption of
jurisdiction in terms of this particular section not being reflected or recorded in the
award. Mr Stylianou, counsel for the applicant, on the other hand, in support of his
contention that there had been no conscious assumption of jurisdiction by the
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commissioner under section 147(3)(a), referred to the opening paragraph of the
award in which the commissioner recorded that he had “decided to proceed with
the matter in terms of section 138(5)(b)(i)” of the LRA.
11. On the limited evidence available, and relying particularly on the applicant’s
evidence that the CCMA was twice informed that the council had jurisdiction to
determine the dispute, I am persuaded on the probabilities that the Commission
opted to assume jurisdiction and appointed the commissioner to resolve the
dispute. Since the third respondent, unlike the applicant, was not a party to the
council, the assumption of jurisdiction was proper and in accordance with the
preconditions stipulated in the subsection. The fact that the appointed
commissioner, without the benefit of any argument on the point, did not record
the basis of his jurisdiction, is neither here nor there. The authority to appoint the
commissioner vested in the Commission, acting through the Director or any other
official to which the power might have been lawfully delegated. Once the CCMA
was informed of the council’s jurisdiction it seems likely in the circumstances that
it elected to proceed, as it was entitled to do, under section 147(3)(a). Such a
finding is in keeping with the spirit of the general canon of construction: verba ita
sunt intellegenda ut res magis valeat quam pereat and the evidential
presumption of validity expressed by the maxim omnia praesumuntur rite esse
acta, both of which are fortified in this instance by the legislative injunction in
section 1 calling on functionaries, including judges, when applying the LRA to
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promote the effective resolution of labour disputes. In the premises the
applicant’s challenge to jurisdiction must be dismissed.
12. The applicant’s other grounds of review relate to the justifiability of the award.
On the matter of substantive fairness, the applicant seizes on the following
comment made by the second respondent in the award:
“The onus was then on the absent employee to prove the dismissal was for a fair reason
related to the employee’s conduct or capacity or based on the employer’s operational
requirements the respondent could not prove these facts because it was not in
attendance and dismissal should, on this basis alone, be found to have been
substantively unfair”.
14. The applicant legitimately maintained that the mere fact that it was not
present at the hearing did not justify a finding of substantive unfairness. This may
be so, but it is apparent from both the record and other paragraphs of the award
that the commissioner did consider and weigh the uncontested evidence of the
third respondent. In particular, he noted the nature of the allegations against the
third respondent, that she disputed them and that there was no evidence to
contradict her direct evidence that Dr Langenhoven’s wife had been impatient,
had tried to jump the queue and was in a very bad mood. It is also apparent from
his questioning of the third respondent that the commissioner implicitly accepted
that the third respondent had called her supervisor to attempt fix the faulty
machine, but that before he could do so Langenhoven had become rude and had
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shouted at her. Nowhere in its papers filed in the review proceedings does the
applicant contest the third respondent’s version, nor was any other version
available to the commissioner when making his decision. Hence, on the basis of
the third respondent’s denial of having been rude to the customer and her
explanation of what had transpired, the commissioner was justified in reaching
the conclusion that there was no fair reason for the dismissal.
15. I am similarly persuaded that the commissioner’s finding that the third
respondent did not enjoy the benefit of the audi alteram partem principle was not
beyond the bounds of rationality or justifiability. The applicant has failed to file a
replying affidavit contesting the third respondent’s averment that it relied
exclusively on the letter of complaint. While it is correct that employers should be
granted same leeway in applying the audi principle flexibly to their peculiar
circumstances, mere reliance on a letter of complaint from an agitated customer,
who may have had an axe to grind, will of itself usually not be enough to justify a
summary dismissal of an employee with a clean disciplinary record. Ideally,
before a dismissal can follow, the employee should be given an opportunity to
hear the complaint against her and be afforded the right to challenge the
complainant’s version in the presence of the complainant. Alternatively, and at
the very least, the employer should have adduced evidence tending to
corroborate the allegations made in the letter of complaint. Accordingly, the
commissioner’s finding that reliance on the letter led to a dismissal, which was
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both substantively and procedurally unfair, cannot be faulted as irrational or
unjustifiable.
16. There is therefore no basis to set aside the award and there is no reason why
costs should not follow the result. In the premises I make the following orders:
1. The application is dismissed.
2. The applicant is ordered to pay the third respondent R21900,
together with interest at the rate prescribed in the Prescribed Rate of
Interest Act from 24 May 2002 until the date of payment.
3. The applicant is to pay the third respondent’s costs.
MURPHY AJ
DATE OF HEARING: 2 DECEMBER 2004
DATE OF JUDGMENT: 19 JANUARY 2005
APPLICANT’S REPRESENTATIVE: Adv Stylianou instructed by KOKKORIS
ATTORNEYS.
RESPONDENT’S REPRESENTATIVE: Adv J. van der Schyff instructed by N.
ALLEN ATTORNEYS.
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