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[2015] ZACC 40
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Toyota SA Motors (Pty) Ltd v CCMA and Others (CCT228/14) [2015] ZACC 40; (2016) 37 ILJ 313 (CC); [2016] 3 BLLR 217 (CC); 2016 (3) BCLR 374 (CC) (15 December 2015)
Heads of arguments
CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
228/14
In the matter
between:
TOYOTA SA MOTORS
(PTY)
LIMITED
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER:
TERRENCE
SERERO
Second
Respondent
RETAIL
AND ALLIED WORKERS
UNION
Third
Respondent
MAKOMA
MAKHOTLA
Fourth
Respondent
Neutral citation:
Toyota SA Motors
(Pty) Ltd v CCMA and Others
[2015] ZACC 40
Coram:
Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga J,
Matojane AJ, Nkabinde J, Van der Westhuizen J, Wallis AJ
and Zondo J
Judgments:
Nkabinde J (majority): [1] to [53]
Zondo J (minority): [54] to [190]
Wallis AJ (concurrence): [191] to [209]
Heard on:
18 August 2015
Decided on:
15 December 2015
Summary:
Review of arbitration award — application to dismiss —
protracted delay in prosecution of review
ORDER
On appeal from the
Labour Court of South Africa, Johannesburg:
1.
Condonation for the late
filing of the statement of facts is granted.
2.
Leave to appeal is refused
with costs.
JUDGMENT
NKABINDE J
(Mogoeng CJ, Moseneke DCJ, Cameron J, Jafta J, Khampepe J, Madlanga
J, Matojane AJ, Van der Westhuizen J and Wallis AJ
concurring):
Introduction
[1] Time
periods in the context of labour disputes are generally essential to
bring about timely resolution of the disputes.
The dispute
resolution dispensation of the old Labour Relations Act
[1]
was uncertain, costly, inefficient and ineffective. The new
Labour Relations Act
[2]
(LRA) introduced a new approach to the adjudication of labour
disputes. This alternative process was intended to bring about
the expeditious resolution of labour disputes which, by their nature,
require speedy resolution. Any delay in the resolution
of
labour disputes undermines the primary object of the LRA. It is
detrimental not only to the workers who may be without
a source of
income pending the resolution of the dispute but, ultimately, also to
an employer who may have to reinstate workers
after many years.
[2] This
application for leave to appeal is against a decision of the Labour
Court of South Africa, Johannesburg dismissing
with costs, the
applicant’s application for review and making an arbitration
award against the applicant an order of Court.
[3]
At its heartland is whether the Labour Court was correct when it
dismissed the review application on the basis of delay.
The
Labour Court refused the applicant leave to appeal, as did the Labour
Appeal Court, hence this application. The applicant
also seeks
condonation for the late filing of its statement of facts.
Parties
[3] The
applicant is Toyota SA Motors (Pty) Limited (Toyota). The first
respondent is the Commission for Conciliation,
Mediation and
Arbitration (CCMA). The second respondent is the commissioner
of the CCMA (arbitrator) who arbitrated the dispute
of unfair
dismissal between Toyota and the fourth respondent (Mr Makhotla).
The third respondent is the Retail and Allied
Workers Union (Union)
of which Mr Makhotla is a member. The CCMA and the
arbitrator have not opposed this application.
Mr Makhotla and
the Union have opposed the application. To the extent necessary
I refer to them, collectively, as the respondents.
Factual
background
[4] Toyota
employed Mr Makhotla in 2006. During the course of his
employment, Mr Makhotla failed to report for duty
from 28 February to
3 March 2011. Mr Makhotla unsuccessfully attempted to
locate his supervisor, Ms Mukhavhuli, on her
mobile phone on 28
February 2011 when it became evident that he would be unable to
report for duty. He contacted one of the
senior managers,
Mr Hawkins, within his division and reported to him. He
also sent a short message service (SMS) to
Ms Mukhavhuli,
indicating that it would take him three days to address the issues
that caused his absence from work.
Receipt of the SMS was
acknowledged by Ms Mukhavhuli.
[5] When Mr
Makhotla returned to work on 4 March 2011, Toyota served him with a
notice to attend a disciplinary enquiry in
terms of Toyota’s
Disciplinary Code and Procedures (Code).
[4]
Three days later, on 7 March 2011, Mr Makhotla tendered notice of
resignation with effect from 31 March 2011.
[5]
He was informed that notwithstanding his resignation, he would be
disciplined.
Ms Mukhavhuli testified that
she referred the resignation to Human Resources and the Vice
President of Toyota. They refused
to accept the resignation.
Mr Makhotla was charged in terms of the Code with misconduct
for being absent from work without leave (AWOL) for four days without
advising Toyota of his whereabouts and providing an acceptable
reason. The disciplinary hearing was finally held on 24 March
2011. Mr Makhotla was dismissed on that date.
[6]
Litigation
history
CCMA
[6] On 21
April 2011, Mr Makhotla referred an alleged unfair dismissal dispute
to the CCMA for conciliation. When the
dispute could not be
resolved he requested that it be referred to arbitration. The
arbitration took place on 1 September
2011.
[7] Toyota led
witnesses with a view to establishing that Mr Makhotla was absent
without leave and without providing an acceptable
or reasonable
explanation for his absence.
[7]
The testimony covered: his communication with Mr Hawkins, during
which he said that he was absent because he was not
feeling well; his
SMS to Ms Mukhavhuli saying he was in the Drakensberg “clearing
his head”; and his explanation
for the absence, on his return
to work, that he had to rescue a girl from an initiation school to
which she had been abducted.
In addition, Ms Mukhavhuli
testified that she had obtained some queries about Mr Makhotla’s
failure to attend certain training
sessions and that it was always
difficult to establish his whereabouts. Mr Makhotla was,
according to Toyota, aware of the
rule on absenteeism.
[8] On the
whole, Mr Makhotla’s testimony echoed that of Toyota’s
witnesses. He testified that on his return
to work he
approached Ms Mukhavhuli to apologise and she accepted the apology.
He said that he was dismayed at Toyota’s
decision to summon him
to a disciplinary enquiry and tendered his resignation out of anger.
[9] The
arbitrator found that it was common cause that the applicant was
absent from 28 February to 3 March 2011. The
bone of
contention, he said, was “whether [Mr Makhotla] had obtained
any permission for his absence (AWOL) and whether he
provided a
plausible explanation for same”.
[8]
The arbitrator observed that absence without leave for four
days and failure to provide acceptable reasons constituted, in
terms
of Toyota’s Code, a dismissible offence.
[9]
[10] In determining
the issues the arbitrator remarked:
“The evidence
indicates that [Mr Makhotla] phoned Mr Hawkins and also later
forwarded a text message to his immediate superior.
Therefore,
on the second day of his absence [Toyota] was aware of [Mr
Makhotla’s] whereabouts. If indeed his
continued absence
was viewed as an offence his immediate superior ought to have
rejected his apology and instructed him to return
to work
immediately. In actual fact a proper reading of the company’s
disciplinary code indicates that on the third
day of an employee’s
AWOL the company must despatch a telegram or registered letter
enquiring about his whereabouts . . .
. Perhaps this was not
done because [Toyota] was aware of [Mr Makhotla’s] whereabouts.
Further, even if one
was to find that [Mr Makhotla’s] explanation for his five days
absence was not plausible the dismissal
was unwarranted. There
is no evidence of habitual absenteeism. Put differently [Mr
Makhotla] does not have a dismal
disciplinary record in this regard.
It is trite that if an employee is unable to account for [his]
absence the respondent’s
recourse is to ensure that he is not
paid for the period of his unauthorised absence or leave (See section
23(1) of the Basic Conditions
of Employment Act [75] of 1997).”
[11] The arbitrator
concluded that the dismissal was substantively unfair.
[10]
He ordered Toyota to reinstate Mr Makhotla and to pay him six months’
salary amounting to R218 400.
[11]
Labour Court and
Labour Appeal Court
[12] On 19 October
2011 Toyota launched a review application in terms of section 145
of the LRA,
[12]
seeking an order setting aside the award and replacing it with an
order that the dismissal of Mr Makhotla was both procedurally
and
substantively fair. This application was lodged within the six
week period required by the LRA.
[13]
Toyota took issue with (a) the fact that the arbitrator prevented it
from cross-examining Mr Makhotla as to the true nature
of his
whereabouts during his absence; (b) the findings of the arbitrator
that there was no evidence of habitual absenteeism and
that the
dismissal was substantively unfair and the award for reinstatement
payment of six months’ salary (back pay).
[13] Toyota sought
to review the award on grounds that the arbitrator—
(a) did not deal with the fact that Mr Makhotla gave contradictory
versions for his absence;
(b) disregarded the impact Mr Makhotla’s dishonesty had;
(c) prevented it from cross-examining Mr Makhotla on this issue; and
(d) imposed an “additional criterion” into its
disciplinary code by making it necessary to show habitual absenteeism
to justify dismissal.
[14] It is common
cause that the CCMA failed to deliver a complete recording of the
arbitration proceedings to the Registrar of
the Labour Court when it
delivered the record in terms of rule 7A of the Labour Court
Rules.
[14]
Only one compact disc covering merely 20 minutes of the proceedings
was delivered to the Registrar of that Court. Toyota
wrote to
the CCMA and asked about the balance of the record including other
discs. The CCMA did not proffer an explanation
for the absence
of a complete record of the arbitration proceedings.
[15]
It is undisputed that the parties met on 28 November 2012 to
try to reconstruct the record. Consequently, pursuant to an
agreement
between them, their notes were transcribed.
Between
18 November 2011 – when the CCMA delivered the record, and 31
January 2013 – when Toyota’s attorneys sent
typed copies
of the parties notes of the proceedings to the Union, little progress
was made in preparing a complete record of the
arbitration hearing.
Toyota did not comply with rule 7A(8) requiring it to indicate
whether it stood by its original notice
of motion or wished to amend
it.
[16] It is not clear
when Toyota received the arbitrator’s typed notes.
However, the transcribed notes were available
for collection from the
Labour Court by no later than 23 January 2013. Thereafter no
steps were taken by Toyota until after
a rule 11 (read with rule 7)
application was lodged by the respondents on or about 8 August
2013.
[15]
The respondents sought orders dismissing the review application on
the ground of excessive delay in pursuing the review and
making the
award an order of Court in terms of section 158 of the LRA.
[16]
Notably, this was approximately 22 months after Toyota’s review
application was lodged in the Labour Court.
[17] In its
opposition to the dismissal application Toyota set out the various
steps it took in an attempt to reconstruct the record.
Toyota
contended that it could not finalise the review application on the
documents before the Court because neither legible notes
of the
arbitrator nor a transcribed record were available. It said
that its principal point of review related to the cross-examination
of Mr Makhotla. Toyota argued that the arbitrator’s
hand-written notes would not chronicle whether the arbitrator had
interfered with its cross-examination. It submitted that the
delays were the result of the difficulties it had reconstructing
the
record and that it had not abandoned its review.
[18] The Labour
Court remarked about Toyota’s “inordinate delay in
prosecuting the review”.
[17]
Given that Toyota had “[done] nothing for 18 months”
to prosecute the review, the Court took a “robust
approach”.
[18]
It dismissed the review application on the basis of the delay, made
the award an order of Court and ordered Toyota to pay
Mr Makhotla’s
costs. The Labour Court subsequently dismissed Toyota’s
application for leave to appeal and
so did the Labour Appeal
Court.
[19]
In this Court
[19] Toyota seeks
leave to appeal against the decision of the Labour Court dismissing
its review application and making the award
an order of Court.
It contends that the application involves matters of general public
importance
[20]
and implicates its rights to fair labour practices,
[21]
administrative justice
[22]
and access to courts.
[23]
Toyota argues that the Labour Court was wrong to hold that it
had done nothing for 18 months to prosecute its review.
It
sets out various steps it took to reconstruct the record.
[20] Toyota further
takes issue with the Labour Court’s conclusions that there was
an obligation on the litigants to take
notes of the arbitration
proceedings, and that it had no prospects of success in the review.
In this regard it contends that,
given that Mr Makhotla had resigned,
it was obvious that the award of reinstatement was incompetent and
thus the Court ought not
to have made the award an order of Court.
Toyota submits that it has prospects of success in the review because
of Mr Makhotla’s
three versions for his absence. It
argues that the “prospects of succeeding on review on the basis
that the [a]rbitrator’s
decision was not one which a reasonable
decision maker could make,
were patent from the available
record
”.
[24]
[21] According to
Toyota, there are competing interpretations of rule 7A of the Labour
Court Rules with regard to the rights and
remedies available to
litigants who are alleged not to have prosecuted their review
timeously.
[25]
This is said to be the case also where a litigant cannot
properly bring a review due to the failure of the CCMA to keep an
adequate recording of arbitration proceedings. Toyota submits
that these are matters of general public importance and that
the
interests of justice warrant this Court determining them.
[22] Mr Makhotla
supports the Labour Court’s decision. He contends that,
because of the prolonged delay, Toyota had
abandoned the review
application. Mr Makhotla says that for a period of almost two
years from launching the review, Toyota
used delaying tactics to
frustrate him. He argues that Toyota failed to give an adequate
explanation for the delay and take
steps in terms of the Labour Court
Rules and the Practice Manual of the Labour Court of South Africa
(Practice Manual).
Directions
[23] In directions
issued by the Chief Justice on 18 February 2015, the parties were
directed to provide short written submissions
to this Court on—
(a) whether an order for reinstatement is competent when an employee
has resigned prior to the grant of that order;
(b) whether the dismissal of the review, on the basis that the record
of the arbitration proceedings is incomplete, is a denial
of Toyota’s
right to fair administrative justice;
(c) who bears the onus/obligation to produce a proper and complete
record in anticipation of the prosecution of review proceedings;
and
(d) what are the consequences in review proceedings when the
arbitrator or the parties to the dispute are unable to produce a
proper and complete record?
Leave to appeal
[24] The first
question for determination is whether leave to appeal should be
granted. There can be no doubt that this Court
has jurisdiction
over this matter because it concerns, among other things, the right
to fair labour practices in terms of section
23 of the
Constitution.
[26]
Nonetheless, this Court retains the discretion whether to grant leave
to appeal. Whether it is in the interests of
justice for leave
to appeal to be granted depends on a careful weighing up of relevant
considerations. Chief of these, although
not decisive, is
whether there are prospects of success.
[27]
Differently put, one has to make an assessment of Toyota’s
prospects of success as one of the factors relevant to the
proper
exercise of the Court’s discretion. The question arises
whether the Labour Court was wrong in dismissing the
review
application on the basis of an inordinate delay in pursuing the
review.
Delay
[25] The application
to dismiss Toyota’s review in the Labour Court was launched in
terms of rules 11 and 7 of the Labour
Court Rules. These rules
deal with interlocutory applications and procedures not specifically
provided for in the other rules
and reviews, respectively. In
relevant part, rule 11 reads:
“(1)
The following applications must be brought on notice, supported by
affidavit:
(a) Interlocutory
applications; [and]
(b) [O]ther applications
incidental to, or pending, proceedings referred to
in these rules that are not specifically provided for in the rules .
. . .
. . .
(4) In the exercise of its
power and in the performance of its functions, or in any incidental
matter,
the court may act in a manner that it considers expedient
in the circumstances to achieve the object of the [LRA]
.”
(Emphasis added.)
[26] As to what
Toyota’s obligations were concerning the record in its review
application, rule 7A(5) obliged it to make copies
of the record or
portions of the record “necessary for the purposes of the
review” and sub-rule (6) required it to
furnish the “record
or portion of the record” to the registrar and the other
parties. Further, sub-rule (8) provides:
“
The
applicant must within 10 days after the registrar has made the record
available either—
(a)
by delivery of a notice
and accompanying affidavit, amend, add to or vary the terms of the
notice of motion and supplement the supporting
affidavit;
or
(b)
deliver a notice that the
applicant stands by its notice of motion.”
[27] Sub-rule (9)
required the respondents to file answering affidavits once in receipt
of the notice contemplated in sub-rule (8).
[28]
On 12 March 2012, after being put under
pressure by the Union, Toyota provided the same documents as had been
given to it by the
registrar from the CCMA, but without a transcript
of the arbitrator’s handwritten notes. It made a further
attempt
to comply with rule 7A(6) on 27 August 2013 after the
dismissal application had been brought.
[29] In dealing with
the question of delay, the Labour Court said the following:
“During 2012, it became apparent that there were problems with
the record ‒ not all of the evidence had been properly
recorded
or could be transcribed. After many months of delay, Toyota
finally convened a reconstruction meeting. Certain
steps were
taken after that to have notes of the various representatives and the
arbitrator typed up, but by early 2013, it became
apparent that the
record was very poor and that there was no further steps to be taken
in reconstructing the record. This
was certainly the view that
Toyota took of the matter at the time.
It is worth noting that the notes kept by the representatives are
also fairly sparse and this, no doubt, contributed to the
difficulties
of reconstructing the record. Blame for this
cannot be assigned to the arbitrator. Be that as it may, by
January or
February 2013, Toyota took the view that it had done all
it reasonably could to reconstruct the record and the record, as it
was,
was not sufficient to pursue the review. Toyota then did
nothing further in the review, until several months later, [the
Union] launched an application to dismiss the review application.
Toyota then responded by opposing the application, and in
the
review itself, by filing the record and (a few days ago) by filing a
Notice in terms of Rule 7A(8).
. . .
The Labour Relations Act, case law and the practice manual makes it
quite clear that expeditious resolution of labour disputes
is a
fundamental requirement of fairness and of the Act itself. An
applicant who does nothing for 18 months in prosecuting
a review,
should not be surprised when a court takes a robust approach and
dismisses the review on the grounds of delay.”
[28]
[30] In determining
the correctness or otherwise of the remarks by the Labour Court,
it is necessary to set out the sequence
of the steps that Toyota took
from the date of the arbitration award until the launching of the
dismissal application. The
sequence follows:
·
19
September 2011 The arbitrator made the award.
·
19
October 2011 Toyota launched the application for the review of
the award.
·
18 November 2011
The CCMA delivered an incomplete recording of the record of
arbitration proceedings to the Labour Court.
·
30
November 2011 Toyota instructed its correspondent attorneys to
uplift the record.
·
24
January 2012 Toyota followed up on the instruction to its
correspondent attorneys.
·
There
is an unexplained delay of two months from 30 November 2011 to 24
January 2012. The delay is over the Christmas period.
However, according to rule 7A(8) of the Labour Court Rules, Toyota
had 10 days from the date the registrar made the record available
to
give notice of an amendment, variation of, or addition to its notice
of motion or to abide by its existing notice of motion.
Toyota
did not give the notice. Toyota had not even given the initial
instruction to its correspondents to uplift the record
eight court
days into this period.
·
The
correspondent uplifted the record on 27 January 2012 and sent it to
Toyota.
·
2
February 2012 Toyota received the record from its
correspondent attorneys. By this date Toyota should have become
aware of the absence of a full recording of the arbitration
proceedings and initiated steps to reconstruct the record.
·
3
February 2012 Toyota’s attorneys sent a letter to the
Union advising that they had received the record, had requested
their
transcribers to attend to the transcription and would be serving and
filing in terms of rule 7A(6) shortly.
·
29
February 2012 Toyota instructed the correspondent attorneys to
uplift the arbitrator’s handwritten
notes
.
·
6
March 2012 Toyota sent the arbitrator’s handwritten
notes for transcription.
·
12
March and 19 March 2012 Toyota delivered the record (without
any transcript of the arbitration hearing) in terms of rule
7A(6).
The Union requested that the outstanding transcribed record be
delivered and Toyota responded explaining that the
recording was
incomplete and saying that it had sent the arbitrator’s notes
for transcription.
·
7 June
2012 Toyota received a letter from the CCMA advising that they
could not locate any further recordings. The
CCMA offered to
set the matter down for reconstruction.
·
20
June 2012 Toyota received correspondence from the transcribers
advising that approximately 70% of the handwritten notes
were
illegible and that they would attempt finalising them.
·
27
July 2012 Toyota addressed correspondence to their
transcribers following up with regards to the handwritten notes.
There
was no response.
·
23
August 2012 Toyota forwarded further correspondence to their
transcribers regarding the handwritten notes.
·
23
August 2012 Toyota informed the CCMA that the arbitrator’s
handwritten notes were illegible and asked the CCMA to
arrange a
reconstruction meeting. There is no explanation why it took so
long to take up the CCMA’s offer. As
it is, the CCMA
never responded and Toyota never followed up.
·
5
October 2012
Toyota’s attorneys wrote
to the Union suggesting that the parties agree to the remittal of the
arbitration to the CCMA for
rehearing.
·
22
October 2012
Toyota wrote to the
Union and requested an update on the record.
·
9
November 2012
The Union, having only
received Toyota’s 5 October 2012 letter on 6 November
2012, rejected the suggested remittal and
demanded that a meeting be
held to reconstruct the record of the hearing.
·
28
November 2012 A meeting to reconstruct the record was held
between the parties. There is no explanation why it took
so
long to do so.
·
23
January 2013 The arbitrator’s transcribed handwritten
notes were filed and ready for collection.
·
29
January 2013 Toyota’s attorneys informed the Union that
the notes were available and that they had instructed their
correspondents to uplift them. They further stated that the
transcription of the parties’ handwritten notes was almost
complete.
·
31
January 2013 Reconstruction of the record was completed and
Toyota transmitted the transcribed notes of the parties (but
not of
the arbitrator) to the Union requesting confirmation of the
correctness of the transcription. Toyota said it would
revert
once it had obtained the arbitrator’s handwritten notes from
its correspondents. However, Toyota never reverted.
·
8
August 2013 The respondents lodged the application to dismiss
the review in terms of rules 11 and 7.
[31] When the
application for dismissal was lodged Toyota had not delivered the
notice amending and varying its existing notice
together with
supplementary affidavits, if any, as required by rule 7A(8).
These papers should have been delivered by 2 December
2011.
Notably, the notice and affidavit dated 4 July 2014, purportedly in
terms of that rule, were only served on the respondents
and filed by
handing them up in Court at the hearing of the dismissal application
on 9 July 2014.
[29]
No attempt seems to have been made to serve and file the affidavit
before the hearing, despite its finalisation five days
earlier.
[32] In that
affidavit Toyota, for the first time and after a prolonged delay,
asked the Labour Court to “provide direction
as to how the
matter should proceed” and to refer the matter back to the CCMA
for consideration before a new commissioner.
[33] I have read the
judgment of my Colleague, Zondo J. He is of the view that the
respondents should have delivered answering
affidavits. When
regard is had to what is stated in [31] and [32] above, Mr Makhotla
would have been required, in terms of
rule 7A(8), to file the
answering affidavit barely by 23 July 2014. Unsurprisingly, by
this date the Labour Court had delivered
its decision on the
dismissal application.
[34] Toyota did not
challenge the proposition that the Labour Court had the power to
dismiss its review application if it unreasonably
delayed in pursuing
the review. It needs to be stressed that when assessing the
reasonableness of a delay, sight must not
be lost of the purpose of
the LRA.
[30]
This purpose was articulated by Ngcobo J in
CUSA
:
“The LRA introduces a simple, quick, cheap and informal
approach to the adjudication of labour disputes. This
alternative
process is intended to bring about the expeditious
resolution of labour disputes. These disputes, by their very
nature, require
speedy resolution. Any delay in resolving a
labour dispute could be detrimental not only to the workers who may
be without
a source of income pending the resolution of the dispute,
but it may, in the long run, have a detrimental effect on an employer
who may have to reinstate workers after a number of years. The
benefit of arbitration over court adjudication has been shown
in a
number of international studies.”
[31]
(Footnotes omitted.)
[35] This Court went
on to elaborate:
“The absence of appeal from arbitral awards was intended to
speed up the process of resolving labour disputes and free it
from
the legalism that accompanies other formal judicial proceedings.
By adopting this simple, quick, cheap and informal
approach to the
adjudication of labour disputes, Parliament intended that, as far as
it is possible, arbitral awards should be
final and should only be
interfered with in very limited circumstances. In order to give
effect to these objectives, Parliament
deliberately decided against
appeals from arbitral awards and opted for the narrowest species of
review, namely that specified
in section 145 of the LRA.
Consistent with the objectives of the LRA, commissioners are required
to ‘deal with the substantial merits of the dispute
with the
minimum of legal formalities’. This requires
commissioners to deal with the substance of a dispute between
the
parties. They must cut through all the claims and
counter-claims and reach for the real dispute between the parties.
In order to perform this task effectively, commissioners must be
allowed a significant measure of latitude in the performance of
their
functions. Thus the LRA permits commissioners to ‘conduct
the arbitration in a manner that the commissioner considers
appropriate’. But, in doing so, commissioners must be
guided by at least three considerations. The first is that
they
must resolve the real dispute between the parties. Second, they
must do so expeditiously. And . . . they must
act fairly to all
the parties as the LRA enjoins them to do.”
[32]
(Footnotes omitted.)
[36]
From the sequence of steps set out above
,
[33]
it is plain that in 22 months Toyota did very little to prosecute the
review. The delay is wholly excessive. There
is no
explanation for the delays between 30 November 2011 and 24 January
2012, and 19 March and 23 August 2012. The
approach to
procuring a full record of the hearing was not diligent, the
prosecution of the review was not expeditiously pursued
and the
explanation for the delays is not reasonable.
[37] Toyota ought to
have initiated steps to reconstruct the record as early as 2 February
2012, when it received an incomplete
record from its correspondent
attorneys. It did not. Instead, it sat back until March
2012 when it delivered the incomplete
record. The respondents
had requested that the outstanding transcribed record be delivered.
Toyota replied to the respondent
alleging incompleteness of recorded
proceedings and informed the Union that it was “being
pro-active in having the handwritten
notes transcribed”.
Unacceptably, without any sense of the need to act expeditiously,
Toyota only followed up with
its transcribers thereafter twice in a
period of five months as to what progress was being made in the
transcription.
[38] What is more,
for the period of approximately seven months, between March and
October 2012, the respondents were left in the
dark about the status
of the record. During that period Toyota did not communicate
with the respondents, while it communicated
with the transcribers and
the CCMA. This could not have been insignificant for the
respondents. It explains why the
respondents, obviously having
been at the receiving end, felt the effect of the delay, took the
initiative and requested a meeting
with a view to reconstruct the
record. Yet again, Toyota persisted with its dilatory tactics
and proposed a hearing
de novo
(anew). This is not
consistent with a reviewing party that is eager to expedite the
resolution of the dispute. The
further immediate rejection by
the respondents of the suggested rehearing, and their proposal of
reconstruction of the record and
a reconstruction meeting is also
telling.
[39] I have dealt,
above, with the delay from the date of launching the review, October
2011, until about February 2013. Another
hurdle of an added
inordinate delay that Toyota had to surmount, which remains
unexplained, relates to the period between about
February and August
2013. It is common cause that the transcription of the
arbitrator’s notes was done on 22 January
2013 and the
transcribed notes were subsequently filed by the CCMA with the
Registrar of the Labour Court on 23 January 2013.
These notes were made available to Toyota on or about
29 January 2013. Despite all of this, Toyota only
delivered
the reconstructed record on 27 August 2013 –
some seven months later. This was after Mr Makhotla’s
application to dismiss the review and make the award an order of
Court was lodged.
[40] It is correct
that Toyota delivered the representative’s notes to the
respondents by the end of January 2013 and requested
them to peruse
the notes and indicate whether they accepted them. It is also
true that the respondents did not respond.
In my view, the
respondents’ reticence does not detract from the fact that
Toyota, as
dominus litis
(litigant in charge of the suit),
could still have taken appropriate steps to prosecute the review.
For example, it could
have approached the Court for a direction on
the further conduct of the review application if it really intended
to pursue it.
[34]
This is fortified by the fact that, when Toyota handed up its
supplementary affidavit in Court on 9 July 2014, it asked
the
Labour Court, for the first time, to give that direction.
[41] In any event,
that failure to communicate cannot, in itself, be a reason to come to
the assistance of Toyota, and be used to
countenance its dilatoriness
in the conduct of the litigation. Interestingly, in certain
cases, this Court has refused to
come to the rescue of litigants who
had delayed for a period far less than the delay in this case.
[35]
[42] The delay
between the end of January and August 2013 was excessive and no
explanation, at all, is given for the seven months’
delay.
It not only demonstrates an obvious lack of attention to matters that
plainly called for explanation, but also evidences
a failure by
Toyota to take this Court into its confidence. It is not
surprising that Mr Makhotla approached the Labour Court
for an order
dismissing the review application and making the award an order of
Court.
[43] Toyota, as the
party seeking review, had an obligation, when it became apparent that
there were difficulties with the record,
to have initiated steps
towards reconstruction. In
Lifecare
the Labour Appeal
Court had occasion to determine how the reconstruction of the record
should be undertaken by a party whose obligation
it is to do so.
[36]
The Court said the following:
“A reconstruction of a record (or part thereof) is usually
undertaken in the following way. The tribunal (in this case
the
commissioner) and the representatives . . . come together, bringing
their extant notes and such other documentation as may
be relevant.
They then endeavour, to the best of their ability and
recollection to reconstruct as full and accurate a record
of the
proceedings as the circumstances allow. This is then placed
before the relevant court with such reservations as the
participants
may wish to note. Whether the product of their endeavour is
adequate for the purpose of the appeal or review
is for the court
hearing same to decide, after listening to argument in the event of a
dispute as to the accuracy or completeness.
. . .
When it appeared that there were difficulties with regard to the
record, it was the obligation of Lifecare, as the reviewing party,
to
initiate the enquiries and steps which have been set forth in this
judgment. It should not have been left to the Labour
Court at
first instance, and to this Court on appeal, to resolve problems
which were other than residual or intractable.”
[37]
[44] These remarks
apply with equal force here. Moreover, the Labour Court’s
Practice Manual, although it came into
effect in April 2013, enjoined
Toyota to approach the Judge President for a direction on the further
conduct of the review application,
if the record of the proceedings
under review had been lost, or if the recording of the proceedings
was of poor quality.
According to the Practice Manual, the
Judge President would then allocate the file to a Judge for a
direction, which might include
the remission of the matter to the
person or body whose award is under review, or where practicable, a
direction to the effect
that the relevant parts of the record be
reconstructed.
[38]
Whilst the Practice Manual came into effect part-way through
the litigation, Toyota failed to make use of it. By April
2013,
anyway, Toyota had proposed a hearing
de novo
and held the
view that the reconstructed record, as it was, was not sufficient to
pursue the review application.
[45] Excessive
delays in litigation may induce a reasonable belief, especially on
the part of a successful litigant, that the order
or award had become
unassailable.
[39]
This is so all the more in labour disputes. Mr Makhotla
was entitled to approach the Labour Court for the relief
he
sought in order to have closure and get on with his life.
[46] Toyota failed
to discharge its obligation as envisaged by the Labour Appeal Court
in
Lifecare
and by the LRA. The Labour Court cannot thus
be faulted for having dismissed the review application on the basis
of the inordinate
delay, some part of which is not reasonably
explained and another part wholly unexplained. The Court,
enjoined under rule
11,
[40]
acted in a manner it considered expedient in the circumstances to
achieve the object of the LRA. To criticise it and grant
leave
to appeal as my colleague, Zondo J does, especially in the
circumstances of this case, would not only undermine the object
of
the LRA regarding the expeditious and effective resolution of labour
disputes, but would also not be in the interests of justice.
[47] The application
for leave to appeal should thus be dismissed on the basis of the
excessive delay, alone.
[48] In any event,
there is no merit in Toyota’s original grounds of review.
[41]
For our purposes, I focus on the point Toyota referred to in
the minutes of the reconstruction meeting as the “principal
point of review”, namely that its representative was prevented
from cross-examining Mr Makhotla as to the three reasons provided
for
his absence. Both the written argument submitted by Toyota to
the arbitrator and the reconstructed record show that the
converse is
true. This is borne out by what appears in the reconstructed
record:
“CROSS-EXAM
Q – Absent Monday – Tues send message going [to]
Drakensburg
A – Yes, Tues morning
Q – But she only got same at night
A – Correct
Q – So prev stat incorrect [previous statement incorrect]
A – Tues, evening
Q – Tues, still clear your mind
A – [P]rocess rescuing the girls still conti [continuing] till
Thursday
Q – So not going to ----clear you head
A – Yes, could not be specific on SMS
Q – But acc [according] to co witness said in your call said
not feeling well
A – Not correct
Q – [S]o 3 exp [explanations] for absence – so don’t
know why absent – so lies
A – Not correct – your opinion
. . . .”
[49] There is
another matter. Toyota raised a new point before this Court.
It said that Mr Makhotla’s notice of
resignation precluded the
arbitrator from making an order of reinstatement, because his
contract of employment would, in any event,
have come to an end on 31
March 2011. The point was not raised at any previous stage,
whether before the arbitrator or the
Labour Court. It would be
unfair to Mr Makhotla if Toyota were to be permitted to raise the
point for the first time at this
stage. Needless to say, it was
not a point that the Labour Court ought to have taken into account in
its consideration of
Toyota’s prospects of success as it was
not raised before it. My colleague, Zondo J, is of the view
that if the arbitration
award is allowed to stand Toyota may end up
paying Mr Makhotla around R2 million or even more, and that this
would be unjust.
[42]
I do not think this is correct. The arbitrator expressly
limited the payment of back-pay to six months’ salary
in the
amount of R218 400.
[43]
There is no reason why Toyota would be required to pay any more than
this.
[50] Having
concluded that the Labour Court was correct in dismissing the review
application on the basis of the excessive delay
and that there was no
merit on the said two grounds of review, it is not necessary to deal
with the further grounds of review.
The application falls to be
dismissed.
Condonation
[51] Toyota also
seeks condonation for the late filing of its statement of facts,
which was delayed by two days. The application
is not opposed
and respondents are not prejudiced. The explanation is
acceptable. Condonation should be granted.
Costs
[52] Toyota seeks
costs in the appeal despite its dilatory behaviour. This runs
counter to the objects of the LRA, namely,
a simple, quick, cheap and
informal approach to the adjudication of labour disputes.
[44]
Toyota’s conduct warrants the granting of costs in favour of
the respondents.
Order
[53] The following
order is made:
1. Condonation for the late filing of the statement of facts is
granted.
2. Leave to appeal is refused with costs.
ZONDO J:
Introduction
[54] This is an
application brought by Toyota SA Motors (Pty) Ltd (Toyota) for leave
to appeal against in effect the judgment and
order of the Labour
Court after the Labour Appeal Court refused it leave to appeal.
The judgment of the Labour Court was
given by Fourie AJ in favour of
the third and fourth respondents. The third and fourth
respondents are, respectively, the
Retail and Allied Workers Union
(union) and Mr Makoma Makhotla (Mr Makhotla), a former employee
of Toyota. The union
and Mr Makhotla brought an
application in the Labour Court in terms of Rules 7 and 11 of the
Rules of the Labour Court.
They sought an order dismissing an
application that Toyota had brought to review and set aside an
arbitration award that had been
issued by the second respondent, a
commissioner of the Commission for Conciliation, Mediation and
Arbitration (CCMA) (Commissioner)
against Toyota and in favour of Mr
Makhotla.
[55] The arbitration
award was given in a dispute between Toyota, on the one hand, and,
the union and Mr Makhotla, on the other,
about the fairness of Mr
Makhotla’s dismissal from Toyota’s employ. The
Commissioner issued his award on 19 September
2011. He
found that Mr Makhotla’s dismissal was substantively unfair and
ordered Toyota to reinstate him and pay him
a back pay of R218 400.
In the award the Commissioner directed Mr Makhotla to report for duty
on 30 September 2011.
The back pay amount represented
the remuneration that the Commissioner believed Mr Makhotla would
have earned from Toyota from
the date of dismissal to the date of his
reinstatement but for the dismissal. That was a period of about
six months.
It is this award that Toyota sought to have
reviewed and set aside.
[56] I have had the
opportunity of reading the judgment prepared by my Colleague,
Nkabinde J (majority judgment). Although
the majority judgment
concludes that this Court has jurisdiction, it concludes that leave
to appeal should be refused. For
reasons that I shall indicate
later, I agree that this Court has jurisdiction but I am unable to
agree that leave to appeal should
be refused. In my view, not
only should leave to appeal be granted but also the appeal should be
upheld.
Background
[57] The majority
judgment has sufficiently set out the facts which gave rise to the
dismissal of Mr Makhotla from Toyota’s
employ. It has
also set out sufficiently the evidence that can be gathered from the
affidavits before the Labour Court and
the incomplete reconstructed
record that was before that court when it made the decision against
which leave to appeal is sought.
I, therefore, do not propose
to set out those facts in this judgment except in so far as they may
be necessary for a proper understanding
of this judgment and my
approach to the issues.
[58] Briefly, the
facts I wish to emphasise are:
(a) Mr Makhotla was employed by Toyota as a manager and had been in
Toyota’s employ for about five years when he was dismissed.
Toyota had a rule that, if an employee was absent from work for four
consecutive days without permission or a valid reason or acceptable
explanation, that would be a dismissible offence. On 28, 29
February, 1 and 2 March 2011 Mr Makhotla was absent from work.
He had not obtained permission to be absent from work ahead of the
first day of his absence nor did he obtain permission at any
stage
thereafter. According to Toyota, on the first day of his
absence he called a manager other than his immediate superior
and
told him that the reason he was not at work was that he was not
feeling well. That manager was Mr Hawkins.
(b) On the second day he sent his immediate superior, Mrs Mukhavhuli
an SMS to the effect that he was alone in the Drakensberg
to “clear”
his “mind”. The SMS read:
“Hi Boss, I’m sorry I’ve just taken sometime (3
days) off just to clear my mind. I’m on Drakensberg
by
myself. Makoma.”
He, thereafter, sent another one that read:
“Sorry Boss. It came unexpectedly it won’t happen
again.”
(c) On his return to work after four days of absence Mr Makhotla said
that he was absent because he had gone to rescue certain
girls from
an initiation process. Toyota took a decision to bring a
disciplinary charge against him. On 7 March 2011
Mr Makhotla
submitted a letter of resignation to Toyota. The letter of
resignation read:
“Dear Mrs Mukhavhuli,
I am writing to formally notify you that I am resigning from my
position as Hino Training Manager & Special Projects with Toyota
Motors South Africa. My last day of employment will be
31st March 2011, as per the responsibilities under terms
of
my employment contract.
I appreciate the opportunities I have been given at Toyota Motors
South Africa and your professional guidance and support.
I wish
you and the company every moment of success in the future.
Thanking you in co-operation.
Regards,
Makoma A.K. Makhotla
Employee Number: 100358.”
(d) Toyota decided to proceed with the disciplinary action against
Mr Makhotla notwithstanding his letter of resignation.
He
was found guilty of misconduct and was dismissed on 24 March 2011.
That was seven days before the expiry of his notice
period when his
resignation would take effect and when he would have left Toyota’s
employment.
Arbitration
[59] After the
conciliation process had failed to produce a resolution of the
dispute, the dispute was arbitrated by the Commissioner
in terms of
the
Labour Relations Act, 1995
[45]
(LRA). Toyota led the evidence of four witnesses. Mr
Makhotla testified in support of his case but did not call any
witness. The Commissioner concluded that he could not say that
the dismissal was fair. He then held that it was fair
and
equitable to order Toyota to reinstate Mr Makhotla. He made an
award in the following terms:
“6.1 The applicant’s dismissal was substantively unfair.
6.2 The respondent (Toyota SA Motors (Pty) Ltd) must reinstate the
applicant (Makhotla Makoma). The applicant must report
for work
on 30 September 2011.
6.3 The respondent must pay the applicant 6 months’ salary
(back pay) amounting to R218 400.00.
6.4 The aforesaid payment must be effected within 14 days for the
date of receipt of this award.
6.5 There is no order as to costs.”
[60] Two features of
the award immediately catch one’s eye. The one is that,
although an award of reinstatement is made,
the reinstatement is not
with retrospective effect. The other is that the Commissioner
awarded Mr Makhotla an amount of R218 400
as back pay or salary
representing six months’ remuneration.
[61] The questions
that arise out of the terms of this award are: What does the award
mean when it says Toyota “must reinstate
[Mr Makhotla]”?
Does the award mean that Toyota has to put Mr Makhotla in the
position in which he was in terms of
his contract of employment when
he was dismissed? Does the award mean that Toyota has to put Mr
Makhotla in the position
in which but for the dismissal, he would
have been in at the time the arbitration award was issued?
These questions arise
as a result of the fact that, when Mr Makhotla
was dismissed, he was serving his notice period for the termination
of contract
of employment and he was due to leave Toyota’s
employ in seven days’ time.
Review
application
[62] Toyota launched
its review application timeously but experienced various difficulties
relating to the record of the arbitration
proceedings. The
difficulties arose out of the fact that the CCMA and the Commissioner
either lost a substantial part of
the electronic recording of the
arbitration proceedings or failed to ensure that the arbitration
proceedings were recorded in their
entirety.
[63] Various
attempts were made to ensure a reconstructed record but, in the end,
the reconstructed record that was lodged was not
complete. The
review application was launched in October 2011. In August 2013
the union and Mr Makhotla launched an
application in the Labour Court
for an order dismissing Toyota’s review application and making
the arbitration award an order
of the Labour Court.
[64] By the time of
the hearing Toyota had delivered its supplementary affidavit in
addition to its founding affidavit and as complete
a record as could
be delivered in the circumstances. Toyota had also indicated
that it was abiding by its notice of motion
in the review application
and had called upon the respondents to deliver answering affidavits
should they wish to oppose the review
application.
[65] The union and
Mr Makhotla pressed ahead with their application for the dismissal of
Toyota’s review application without
delivering answering
affidavits. They contended that Toyota’s review
application should be dismissed because Toyota
had unduly delayed in
delivering a complete record and its review application had poor
prospects of success. The Labour Court,
through Fourie AJ, gave
an
ex tempore
judgment.
[46]
He granted the union’s and Mr Makhotla’s application and
dismissed Toyota’s review application without
adjudicating it
on the merits. The Labour Court also made the arbitration award
its order.
[47]
[66] The Labour
Court dismissed Toyota’s application for leave to appeal to the
Labour Appeal Court on the basis that there
were no reasonable
prospects of success. A petition to the Labour Appeal Court was
also dismissed for the same reason.
Thereafter, Toyota lodged
with this Court an application for leave to appeal.
Jurisdiction
[67] There is no
doubt this matter engages this Court’s jurisdiction. It
concerns the interpretation of the LRA which,
it is trite by now, is
a constitutional issue. The Labour Court dismissed Toyota’s
review application without adjudicating
the merits thereof. The
question whether the Labour Court was correct or justified in doing
so is one of the questions that
arise. Another question that
arises is whether a review court in general and the Labour Court, in
particular, is justified,
in dismissing a review application without
adjudicating it on the merits in a case where the review applicant
launched the review
application timeously and has delivered all its
affidavits and as complete a record as is possible when the review
court hears
the application to have such a review application
dismissed.
[68] Another
question that arises is whether an arbitrator appointed under the LRA
who is assigned the arbitration of a dismissal
dispute arising out of
a dismissal for alleged misconduct may properly determine such a
dispute without deciding whether the employee
was guilty of the
misconduct for which he was dismissed. Put differently, one of
the questions that arise is whether in such
a case an arbitrator may
assume that the employee is guilty of misconduct without so deciding
and then conclude that the dismissal
is unfair because as a sanction
it was unwarranted.
[69] A further
question that arises is whether, in the light of the meaning of the
word “reinstate” and the aim of reinstatement
as
articulated in the judgment of this Court in
Equity Aviation
,
[48]
an employee who would have left the employer’s employ by reason
of resignation at some stage after the dismissal but before
the
arbitration of the dismissal dispute may competently be reinstated.
Another question is whether an award for the payment
of back pay in
such a case is competent.
Leave to appeal
[70] The questions
that arise are important questions. This Court has never
considered them. They affect a significant
section of our
society, workers and employers, trade unions and employers’
organisations. For reasons that will appear
later in this
judgment, I am of the view that there are reasonable prospects of
success. In my view, leave to appeal should
be granted.
The appeal
[71] The majority
judgment reaches its conclusion on the basis that there was only one
ground upon which the Labour Court dismissed
Toyota’s review
application. This is not correct. On my reading of the
Labour Court’s
ex tempore
judgment and the judgment on
leave to appeal, it dismissed Toyota’s review application on
three grounds. They are that:
(a) Toyota did “nothing for almost 18 months to improve the
record” of the arbitration proceedings sought to be reviewed;
it said this in the
ex tempore
judgment but in the
judgment on leave to appeal, it said that Toyota failed to timeously
prosecute its review application.
[49]
(b) Toyota’s review application did not have “excellent”
prospects of success; indeed, the Labour Court said
that Toyota’s
review application had poor prospects of success and there was “no
prospect of quickly supplementing
the record”.
(c) Toyota failed to place an adequate record before the Court.
[50]
[72] The Labour
Court did not accept that its decision was based only on Toyota’s
delay. In its judgment refusing Toyota
leave to appeal,
[51]
it said that there were two primary grounds on which its decision was
based. It put it thus:
“The primary grounds on which the judgment is based are the
failure to place an adequate record before the Court, and the
failure
to prosecute the review application timeously and diligently.”
[52]
The fact that it
said there were two primary grounds means that there could be other
grounds that it did not regard as primary grounds.
[73] The Labour
Court said in effect that, if Toyota had had “excellent
prospects” of success in its review application,
it would not
have been inclined to dismiss Toyota’s review application
without the adjudication of its merits. It said
that it would
have been inclined to put the parties on terms for the further
conduct of the review application. The question
is whether
there was a proper basis for the Labour Court to use “excellent
prospects” in that sentence.
[74] If the Labour
Court used “excellent prospects” as a test, it would have
erred because the norm is that the concept
of reasonable prospects of
success is generally used. However, if it used the concept of
“excellent prospects”
in the sense that they could or
would make up for what it considered a long delay or to make up for
what it may have seen as an
inadequate explanation, that would have
been correct. Unfortunately, the judgment leaves us speculating
as to the sense in
which the Court used the concept of “excellent
prospects”.
[75] One would have
expected the Court to first set out the principles which governed the
application before it. If it had
done so, one would see where
“excellent prospects” featured in those principles.
For purposes of this judgment
I am prepared to say no more than that
the Court’s assessment of Toyota’s prospects of success
played an important
role in the decision.
[76] The Labour
Court said that Toyota’s prospects of success were a relevant
factor even though they were not determinative.
[53]
However, it then went on to say which supports the proposition
that its assessment of the prospects of success weighed
heavily with
it “had the prospects of success been excellent or had
there been a prospect of quickly supplementing
the record, I would
have been inclined to not grant the application at this stage but
perhaps to put the parties on terms as to
the further conduct of the
review application”. In the rest of the paragraph the
Court said that the reconstructed
record was not going to improve,
that Toyota had done nothing for 18 months “to improve the
record” and that “the
prospects of success do not
militate against dismissing the review application on the grounds of
delay”.
Are we at large to
decide the matter as we see it?
[77] Are we at large
to decide this matter on the basis of our own view or are we limited
to interfering in the decision of the
Labour Court only on the
well-known limited grounds applicable to interference with the
exercise of a true or narrow discretion?
In my view we are at
large to decide this case on the basis of our own view because the
Labour Court was not exercising a true
or narrow discretion but it
was exercising the so-called wide discretion.
[78] In
Knox
D’Arcy
the Appellate Division said that the statement that
“a court has a wide discretion seems to mean no more than that
the Court
is entitled to have regard to a number of disparate and
incommensurable features in coming to a decision”.
[54]
In
MWASA
the Court held that the power to determine whether a
dismissal constituted an unfair labour practice fell under the
so called
wide discretion.
[55]
It seems to me that, the power to determine whether there is a good
cause or sufficient cause would also fall under this
category.
The Court said the following about the so-called narrow or true
discretion:
“The essence of a discretion in this narrower sense is that, if
the repository of power follows anyone of the available courses,
he
would be acting within his powers, and his exercise of power could
not be set aside merely because a court would have preferred
him to
have followed a different course among those available to him.”
[56]
This Court’s
judgment in
Trencon
is to the same effect.
[57]
[79] A good example
of a narrow discretion is to be found in the determination of a
sentence by a trial court. That is an
example of the kind of
discretion the exercise of which can only be interfered with on the
well-known limited grounds. In
my view the matter before the
Labour Court was not one in which it had available to it a number of
courses each of which it could
correctly choose. Therefore,
this was not a matter involving the exercise of a true or narrow
discretion. That being
the case, we are at large to decide the
matter on the basis of our own view. However, even if the
Labour Court was exercising
a narrow discretion, we would have been
entitled to interfere with it because that Court misdirected itself
in certain respects.
[80] One of these is
that it overlooked to take into account the issue of prejudice.
Another one is that it overlooked the
fact that Mr Makhotla was
dismissed at a time when he was serving his notice period and the
Commissioner had failed to appreciate
the effect and implications
thereof on the remedy. Another is that it made its decision on
the basis that Toyota had done
nothing for 18 months to improve the
record of the arbitration proceedings or to deliver a complete record
and yet there was clear
evidence before the Labour Court of steps
that Toyota had taken at least between November 2011 and 31 January
2013.
Did Toyota do
nothing for 18 months?
[81] The decision of
the Labour Court was based, in part, on the finding that Toyota had
done nothing for 18 months “to improve
the record” of the
arbitration proceedings. This was the finding made in its
ex
tempore
judgment. In its judgment refusing leave to appeal
the Labour Court said the two primary grounds on which it had based
its
decision were that Toyota had failed to deliver a complete record
and that it had failed to prosecute its review application timeously
and diligently.
[82] First of all,
it would have been impossible for Toyota to deliver a complete record
of the arbitration proceedings because
the CCMA, which had the
obligation to ensure that a proper and complete record was delivered
to the Registrar of the Labour Court,
failed to do so. The
only disc it provided had 20 minutes of recording. Toyota and
the union did the best they could
to reconstruct the record on the
basis of their respective notes and the Commissioner’s notes
but, even after that, the record
was still unsatisfactory.
[83] Furthermore,
the finding that Toyota did nothing for 18 months to improve the
record or to prosecute its review application
is contradicted by the
facts. There is no period of 18 months when Toyota did nothing
to try and get as good a record as
was possible or when Toyota did
nothing to prosecute its review application. Toyota launched
its review application in October
2011 and the union launched its
application to have Toyota’s review application dismissed
without being adjudicated on the
merits on 8 August 2013.
[84] From November
2011 to 31 January 2013 almost every month some or other step was
taken. These steps were taken by Toyota’s
attorneys or
their correspondents, or by the CCMA or union, in response to
Toyota’s correspondence. This much is clear
from Toyota’s
answering affidavit filed in response to the union’s
application. Some of the steps taken by Toyota’s
attorneys or their correspondents are set out under [30] of the
majority judgment. Some of the dates on which those steps
were
taken are:
(a) 30 November 2011.
(b) 24 January 2012.
(c) 27 January 2012.
(d) 2 February 2012.
(e) 3 February 2012.
(f) 13 February 2012.
[58]
(g) 29 February 2012.
(h) 6 March 2012.
[59]
(i) 12 March 2012.
(j) 19 March 2012.
(k) 7 June 2012.
(l) 20 June 2012.
(m) 27 July 2012.
(n) 23 August 2012.
[60]
(o) During September 2012 Toyota’s attorneys were waiting for a
reply from the CCMA to their letter of 23 August 2012 requesting
the
CCMA to set the matter down for a reconstruction of the record.
(p) 5 October 2012.
(q) 22 October 2012.
(r) 28 November 2012.
(s) 23 January 2013.
(t) 24 January 2013.
(u) 29 January 2013.
(v) 31 January 2013.
[85] I have chosen
not to elaborate on the steps partly because some of the elaboration
is already in the majority judgment but
partly also to avoid making
this judgment longer than is necessary.
[86] Based on the
above, the finding of the Labour Court that for 18 months Toyota did
nothing to improve the record or to prosecute
its review application
was a misdirection. The period during which Toyota did not do
anything is from March 2013 to
8 August 2013.
However, I think that Toyota should not be blamed for all that period
because on 31 January 2013 it had
sent the union a transcription of
the parties’ notes and asked the union to indicate whether it
was comfortable with the
transcription. Obviously, Toyota
wanted the union’s view that the transcription was acceptable
and that it could be
filed in court. The union ignored that
letter and request and had not responded when it launched its
application on 8 August
2013. For the month of February 2013
and maybe that of March 2013 Toyota may have been justified to wait
for a reply from
the union. On that basis, maybe Toyota may be
criticised for waiting beyond March but the union was not the one who
could
complain about the delay from March 2013 to early August 2013
because it had failed to respond to the letter from Toyota’s
attorneys of 31 January 2013.
[87] In my view it
could not lie in the mouth of the union to complain in August that
Toyota had not prosecuted its review application
from February to
August 2013 when it had not reverted to Toyota on the latter’s
request. Toyota was right to wish to
file those notes by
agreement between the parties if at all possible and the union was
wrong not to co-operate in this regard.
The CCMA’s
role
[88] The Labour
Court did not set out the principles that governed the union’s
application for the dismissal of Toyota’s
review application
without adjudicating its merits. There are two or so further
matters to which I must refer. The
first one is that the Labour
Court did not make a finding that the CCMA and the Commissioner were
responsible for the fact that
there was no complete record available
to Toyota to lodge in Court. Furthermore, the CCMA delayed in
responding to correspondence
from Toyota’s attorneys which also
contributed to some delay. The CCMA did not respond at all to
Toyota’s attorneys’
request that it set the matter down
for a “reconstruction”.
[89] There was no
justification for this attitude on the Court’s part.
Instead of placing the blame for the absence
of a complete record at
the door of the CCMA where it belonged, the Labour Court defended the
CCMA for no obvious reason and suggested
that the parties should have
kept “proper notes or recordings of arbitration proceedings
themselves and one should be slow
to place full blame at the door of
the arbitrator or the CCMA”. I can see no justification
for requirement by the Court
that the parties to arbitration should
bring their own equipment to record arbitration proceedings
mechanically when the CCMA is
responsible for that. Nor can I
see any justification for the Labour Court’s suggestion that
the parties should have
taken more detailed notes when, as far as
they knew, the proceedings were being mechanically recorded by the
CCMA.
Toyota’s
failure to place complete record before Labour Court
[90] One of the
reasons advanced by the Labour Court for its decision to dismiss
Toyota’s review application without adjudicating
its merits was
that Toyota failed to place a complete record of the arbitration
proceedings before the Labour Court. It was
unfair for the
Labour Court to penalise Toyota for the fact that a complete record
of the arbitration proceedings could not be
placed before it.
The record made available to the Registrar of the Labour Court and
Toyota by the CCMA and the Commissioner
was incomplete. This
was due to no fault of Toyota. The blame for this lay squarely
at the door of the CCMA which the
Labour Court refused to criticise
for this obvious failure to do its job properly.
Prejudice
[91] Another factor
that the Labour Court did not take into account in making its
decision is prejudice. The Labour Court
was required to
consider prejudice in deciding whether or not to grant the union’s
application. It was obliged to consider
whether Mr Makhotla
stood to suffer greater prejudice if Toyota’s review
application was not dismissed at that stage but
was allowed to be
decided on the merits in due course or whether it was Toyota that
stood to suffer greater prejudice if its review
application was
dismissed without being adjudicated on the merits.
[92] The very nature
of the union’s application required prejudice to be considered
because the union could obtain a dismissal
of Toyota’s review
application after a few months after that when the review application
was adjudicated on the merits if
its application was dismissed.
However, if the Court dismissed Toyota’s review application at
that stage without the
adjudication of the merits of its review
application, the door of the Court would have been shut in Toyota’s
face permanently
on this matter. Toyota would never have its
review application adjudicated on the merits.
[93] No matter how
bad and burdensome the arbitration award was, Toyota would be
permanently burdened with it. However, if
the union’s
application was dismissed at that stage and in due course the union
secured an order dismissing Toyota’s
review application on the
merits, Mr Makhotla would still have been reinstated (assuming that
that could be done) and he would
be paid back pay. The back pay
would not only be for six months but also for the period from 30
September 2011 onwards when
he was prevented from returning to work
because Toyota was pursuing the review application. If Toyota’s
review application
was dismissed at that stage, Toyota would be
burdened for a long time – indefinitely.
Did Toyota’s
review application have reasonable prospects?
[94] There are three
grounds upon which I have come to the conclusion that Toyota had
reasonable prospects of success in the review
application and that,
on those grounds, the Labour Court should not have dismissed Toyota’s
review application without adjudicating
it on the merits. They
are that—
(a) the Commissioner committed a gross irregularity in preventing
Toyota from adequately cross-examining Mr Makhotla on contradictory
explanations;
(b) the Commissioner failed to appreciate the significance of
resolving the conflicting explanations given by Mr Makhotla; he also
failed to determine the dismissal dispute in its entirety in that he
did not make any finding whether Mr Makhotla was guilty of
misconduct
and this constituted both a gross irregularity and misconduct; and
(c) the Commissioner misconceived the inquiry he was called upon to
conduct and failed to apply his mind to the question whether
or not
reinstatement was appropriate in the present case; he both exceeded
his powers and committed a gross irregularity in ordering
reinstatement and the payment of the amount of R218 400.
Indeed, I am of the view that the Commissioner gave an unreasonable
arbitration award in the sense that no reasonable decision-maker
could have given the award that he gave.
[95] Before
discussing these grounds, it is necessary to say a word or two about
the ground of review of gross irregularity in the
proceedings.
This is one of the grounds of review relied upon by Toyota. In
Goldfields Investment
[61]
the plaintiffs instituted an action to have a decision of the
Magistrate of the district of Johannesburg reviewed and set
aside.
[62]
The Magistrate had sat in appeals in which he was required by
section 15 of the Local Authorities Rating Ordinance
[63]
to inquire into values that had been put on certain properties by the
valuation court. He took the attitude that he was not
entitled
to interfere with the values that had been given to the relevant
stands by the valuation court unless he was of the opinion
that those
values were so untenable that no reasonable person could have held
them.
[96] The Court held
that, by the attitude that he adopted, the Magistrate had failed to
carry out a function that he was required
by law to carry out and
this constituted a gross irregularity in the proceedings. In
Goldfields Investment
[64]
Greenberg JP quoted the following passage from
Ellis v Morgan
:
[65]
“‘[I]rregularity in proceedings does not mean an
incorrect judgment; it refers not to the result but to the methods
of
the trial, such as, for example, some high-handed or mistaken action
which has prevented the aggrieved party from having his
case fully
and fairly determined.’”
Thereafter Greenberg
JP continued:
“The
plaintiffs’ contention is that a mistake of law
per se
is not an irregularity, but through its consequence it may create an
irregularity, for instance, where a magistrate, through mis-reading
a
section, refuses to the aggrieved party a hearing to which he is
entitled. Initially the error arises from a mistake of
law, but
before relief by way of review is granted one has to consider the
consequences.”
[66]
[97] Later on
Greenberg JP said:
“But in the present case the magistrate’s error is
fundamental. He is directed to inquire into the value, and
he
has declined to exercise the function which is entrusted to him.
He has declined to do what the Statute has told him to
do. It
appears to me, therefore, that in the first place the magistrate has
erred, and in the second place, his error is
such as to have produced
results which are a denial to the plaintiffs of the rights which were
given to them by the section.
This appears to me to be a gross
irregularity within the terms of Proclamation 14 of 1902.”
[67]
[98] Schreiner J
concurred in the judgment of Greenberg JP but wrote separately to
elaborate on the nature of gross irregularities.
Schreiner J
said that gross irregularities fall broadly into two classes.
He said that there were those that take place openly,
as part of the
conduct of the trial – which he said might be called patent
irregularities – and those that took place
inside the mind of
the judicial officer, which he said were only ascertainable from the
reasons given by the judicial officer and
which might be called
latent. Of course, said he, even the first class are only
material in as much as they prevent, or are
deemed to prevent, the
Magistrate’s mind from being properly prepared for the giving
of a correct decision. He went
on to point out that, unlike the
second, they admit of objective treatment, according to the nature of
the conduct. He stated
that neither in the case of latent nor
in the case of patent irregularities need there be any intentional
arbitrariness of conduct
or any conscious denial of justice.
[99] Schreiner J
then said:
“The law, as stated in
Ellis v Morgan
has been accepted
in subsequent cases, and the passage which has been quoted from that
case shows that it is not merely high-handed
or arbitrary conduct
which is described as a gross irregularity; behaviour which is
perfectly well-intentioned and
bona fide
, though mistaken, may
come under that description.
The crucial question is whether
it prevented a fair trial of the issues. If it did prevent a
fair trial of the issues then
it will amount to a gross
irregularity. Many patents irregularities have this effect.
And if from the magistrate’s
reasons it appears that his mind
was not in a state to enable him to try the case fairly this will
amount to a latent gross irregularity.
If, on the other hand,
he merely comes to a wrong decision owing to his having made a
mistake on a point of law in relation to
the merits, this does not
amount to gross irregularity. In matters relating to the merits
the magistrate may err by taking
a wrong one of several possible
views, or he may err by mistaking or misunderstanding the point in
issue. In the latter case
it may be said that he is in a sense
failing to address his mind to the true point to be decided and
therefore failing to afford
the parties a fair trial. But that
is not necessarily the case
.”
[68]
(Emphasis added.)
[100] Schreiner J
said that, where the point relates only to the merits of the case, it
would be straining the language to describe
it as a gross
irregularity or a denial of a fair trial. He said that one
would say that the Magistrate has decided the case
fairly but had
gone wrong on the law. But, pointed out Schreiner J, if the
mistake leads to—
“
the Court’s not merely missing or misunderstanding a
point of law on the merits
,
but its misconceiving the whole
nature of the inquiry, or of its duties in connection therewith, then
it is in accordance with the
ordinary use of language to say that the
losing party has not had a fair trial.
I agree that in the
present case the facts fall within this latter class of case, and as
to his functions, the magistrate,
owing to the erroneous view which
he held as to his functions, really never dealt with the matter
before him in the manner which
was contemplated by the section.
That being so, there was a gross irregularity, and the proceedings
should be set aside.”
[69]
(Emphasis added.)
[101] The test for
determining whether or not the decision-maker’s conduct or
decision constitutes a gross irregularity is
captured when, in the
above passage Schreiner J says:
“The crucial question is whether [the conduct of the decision
maker] prevented a fair trial of the issues. If it did
prevent
a fair trial of the issues then it will amount to a gross
irregularity.”
[70]
In
Telcordia
the
Supreme Court of Appeal said about errors of law:
“
Errors of law can, no doubt, lead to gross irregularities
in the conduct of the proceedings. Telcordia posed the example
where
an arbitrator, because of a misunderstanding of the audi
principle, refuses to hear the one party. Although in such a
case
the error of law gives rise to the irregularity, the reviewable
irregularity would be the refusal to hear that party, and not the
error of law. Likewise, an error of law may lead an arbitrator
to exceed his powers or to misconceive
the nature of the inquiry
and his duties in connection therewith.”
[71]
(Emphasis added.)
[102] In
Paper
Printing Wood
[72]
the then Appellate Division of the Supreme Court,
inter alia
,
had this to say about the phrase “gross irregularity in the
proceedings” as used in the section 24(1)(c) of the now
repealed Supreme Court Act:
[73]
“Can this be
brought home under para
(c)
of section 24(1)—‘gross
irregularity in the proceedings’? That expression is not
confined to defects in
the procedure as such. It covers the
case where
the decision-maker through an error of law misconceives
the nature of his functions and thus fails to apply his mind to the
true
issues in the manner required by statute, with the result that
the aggrieved party is in that respect denied a fair hearing
(see, for example
, Goldfields Investments Ltd and Another v City
Council of Johannesburg and Another
1938 TPD 551
;
Visser v
Estate Collins
1952 (2) SA 546
(C))
.
”
[74]
(Emphasis added.)
[103] I now proceed
to deal with the grounds on which I have come to the conclusion that
Toyota had reasonable prospects of success
in its review application
and that, on, among others, those grounds, the Labour Court should
not have dismissed Toyota’s
review application without
adjudicating it on the merits. I start with the ground relating
to the Commissioner’s conduct
in preventing Toyota from
adequately cross-examining Mr Makhotla on his conflicting
explanations for his absence from work.
Prevention from
cross-examining
[104] In applying to
the Labour Court for the dismissal of Toyota’s review
application at a time when the union had not delivered
its answering
affidavits, the union took the risk that the Court would have to
accept Toyota’s evidence in the founding and
supplementary
affidavits to be true because it was not disputed. Therefore,
the approach that the Labour Court was called
upon to adopt was that
of assuming Toyota’s averments in the affidavits to be true.
[105] One of
Toyota’s averments in its founding affidavit was that the
Commissioner had prevented Toyota from adequately cross-examining
Mr
Makhotla on his contradictory explanations for his absence from
work. If that averment was true, there would be no doubt
that
the Commissioner had committed a gross irregularity in the
proceedings because the question whether Mr Makhotla had a valid
reason for his absence from work for over four days was critical in
Toyota’s case. As the authorities referred to above
reveal, a gross irregularity is conduct on the part of an arbitrator
or decision-maker that prevents one of the parties from having
its
case fairly heard or that prevents a fair trial of issues. Any
decision by the Commissioner to prevent Toyota from cross-examining
Mr Makhotla on such a crucial aspect of the case would be a gross
irregularity justifying the setting aside of the Commissioner’s
award.
[106] The
Commissioner was served with Toyota’s review application and,
on reading the founding affidavit, he would have noted
that Toyota
was making the serious allegation against him that he had prevented
it from adequately cross examining Mr Makhotla
on such a crucial
aspect of the case. Yet, he did not deliver an affidavit
denying the allegation or justifying it.
It is interesting to
note that in his award the Commissioner did not resolve the issue of
the contradictory nature of Mr Makhotla’s
explanations and yet
it was a crucial aspect of the case. On the Commissioner’s
notes as well as on the notes of both
parties’ representatives,
there is no indication that the Commissioner made any attempt to
probe into Mr Makhotla’s
reasons or explanations for his
absence from work for over four days. One would have thought
that the Commissioner would
have probed this aspect of Mr Makhotla’s
evidence.
Failure to
resolve conflicting explanations and to determine merits of alleged
misconduct
[107] The dispute
between Toyota and Mr Makhotla was whether the latter’s
dismissal was fair. Toyota’s position
was that Mr
Makhotla had no valid reason or acceptable explanation for his
absence from work over four days. Mr Makhotla’s
position
was that he had an acceptable explanation. That was the first
component of the dismissal dispute between the parties.
If Mr
Makhotla was not guilty of misconduct, it would follow that the
dismissal was unfair. Ordinarily, another component
of a
dismissal dispute would be whether a fair procedure was complied with
when the dismissal was effected. In this case
that component
was not in issue. The second component was whether, if Mr
Makhotla was guilty of the misconduct, dismissal
was a fair
sanction. If dismissal was a fair sanction, that would be the
end of the matter. If dismissal was unfair
as a sanction, the
third component of the dispute would be whether Mr Makhotla should be
reinstated and, if so, with or without
a disciplinary warning of one
kind or another or whether he should be awarded compensation.
All these are components of a
dispute whether a dismissal is fair.
They were also components of the dismissal dispute between Toyota and
Mr Makhotla.
If any one of these components of a dismissal
dispute is not resolved, the dispute cannot be said to have been
determined.
[108] It is
important that an arbitrator who is assigned a dispute about the
fairness of a dismissal to arbitrate determines every
component of
the dispute that is in issue between the parties. If he or she
fails to determine any component of the dispute
that is in issue
between the parties, he or she will have failed to carry out his or
her statutory function. This would constitute
misconduct as
well as a gross irregularity in the proceedings.
[109] Whether Mr
Makhotla had a valid reason or acceptable explanation for his absence
from work on four consecutive days was the
most critical part of the
dispute between the parties. The Commissioner also regarded
this part of the dispute as very important.
In his award he
said:
“5.4 As per the parties evidence it is
indeed common cause that . . . [Mr Makhotla] was absent from
28
February to 3 March 2011.
Their main bone of contention is
whether . . . [he] had obtained any permission for his absence (AWOL)
and whether he provided a
plausible explanation for same
.”
[75]
(Emphasis added.)
I do not agree with
the Commissioner that whether Mr Makhotla had obtained permission to
be absent from work was in dispute between
the parties. It was
common cause that Mr Makhotla had never been given any permission.
It was never his case that Toyota
had given him permission to be
absent from work. What was in dispute was whether, not having
obtained permission, he had
a valid reason or an acceptable
explanation for his absence from work.
[110] The
Commissioner also said:
“
The crux of the matter
is that absence without leave
for four days and
failure to provide acceptable reasons
is a
dismissible offence in terms of the company’s disciplinary
code.”
[76]
(Emphasis added and reference omitted.)
This, too, shows
that the Commissioner was alive to the fact that whether Mr Makhotla
had an acceptable explanation for his
absence from work for four
consecutive days was a crucial part of the dispute between the
parties.
[111] According to
Toyota, Mr Makhotla gave three conflicting explanations as to why he
was absent from work. The first was
that he was not well.
According to Toyota he gave this one to Mr Hawkins in a telephone
conversation on the first day of
his absence from work. He gave
the second one in an SMS to his immediate superior on the second day
of his absence.
It was to the effect that he had gone to the
Drakensberg on his own to “clear his mind”. He gave
the third one
to his immediate superior on the day he returned to
work and also at the arbitration hearing. It was that he had
gone to
rescue a certain girl from an initiation process. He
did not give any details of his explanations.
[112] In the
arbitration proceedings Toyota led the evidence of four witnesses.
That Mr Makhotla had given the above different
explanations was
testified to. In his evidence in the arbitration proceedings Mr
Makhotla denied that he had told Mr Hawkins
that the reason for
his absence from work was that he was not well. However, he did
not state what he had said to Mr Hawkins
in the telephone
conversation if he did not say that he was not well. He also
did not say why Mr Hawkins would have
said this is what Mr
Makhotla had said to him if he had not said it. It would be
difficult to believe that Mr Hawkins would
falsely attribute to
Mr Makhotla a health reason for the latter’s absence from
work if he sought to put him into trouble.
It was never
suggested in cross-examination that Mr Hawkins had a bad motive for
attributing this explanation to Mr Makhotla.
[113] Mr Makhotla
did not deny having given the explanation that he gave in the SMS to
his immediate superior. That is that
he had gone to Drakensberg
“to clear his mind”. That explanation is
inconsistent with the explanation that he
had gone to rescue a girl
from an initiation process. Yet, Mr Makhotla never said in the
arbitration why he had given that
explanation in the SMS to his
immediate superior and not the one that he gave on his return to
work. It was easy for Mr Makhotla
to deny what Mr Hawkins
said he had said to him in a telephone conversation on the first day
of his absence from work because
it was not recorded anywhere.
He, however, could not deny that in the SMS to his immediate superior
he had given an explanation
that differed from the one he gave on his
return to work and in the arbitration. He could not deny it
because he had given
it in writing.
[114] The
Commissioner had three explanations before him as to why Mr Makhotla
was absent from work over four consecutive days.
All three
explanations were contradictory. He pointed out that three of
Toyota’s four witnesses corroborated Mrs Mukhavhuli
in all
material respects. Mrs Mukhavhuli was Mr Makhotla’s
immediate superior and was Toyota’s first witness
in the
arbitration. The Commissioner put it thus:
“The other three witnesses, Ms. Z. Malumo, Ms. N. Hlatshwayo
and Mr. J. Hawkins corroborated Ms. O. Mukhavhuli’s testimony
in all material respects
.
Most significantly
Mr.
Hawkins confirmed that [Mr Makhotla] phoned him indicating that he
could not report for work as he was not feeling well.”
[77]
(Emphasis added.)
[115] The
Commissioner did not make any credibility findings against any of
Toyota’s witnesses. Nor did he make any
credibility
finding against Mr Makhotla. The tone of the last sentence I
have just quoted from the award suggests that the
Commissioner had no
difficulty with Mr Hawkins’ evidence that Mr Makhotla had
called him and said that he could not report
for duty because he was
not feeling well. Mr Makhotla knew from the outcome of the
disciplinary inquiry that Toyota did not
accept his explanation based
on rescuing a girl from an initiation process. He knew,
therefore, that even at the arbitration
this would still be a crucial
aspect of the case. Yet, when he went to the arbitration, he
did not bring any witness to corroborate
his story. Nor did he
bring any documents to support his story. He also did not bring
any useful details such as the
name and residential address of the
girl he had gone to rescue. He had had many months to think
about how he would reconcile
his explanation contained in the SMS
with the girl rescue explanation and in the arbitration he failed to
reconcile the explanations.
[116] The
Commissioner did not decide which one of the three explanations was
true. When he was supposed to deal with the
issue of whether Mr
Makhotla was guilty of misconduct, the Commissioner had this to say:
“5.4 As per the parties evidence it is
indeed common cause that [Mr Makhotla] was absent from 28
February to
3 March 2011.
Their main bone of contention
is whether
[Mr Makhotla] had obtained any permission for his absence (AWOL) and
whether he provided a plausible explanation for
same.
5.5 The evidence indicates that [Mr
Makhotla] phoned Mr Hawkins and also later forwarded a text
message
to his immediate superior. Therefore, on the second day of his
absence [Toyota] was aware of [Mr Makhotla’s]
whereabouts.
If indeed his continued absence was viewed as an offence his
immediate superior ought to have rejected his apology
and instructed
him to return to work immediately. In actual fact a proper
reading of the company’s disciplinary code
indicates that on
the third day of an employee’s AWOL the company must despatch a
telegram or registered letter of enquiry
about his whereabouts (See
page 14, company bundle). Perhaps this was not done because
[Toyota] was aware of [Mr Makhotla’s]
whereabouts.”
(Emphasis added.)
[117] These two
paragraphs are the most appropriate in which the Commissioner would
have made the finding that Mr Makhotla was guilty
of misconduct if he
made such a finding. There is no other paragraph in his award
in which it can be said that he did so.
What is clear is that
in the paragraphs referred to there is no express finding that Mr
Makhotla had a valid reason or acceptable
explanation for his absence
from work. Nor is there any finding expressly made that Mr
Makhotla was guilty of the misconduct.
There is also no express
finding that he was not guilty of misconduct. Yet, the
Commissioner knew that whether or not Mr
Makhotla had a valid reason
or acceptable explanation for his absence from work was, in his
words, “the crux of the matter”
or “the main bone
of contention”.
[118] The
Commissioner did not even by implication make a finding that
Mr Makhotla had a valid reason or an acceptable explanation
for
his absence. The Commissioner simply did not determine or
decide this “crux of the matter” or “main
bone of
contention” between the parties. It seems that the
Commissioner misconceived the inquiry he was required to
conduct in
paragraph 5.5 of his award. He was required to direct his mind
to the question whether or not on the evidence
before him it could be
said that Mr Makhotla had a valid reason or an acceptable explanation
for his absence from work over four
consecutive days. He did
not do so. Instead, he directed his mind to the question
whether Toyota “was aware of
[Mr Makhotla’s]
whereabouts”, the question whether Toyota “viewed”
“his continued absence”
“as an offence” and
to a provision of the disciplinary code which he said—
“indicate[d] that on the third day of an employee’s AWOL
[Toyota] [had to] despatch a telegram or registered letter”.
[78]
None of these
matters went to the question whether Mr Makhotla had a valid reason
or an acceptable explanation for his absence from
work.
[119] I conclude
that the Commissioner did not determine whether Mr Makhotla was
guilty of the misconduct for which he had been
dismissed or whether
Mr Makhotla had a valid reason or acceptable explanation for his
absence from work. Instead, he decided
the matter on the
assumption that Mr Makhotla did not have a “plausible”
explanation for his absence from work.
He said:
“5.6. Further, even if one was to find that
[Mr Makhotla’s] explanation was not plausible the dismissal
was
unwarranted. There is no evidence of habitual absenteeism.
Put differently [Mr Makhotla] does not have a dismal
disciplinary
record in this regard. It is trite that if an employee is
unable to account for its absence the respondent’s
recourse is
to ensure that he is not paid for the period of his unauthorised
absence or leave (See
Section 23(1)
of the
Basic Conditions of
Employment Act of 1997
).
5.7 In the circumstances I am
unable to conclude that [Mr Makhotla’s] dismissal was
substantively fair. Thus, it is just and equitable to order
[Toyota] to reinstate [Mr Makhotla] retrospectively.”
[120]
The provisions of item 7 of the Code of Good Practice: Dismissal
support the proposition that
anyone determining the fairness of a
dismissal for misconduct is required first to determine whether the
employee was guilty of
misconduct before dealing with sanction.
That code was issued in terms of
section 188(2)
of the LRA. It
appears in Schedule 8 to the LRA. Item 7 provides in paragraph
(a) that a person determining whether
a dismissal for misconduct is
fair must consider whether or not a rule or standard has been
contravened. Paragraph (b) of
the item deals with matters that
must be dealt with only if it has been found that the employee
contravened a rule or standard.
Item 7 of the Code of Good
Practice: Dismissal reads:
“7. Guidelines in cases of
dismissal for misconduct
Any person who is determining whether a dismissal for misconduct
is unfair should consider—
(a)
Whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the workplace; and
(b)
If a rule or standard was contravened
, whether or not—
(i)
the rule was a valid or reasonable
rule or standard;
(ii)
the employee was aware, or could reasonably
be expected to have been
aware, of the rule or standard;
(iii)
the rule or standard has been consistently applied
by the employer;
and
(iv)
dismissal was an appropriate sanction for the contravention
of the
rule or standard.” (Emphasis added.)
[121] Chapter VII of
the LRA is a chapter on dispute resolution.
Part C
of that
chapter deals with the resolution of disputes under the auspices of
the CCMA. It covers
sections 133
-
150
.
Section 133
bears
the heading: “Resolution of disputes under the auspices of
Commission”.
Section 133(1)
and (2)(a) reads:
“(1) The Commission must appoint a commissioner
to attempt
to resolve
through
conciliation—
(a) any dispute referred to
it in terms of
section 134
; and
(b) any other dispute that
has been referred to it in terms of this Act.
(2) If a dispute remains
unresolved
after conciliation, the
Commission must arbitrate the dispute if—
(a) this Act requires the
dispute to be arbitrated and any party to the dispute has requested
that the dispute
be resolved through arbitration
;
(b) . . . .”
(Emphasis added.)
[122]
One can also have regard to the provisions of
section 136(1)
and (2)
and
section 137(1).
Section 136(1)
and (2) reads:
“(1) If this Act requires a
dispute to
be resolved through arbitration
, the Commission
must appoint a commissioner to arbitrate that dispute if
—
(a) a commissioner has
issued a certificate stating that the dispute remains
unresolved
;
and
(b) within 90 days after
the date on which that certificate was issued, any party to
the
dispute has requested that the dispute
be resolved through
arbitration
. However, the Commission, on good cause shown,
may condone a party’s non observance of that timeframe and
allow a request
for arbitration filed by the party after the expiry
of the 90-day period.” (Emphasis added.)
Section 136(2)
reads:
“A commissioner appointed in terms of subsection (1) may be the
same commissioner who attempted
to resolve the dispute through
conciliation
.” (Emphasis added.)
Section 137(1)
reads:
“In the circumstances contemplated in
section 136(1)
, any party
to the dispute may apply to the director to appoint a senior
commissioner to attempt
to resolve the dispute through
arbitration
.” (Emphasis added.)
[123] The purpose of
referring to the provisions of
sections 133
,
136
(1) and (2) and
137
(1) is to show that the statutory mandate of an arbitrator
appointed in terms of the LRA, including a commissioner of the CCMA,
is to “resolve” a dispute assigned to him or her and
arbitration is simply a means to achieve that end. That is
why
in
sections 133
,
136
and
137
(1) the word “resolve” is
used in the way it is used. In this case, in my view the
Commissioner failed to carry
out that mandate. He failed
because, it cannot be said that he resolved the dispute between the
parties when he did not decide
a part of the dispute that even he
himself regarded as the “crux of the matter” or the “main
bone of contention”
between the parties. That failure
constituted both a gross irregularity in the proceedings and
misconduct on the Commissioner’s
part justifying the reviewing
and setting aside of his award.
[124] If a
Commissioner does not decide whether the employee was guilty of the
misconduct for which he was dismissed, he acts contrary
to the
requirements of
section 138(1)
of the LRA.
Section 138(1)
reads:
“The commissioner may conduct the arbitration in a manner that
the commissioner considers appropriate in order
to determine the
dispute fairly and quickly, but must deal with the substantial merits
of the dispute with the minimum of legal
formalities
.”
(Emphasis added.)
This provision is in
part to the effect that, even though it is up to the Commissioner to
decide the manner in which he or she conduct
an arbitration, he or
she must ensure that the dispute is determined “fairly and
quickly” and that, whatever manner
he adopts to conduct the
arbitration, he must deal with the substantial merits of the dispute
.
[125] When an
arbitrator fails, as the Commissioner did, to decide whether the
employee was guilty of the misconduct for which the
employer had
dismissed him, the arbitrator or Commissioner, like the Magistrate in
the
Goldfield Investment
case who failed to carry out the
instruction of the Ordinance, fails to carry out a statutory
instruction.
[79]
When an arbitrator fails, as the Commissioner in this case failed, to
decide which one of the conflicting explanations given
by the
employee is the correct one or is true, the arbitrator fails to carry
out his statutory instruction. This constitutes
both a gross
irregularity in the proceedings as well as misconduct justifying that
the award be reviewed and set aside.
[126] The
Commissioner did not make any decision as to whether a rule or
standard had been contravened which would then have allowed
him to
move to the second stage of the inquiry. The Commissioner
simply said that, even if Mr Makhotla had been guilty of
the
misconduct, dismissal was unfair. He was not entitled to
consider whether dismissal was an appropriate sanction without
having
decided whether Mr Makhotla had been guilty of contravening the
rule. In failing to do so, he prevented Toyota
from having a
fair trial of issues. This alone constituted a gross
irregularity in the proceedings.
[127] In its
founding affidavit Toyota complained that the Commissioner:
(a) had failed “to recognise that [Mr Makhotla’s] defence
was contradictory . . .”;
(b) had ignored “the two versions put forward” by Mr
Makhotla as to his absence from work, namely—
(i) that he had gone to the Drakensberg to clear his head;
(ii) that he had gone to rescue a girl from an initiation school; and
(c) had failed “to appreciate the dishonest nature of [Mr
Makhotla’s] defence and the significance of such dishonesty
on
[Mr Makhotla’s] defence as set out in the Constitutional Court
in the matter of
Sidumo v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC)”.
[128] On these
grounds, Toyota submitted that, in conflict with the behest of the
statute, the Commissioner handed down an arbitration
award that no
reasonable decision maker could have handed down, failed to apply his
mind, misconducted himself, committed a gross
irregularity and
exceeded his powers. In my view what Toyota was complaining
about with regard to the issues dealt with in
[75] is that it was
critical for the Commissioner to decide which one, if any, of the
explanations given by Mr Makhotla for his
absence from work was true
and which ones were not true. Toyota implied that the
Commissioner could not fairly determine
this dispute between the
parties without deciding that issue.
[129] Toyota was
also saying that the contradictory explanations that Mr Makhotla had
given could not all be true. Two of
the three explanations had
to be false if not all three of them. It was saying that Mr
Makhotla had been dishonest and, if
the Commissioner had appreciated
this, he would have made a finding as to which one of the different
explanations was true.
Toyota also implies that, if the
Commissioner had decided which one of the explanations, if any, was
true, he would have decided
the issue of Mr Makhotla’s guilt or
innocence. It contends that, had the Commissioner appreciated
that he was required
to decide whether Mr Makhotla was guilty of the
misconduct or not, he would have resolved the issue of the
conflicting explanations.
Toyota suggests that, if the
Commissioner had appreciated the dishonest nature of Mr Makhotla’s
defence, he would have
resolved the conflicting explanations and
would have found that Mr Makhotla had no valid reason or acceptable
explanation for his
absence from work and had been dishonest. In
turn, implies Toyota, this would have led to a finding that the
dismissal was
fair. Toyota suggests that, by failing to
appreciate this and not resolving the conflicting explanations, the
Commissioner
denied Toyota a fair determination of issues which
constitutes a gross irregularity in the proceedings.
[130] It must be
remembered that it is the employer who bears the onus to prove that a
dismissal is fair.
[80]
If an arbitrator does not determine whether the employee was guilty
of misconduct, the employer has no chance of showing
that the
dismissal was fair. In a particular case an arbitrator may find
that the employee was guilty of misconduct for which
he was dismissed
but still find that, nevertheless, dismissal was an unfair sanction.
That this can happen does not, however,
mean that an arbitrator may
fairly determine such a dismissal dispute without determining whether
or not the employee was guilty
of misconduct.
[131] Part of the
reason why an arbitrator is obliged to determine whether the employee
was guilty of misconduct, apart from the
fact that it is a critical
component of such a dismissal dispute, is that, if it is found that
dismissal as a sanction was unfair,
the arbitrator must then
determine what lesser sanction should be imposed on the employee.
The arbitrator cannot impose a
lesser sanction on an employee without
first making a finding whether the employee committed the misconduct
complained of.
If an arbitrator were not to make the finding
whether the employee was guilty but assumed that he was guilty, and
then say that
dismissal, as a sanction, was unfair and ordered the
reinstatement of the employee, the employee would return to work as
an innocent
employee without even a disciplinary warning. That
would be inappropriate. An employer has an interest in the
determination
of whether the employee was guilty of misconduct.
[132] Viewed against
the fact that a crucial part of the dispute between the parties was
whether Mr Makhotla had a valid reason
or acceptable explanation for
his absence from work and that he had given conflicting explanations,
Toyota was right in contending
that the case was such that, in order
to determine the dispute, the Commissioner had to decide which
explanation, if any, was correct
and whether it was an unacceptable
explanation. I agree that the Commissioner’s failure to
determine this issue and
his approach in terms of which he purported
to only determine whether, assuming that Mr Makhotla had no
acceptable explanation,
dismissal was a fair sanction prevented a
fair determination of issues. Thus, it constituted a gross
irregularity in the
proceedings. This would justify the setting
aside of the arbitration award.
Resignation and
its effect on remedy
[133]
Section 193
of
the LRA sets out remedies for unfair dismissals.
Section 193(1)
provides:
“If the Labour Court or an arbitrator appointed in terms of
this
Act
finds that a
dismissal
is unfair, the Court or
the arbitrator may—
(a) order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work
in which the employee was employed before the dismissal or
in other
reasonably suitable work on any terms and conditions from any date
not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.”
These remedies have
been held to be alternative to one another with the result that no
two of them can be given in the same case
to one and the same
employee.
[81]
The first two are by their nature mutually exclusive. But for
the word “or” at the end of (b) the third
one could
notionally be given together with any one of the first two. For
that reason, it has been held that compensation
may not be awarded
together with any one of the other two remedies.
[134] Then there is
section 193(2).
It reads:
“The Labour Court or the arbitrator
must require the
employer to re-instate
or re-employ the employee unless—
(a) the employee does not wish to be re-instated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment would be intolerable;
(c)
it is not reasonably practicable for the employer to
re-instate or re-employ the employee
; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.” (Emphasis added.)
In terms of
section
193(2)
reinstatement is the preferred remedy and the Labour Court and
arbitrators are enjoined to grant reinstatement if they have found
a
dismissal unfair unless one of the situations listed in (a) to (d)
applies. Reinstatement is not competent in those cases
in which
one or more of the situations listed in paragraphs (a) to (d) is
present.
[135] Once the
Labour Court or an arbitrator has found a dismissal unfair, it or he
is obliged to consider which one of the remedies
listed in
section
193(1)
is appropriate, having regard to the meaning of
section
193(2).
Considering both the provisions of
section 193(1)
and
section 193(2)
is important because one cannot adopt the attitude
that dismissal is unfair, therefore, reinstatement must be ordered.
The
Labour Court or an arbitrator should carefully consider the
options of remedies in
section 193(1)
as well as the effect of the
provisions of
section 193(2)
before deciding on an appropriate
remedy. A failure to have regard to the provisions of
section
193(1)
and (2) may lead to the Court or arbitrator granting an award
of reinstatement in a case in which that remedy is precluded by
section 193(2).
[136] I wish to
highlight paragraph (c) of
section 193(2).
Paragraph (c) is to
the effect that reinstatement may not be granted in a case where it
would not be “reasonably practicable
for the employer to
re-instate or re-employ the employee”. Once the Labour
Court or an arbitrator has decided that
dismissal is unfair, it or he
should, before deciding on which remedy to grant, ask itself or
himself certain questions.
These would include questions such
as: in what way, if any, did the dismissal cause the employee
prejudice? Had the dismissal
not occurred, where would the
employee be?
[137] In seeking to
determine what remedy the Labour Court or an arbitrator should grant
in a particular case, it seems to me that
the Court or an arbitrator
should first appreciate the meaning of the word “reinstate”.
In
Equity Aviation
this Court said:
“The ordinary meaning of the word ‘reinstate’ is to
put the employee back into the same job or position he or
she
occupied before the dismissal, on the same terms and conditions.
Reinstatement is the primary statutory remedy in unfair
dismissal
disputes.
It is aimed at placing an employee in the position
he or she would have been [in] but for the unfair dismissal. It
safeguards
workers’ employment by restoring the employment
contract. Differently put, if employees are reinstated they
resume
employment on the same terms and conditions that prevailed at
the time of their dismissal
.”
[82]
(Emphasis added and footnote omitted.)
[138] In this
passage, this Court said that, where a Court or an arbitrator orders
an employer to reinstate an employee, it in effect
orders the
employer to put the employee “in the position he or she would
have been [in] but for the unfair dismissal”.
[83]
This means that the Labour Court or arbitrator must ask itself the
question: but for the dismissal, in what position would
the employee
have been? The court or arbitrator must ask this question
because it must ensure that it does not order the
“reinstatement”
of an employee that will not put the employee in the position in
which he or she would not have been
but for the dismissal. If
that happens, that would not be reinstatement as defined by this
Court in
Equity Aviation
. It is also important to
highlight the fact that in the above passage this Court made it clear
that the remedy of reinstatement
“safeguards workers’”
employment by “restoring the employment contract”.
I pause here to say
that in this sentence this Court emphasised that
the remedy of reinstatement is meant to restore the employment
contract.
Obviously, the only contract that can be restored
would be the contract that the employee had with the employer at the
time of
the dismissal.
[84]
[139] In
Equity
Aviation
this Court also put the definition of the word
“reinstate” differently. It said:
“Differently put, if employees are reinstated they resume
employment on the same terms and conditions that prevailed at the
time of their dismissal.”
[85]
Later
this Court said:
“The ordinary meaning of the word ‘reinstate’ means
that the reinstatement will not run a date from after the
arbitration
award. Ordinarily then, if a Commissioner of the CCMA orders
the reinstatement of an employee that reinstatement
will operate from
the date of the award of the CCMA, unless the Commissioner decides to
render the reinstatement retrospective.
The fact that the
dismissed employee has been without income during the period since
his or her dismissal must, among other things,
be taken into account
in the exercise of the discretion, given that the employee’s
having been without income for that period
was a direct result of the
employer’s conduct in dismissing him or her unfairly
.”
[86]
(Emphasis added.)
Lastly,
the Court said:
“[I]t is important to bear in mind that where a court or
Commissioner has decided that reinstatement is the appropriate
remedy, it will also have to be decided that the worker has been
unfairly dismissed.
The worker will thus have been deprived
of wages, unfairly, as a result of the conduct of the employer
.”
[87]
(Emphasis added.)
[140] It is clear
from the last passage quoted above that, in so far as the making of
an order that may have implications for back
pay is concerned, the
question that would need to be asked would be whether the employee
was deprived of remuneration or wages
as a result of the employer’s
conduct in dismissing him or her. If the answer to this
question is that, indeed, the
dismissal deprived the employee of
remuneration for the period in question after dismissal, then an
order with implications for
the payment of back pay would be
justified. However, if the answer to the question is that the
employee was not deprived
of wages or remuneration for the period in
question as a result of the employer’s conduct in dismissing
him or her, then
an order with such implications should not be made
against the employer. Such an order would be without any basis
and would
be unreasonable.
[141] What is the
effect of resignation on the remedy for dismissal? There are
different contexts in which resignation occurs.
Where an
employee resigned from his or her employer’s employ in
circumstances where the resignation constitutes constructive
dismissal, the resignation is dealt with on the basis of our law on
constructive dismissal. We need not concern ourselves
with that
situation.
[142] Another
context of resignation is the normal resignation. Where an
employee resigns from the employ of his employer
and does so
voluntarily, the employer may not discipline that employee after the
resignation has taken effect. That is because,
once the
resignation has taken effect, the employee is no longer an employee
of that employer and that employer does not have jurisdiction
over
the employee anymore. Indeed, even the CCMA or the relevant
bargaining council would have no jurisdiction to entertain
a referral
of a “dismissal” dispute in such a case because there
would be no dismissal as envisaged in
section 186
of the LRA.
Therefore, if an employee who has validly resigned later refers an
alleged unfair dismissal dispute to arbitration
under the LRA and it
is found that the employee had validly resigned and had not been
dismissed, reinstatement would be incompetent.
[143] If, in the
present case, the resignation had preceded the dismissal, the CCMA
would have had no jurisdiction and an award
would not have been
competent because an employee who resigned cannot be reinstated.
That employee was not dismissed and
reinstatement applies to cases of
dismissal. The employee would also have brought his contract of
employment to an end voluntarily
and fairly. Mr Makhotla
submitted his letter of resignation to Toyota on 7 March 2011
indicating that he was resigning and
his last day in Toyota’s
employ would be 31 March 2011. He was dismissed on 24 March
2011. That was seven days
before his last day of employment.
[144] Since an
employee has no right of withdrawing a valid and lawful resignation
once it has been communicated to the employer
except with the consent
of the employer, this means that as at the date of his dismissal, Mr
Makhotla was bound to leave Toyota’s
employ on 31 March 2011.
As already indicated, Mr Makhotla was dismissed a few days before his
resignation would take effect.
One can, therefore, say that the
dismissal interrupted the resignation. That is why we cannot
say that Mr Makhotla’s
employment with Toyota came to an
end as a result of his resignation. We say that it came to an
end as a result of his dismissal
on 24 March 2011. However, the
fact that Mr Makhotla’s employment came to an end as a result
of dismissal and not as
a result of resignation does not mean that
the fact that he was dismissed at a time when he had submitted a
letter of resignation
and was serving his notice period and was due
to leave Toyota’s employ in seven days time is irrelevant.
The fact that
Mr Makhotla was dismissed at a time when in seven days’
time his contract of employment with Toyota would have come to an
end
by his resignation and he would have left Toyota’s employ is
highly relevant if his dismissal dispute is arbitrated or
adjudicated
after the date when he would have left Toyota’s employ had he
not been dismissed.
[145] The same
applies to a case where an employee was employed on a fixed term
contract of employment and he is dismissed before
the expiry of that
contract but the dismissal dispute is arbitrated or adjudicated after
the date when, but for the dismissal,
his contract of employment
would have come to an end. Another example is where an employee
is dismissed but, after his or
her dismissal but before the dismissal
dispute is adjudicated or arbitrated, a retrenchment exercise occurs
in the company and
it is clear that, applying fair and objective
selection criteria, the employee would have been one of the employees
selected for
dismissal for operational requirements.
[146] In this
scenario the employee may not be reinstated when the original
dismissal dispute is adjudicated or arbitrated.
This is because
his or her contract of employment would have come to an end prior to
the date of the award had the dismissal not
occurred.
[147] Another
example is where an employee is dismissed a short time before he or
she is due to reach a contractually agreed retirement
age and he or
she would have left the employer’s employ on retirement on the
agreed date in any event had he or she not been
dismissed. In
other words, a dismissal occurs on a certain date and between that
date and the date of the arbitration or
adjudication of the dismissal
dispute, there is a date on which the employee would, by prior
agreement with the employer, have
gone on retirement. In such a
case reinstatement would also be incompetent.
[148] In all the
above examples reinstatement is incompetent. This is because
reinstatement means that the employee must be
put in the position in
which he or she would have been, but for the dismissal. The
position in which each one of the employees
in the above examples
would have been in but for the dismissal is out of the employer’s
employ. This is so because,
had the employee not been
dismissed, he or she would have left the employer’s employ
prior to the issuing of the arbitration
award.
[149] The view I
have expressed above, that the remedy of reinstatement is not
competent in the above examples, is in line with
the jurisprudence of
the Labour Court. In terms of the jurisprudence of the
Labour Court reinstatement cannot be granted
where the employee would
not have continued in the employer’s employ.
[88]
[150] In
Tshongweni
[89]
the applicant had been employed on a fixed-term contract of
employment. He was dismissed for misconduct nine months before
the expiry of his contract of employment. His dismissal dispute
was adjudicated long after the expiry of the nine months
that he was
still to serve in terms of his contract of employment when he was
dismissed. His dismissal was found by the Labour
Court to have
been substantively unfair and he sought reinstatement and much more.
The Labour Court rejected his prayer for
reinstatement and more.
It said that, since his contract of employment would have remained
only for nine months from the
time of his dismissal and that period
had long expired, reinstatement would not be practicable and was not
competent. Through
Van Niekerk J, the Court said:
“This is a big ask. All the authorities referred to
suggest that the remedy of reinstatement is confined to reinstatement
into the contract of employment in existence on the date of
dismissal. In my view, if the duration of that contract was
limited, and the expiry of the contract precedes the date on which a
finding of unfair dismissal is made, reinstatement is not a
competent
remedy.”
[90]
[151] The Labour
Court concluded in
Tshongweni
that the applicant in that
matter should be awarded compensation equal to the remuneration that
he would have earned for the nine
months still remaining in his
contract of employment at the time of his dismissal. Those were
the only months that he would
have worked for his employer had he not
been dismissed. It said:
“The court has a discretion in this regard, which must be
exercised judicially having regard to all the relevant facts, and
ensure that the requirements of fairness are met. In the
present instance, the most material fact is the applicant’s
engagement on a fixed term, and that as at the date of his dismissal,
the contract had some nine months to run. In these
circumstances, and in accordance with the authorities referred to
above,
an award of compensation equivalent to what the applicant
would have earned had he remained employed for the full period of
five
years
is [not] appropriate.”
[91]
(Emphasis added.)
The last sentence of
this passage in the judgment does not have “not” before
the word “appropriate” but
a reading of the facts and the
whole judgment makes it clear that the learned judge could not have
intended to say “appropriate”
in that quotation. He
meant “is not appropriate”.
[152] In
Nkopane
[92]
the Labour Court held that there was no basis in law or equity for
the award of compensation for a period that went beyond the
date when
a fixed term contract would have ended.
[93]
In
Zilwa
[94]
the employee had been employed to perform duties during the life of a
cleaning contract that the employer had been awarded in respect
of
certain buildings. She was dismissed before the expiry of that
contract. However, by the time that her dismissal
dispute was
arbitrated, the employer no longer had that contract. The CCMA
Commissioner found the dismissal substantively
and procedurally
unfair and ordered her reinstatement. In a subsequent review
application, the Labour Court, through Le Roux
AJ, held that the
arbitrator had exceeded his powers by ordering reinstatement in that
case because reinstatement was not practicable.
[95]
The Court also said:
“In summary, I therefore find that in deciding to reinstate Ms
Matambela without considering the provisions of
section 193(2)
and
the possible implications of the fact that the Merino Building
contract had been cancelled the second respondent did not apply
his
mind to the relevant facts and the applicable legal principles.
He therefore committed a gross irregularity and exceeded
his powers
as envisaged in
section 145
of the Act. In doing so he also
came to a decision to which a reasonable commissioner could not
come.
Sidumo & Another v Rustenburg Platinum Mine Ltd &
others
(2007) 28 ILJ 2409 (CC);
[2007] 12 BLLR 1097
(CC) at paras
110 et seq and 258 et seq.”
[96]
The Labour Court
drew attention to the provision of
section 193(2)
to the effect that
reinstatement may not be granted where reinstatement is not
practicable. It held that in such a case reinstatement
was not
competent. It set aside the award of reinstatement.
[153]
Cash
Paymaster
[97]
was another case involving the dismissal for misconduct of an
employee employed on a fixed term contract before the expiry of his
fixed term contract of employment. By the time his dismissal
dispute was arbitrated, the contract of employment was one month
away
to its expiry date. It is not clear from the judgment whether
the award was issued before or after the date of expiry
of the
contract of employment. However, what is said in the judgment
is that the arbitration award extended the contract
of employment
beyond the date of its expiry. The Court held that the
Commissioner had exceeded her powers in this regard
ordering
reinstatement in that case. The Court set aside the part of the
arbitration award which extended the contract of
employment beyond
the period agreed to between the parties. The Court replaced
that part of the award with an order for the
employer to pay the
employee an amount equivalent to the employee’s remuneration
for the unexpired portion of the contract.
[154] Even during
the 1980’s it appears that the understanding was the same.
In
Crabtree
[98]
the employee was dismissed after he had indicated, in the context of
discussions on restructuring in the company, that he was not
interested in any position other than a certain position that had
been given to someone else. In Court he sought reinstatement
but the Court refused to reinstate him on the basis that he would not
have continued working for the company because he had indicated
that
he no longer wanted to continue working for the company if he was not
given the position that had already been given to someone
else.
In this present case Mr Makhotla was dismissed at a time when he had
already indicated in his letter of resignation
that he no longer
wanted to continue in Toyota’s employ beyond 31 March 2011.
The Commissioner failed to apply his
mind to the fact that, but for
the dismissal, Mr Makhotla would have left Toyota’s employ on
31 March 2011. Nor did
he apply his mind to what the
implications thereof were on remedy. He also did not apply his
mind to the provisions of
section 193(2)(c).
[155] The statement
by this Court in
Equity Aviation
that the aim of a
reinstatement order is to put an employee in the position in which he
or she would have been in had it not been
for the dismissal reflects
the general understanding of the aim of reinstatement. A
reinstatement order is not intended to
put the employee in a position
in which he would not have been had he not been dismissed. That
means neither a less disadvantageous
position nor a more advantageous
position than the one in which he was or would have been in had he
not been dismissed.
[156] When all is
said and done what remains is that, had Mr Makhotla not been
dismissed on 24 March 2011, his contract of employment
with Toyota
would have come to an end on 31 March 2011 as a result of his
resignation. He would not have continued in Toyota’s
employ beyond that date and he would not have earned any remuneration
from Toyota for the period from 1 April 2011 to the date
when the
arbitration award was issued. Therefore, he ought not to be
treated as an employee who would have continued in Toyota’s
employ or who would have continued to earn remuneration from Toyota
after 31 March 2011. The Commissioner’s award that
Toyota
reinstate Mr Makhotla in its employ and pay him a back pay of six
months totalling R218 400 does exactly this.
[157] The normal
reason why in dismissal disputes the Labour Court and arbitrators
order the reinstatement of an employee who has
been found to have
been dismissed for no fair reason is that, had the employer not
dismissed the employee, the employee would have
continued in the
employer’s employ during the period from dismissal to the date
of reinstatement. The reason why arbitrators
and the Labour
Court make reinstatement orders retrospective in their operation is
that they believe that, had the employer not
dismissed the employee,
the employee would have continued to earn remuneration from that
employer between the date of dismissal
and the date of the award.
[158] When the
factual position is that, had the employer not dismissed the
employee, the employee would not have continued in that
employer’s
employ and would, therefore, not have earned any remuneration from
that employer in the post dismissal period,
there can be no
basis for a reinstatement order. There can also be no basis for
an order for the payment of back pay in such
a case. In this
case the Commissioner ordered Toyota to pay Mr Makhotla remuneration
that he would not have earned from Toyota
had Toyota not dismissed
him. He would not have earned that remuneration from Toyota
because his resignation would have taken
effect on 31 March
2011. Quite clearly, the Commissioner did not apply his mind to
this crucial aspect of the case.
An award that an employer
reinstate with back pay an employee who would not have been in the
employer’s employ during the
relevant period because his
resignation would have taken effect in the meantime is an
unreasonable award. If he was entitled
to anything, it was only
pay for seven days from 25 to 31 March 2011.
[159] If an
arbitrator grants an award for the employer to reinstate an employee
whose resignation would have taken effect, or,
whose fixed term
contract would have expired, on a date between the date of dismissal
and the date of the arbitration award, he
makes an award with which
the employer cannot practically comply. This is because, but
for the dismissal, that employee would
have been out of the
employer’s employ as a result of his resignation. So,
bearing in mind the meaning of the word
“reinstate” in
Equity Aviation
, how does the employer comply with such an
order?
[99]
In such a case it is not reasonably practicable for the employer to
reinstate the employee within the meaning of
section 193(2)(c)
of the
LRA as interpreted by this Court in
Equity Aviation
.
[100]
Such an order is incompetent and cannot be practically given effect
to.
[160] In my view, if
an award of reinstatement is made in a case such as the present and
the employer were not to comply with it
on the basis that it cannot
put the employee in the position in which he would have been but for
the dismissal and contempt of
court proceedings were instituted, the
employer would have a complete defence of impossibility of
performance. He could legitimately
say: “in terms of
Equity Aviation
an award of reinstatement requires the
employer to put the employee in the position in which, but for the
dismissal, the employee
would have been. In this case, but for
the dismissal, the employee would have been out of my employment on
the basis of a
resignation. He would not have been in my employ
by now and I cannot put him in my employ because that would not be to
reinstate
him. To put him in my employ would be to put him in a
position in which he would not have been but for the dismissal.”
[161] Instead of
making the reinstatement order and the order for the payment of
R218 400 to Mr Makhotla, the Commissioner
should have awarded Mr
Makhotla compensation limited to the seven days’ remuneration
he would have earned for the period
25-31 March 2011 when his
resignation would have taken effect. Instead, the Commissioner
gave him a permanent job with Toyota
which he would not have had if
he had not been dismissed. As if that was not enough, the
Commissioner ordered Toyota to give
Mr Makhotla what is in effect a
“golden handshake” to which he was not entitled and which
he would not have got had
he not been dismissed. If this award
is allowed to stand, Toyota may have to end up paying Mr Makhotla
around R2 million
or even more as it was in September 2011 when
the Commissioner ordered that he be reinstated and the further
litigation has prevented
him from going back to Toyota and work and
earn his remuneration.
[162] The
Commissioner’s approach was simply that the dismissal was
substantively unfair and the employee had to be reinstated.
That a dismissal is unfair does not mean that a reinstatement order
must necessarily be made. An arbitrator must apply his
mind to
the provisions of
section 193(1)
and (2) of the LRA. In making
the reinstatement order in this case and in ordering Toyota to pay Mr
Makhotla six months’
remuneration in the amount of R218 400,
the Commissioner exceeded his powers, committed a gross irregularity
and made an order
that no reasonable decision maker could have made.
It is an order that the Labour Court ought to have realised had
reasonable
prospects of being reviewed and set aside.
[163] Apart from the
application that the union and Mr Makhotla brought in the Labour
Court for an order dismissing Toyota’s
review application, they
also brought an application to have the Commissioner’s
arbitration award made an order of the Labour
Court. The Labour
Court made that arbitration award its order in terms of
section 158
of the LRA. If the arbitration award is incompetent, it is
because the Commissioner issued it contrary to
section 193(1)(c)
, the
Labour Court should not have made it its order and should have
dismissed the union’s application to make it an order
of
court. The Labour Court may not make incompetent arbitration
awards its orders. On that ground alone the matter
should be
remitted to the Labour Court to allow remaining affidavits to be
delivered so that the review application can be adjudicated
on the
merits to avoid a situation where a litigant – Toyota –
is burdened with an incompetent arbitration award that
has been made
an order of Court.
[164] It would seem
that in some cases the Labour Court has taken the attitude that,
where the record provided by the CCMA is incomplete
and it is not the
fault of the parties but that of the CCMA, the CCMA’s failure
to ensure that there was such a complete
and proper record was an
irregularity itself and used that to set aside the award and remit
the dispute to the CCMA to be arbitrated
afresh. Some of these
cases are
Uee-Dantex
;
Shoprite Checkers
;
[101]
and
Balasana.
[102]
[165] In
Balasana
,
relied upon by Toyota in the Labour Court, the Court set aside an
arbitration award because the arbitrator had failed to keep
proper
notes and never told the parties that he was not recording the
proceedings mechanically. In other words, the absence
of the
record was the fault of the arbitrator. The Labour Court was
referred to this case but sought to distinguish it.
The
principle that can be extracted from that case is equally applicable
to the present case. The fact of the matter is that
in that
case, as in this case, the person who was supposed to ensure that
there was a proper and complete record of the arbitration
proceedings
did not do his or her job. In this case the CCMA and the
Commissioner were supposed to ensure that there was
a proper and
complete record of the arbitration proceedings and they failed to
perform their job. Therefore, on the basis
of that case, and
the other cases such as
Uee-Dantex
and
Shoprite Checkers
,
Toyota’s attitude was not unreasonable. It was a view
that enjoyed some judicial support.
[166] It may be
recalled that
section 145(1)
of the LRA provides that “[a]ny
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices
of the Commission may apply to the
Labour Court for an order setting aside the arbitration award”.
In subsection (2)
it is provided that:
“A defect referred to in subsection (1) means—
(a) that the commissioner—
(i)
committed misconduct in relation
to the duties of the commissioner as
an arbitrator;
(ii)
committed a gross irregularity in the
conduct of the proceedings; or
(iii)
exceeded the commissioner’s powers”.
[167] In
Boale
although the Labour Court held that a review application should
be dismissed where the record is incomplete because the review
applicant
failed to provide a full transcript of the arbitration
proceedings, it held that an exception would be a case where “the
tape cassettes are missing or where the parties are unable to
reconstruct the record”.
[103]
The present case falls within this exception. In
Nathaniel
the Court refused to set aside the award and remit the dispute
simply because the record was incomplete despite the fact that the
parties had gone to great lengths to reconstruct the record,
including the perusal of their lawyers’ notes, the
commissioner’s
notes and the employment of a specialist
transcriber to re-assess the tapes.
[104]
[168] It is the duty
of a commissioner of the CCMA conducting an arbitration to ensure
that a proper and complete record of those
proceedings is kept and,
together with the CCMA, to ensure that, if subsequently, there is a
review application, a proper and complete
record is made available to
the Registrar of the Labour Court. It may well be that a
failure by a commissioner to perform
this important function
constitutes misconduct or a gross irregularity in the proceedings as
envisaged in
section 145(2)(a)
and (b), respectively. If that
is so, then it would be possible to have an award reviewed and set
aside on either of these
two grounds in
section 145(2)(a)
and (b) if
a commissioner failed to perform this function. I mention this
without expressing a definitive view since this
was not argued.
If Toyota had relied upon this as one of the grounds of review, the
Court may have had to give careful consideration
to the point.
[169] The above
cases show that there is uncertainty on what the position is when the
situation which happened here in terms of
the record arises.
Toyota should not be condemned since there are conflicting judicial
opinions on what the correct position
is. The correct approach
is that the parties should simply deliver affidavits setting out to
the best of their recollections
what happened at the arbitration and
the court should resolve different versions by oral evidence.
However, this approach
was rejected by the Labour Court in
Fidelity
.
[105]
In the latter case, too, it seems that the Labour Court would not
have dismissed the review application if the case was that
the CCMA
had lost the tapes which is what seems to have happened in this case.
[170] I now proceed
to deal with certain points raised in Wallis AJ’s judgment
(concurrence) in which he concurs in the majority
judgment. It
is of vital importance that a proper balance be struck between, on
the one hand, the need for the expeditious
resolution of disputes and
the need for the effective resolution of disputes that have arisen
between parties. One of the
primary objects of the LRA is the
effective resolution of disputes.
[106]
In my view this judgment strikes a proper balance between the
two factors by not having regard only to the need for the expeditious
resolution of disputes but also by properly taking into account all
relevant factors including prejudice, the merits and the need
for the
effective resolution of disputes. In this case there was a
dispute between the parties about whether the arbitration
award
issued by the Commissioner was reasonable, fair and lawful which, as
administrative action, it was required to be.
[107]
That dispute was not resolved on the merits because the Labour Court
wrongly took the view that Toyota had “done
nothing for 18
months” to improve the record and it failed to take into
account the issue of prejudice to Toyota if it dismissed
the review
application without the merits being adjudicated.
[171] In his
concurrence in the majority judgment, Wallis AJ expresses the view
that Ms Edy’s evidence that the Commissioner
prevented
Toyota from adequately cross examining Mr Makhotla on his
conflicting explanations was hearsay. There is no
proper basis
for this view. Ms Edy clearly states in Toyota’s founding
affidavit:
“
The facts contained herein are
, to the best of my
knowledge,
both true and correct
.
The facts are
further within my own personal knowledge
, save where the
context clearly indicates otherwise”. (Emphasis added.)
Nobody deposed to an
affidavit and said that those facts could not have been within Ms
Edy’s personal knowledge because she
was not present at the
arbitration proceedings. In those circumstances, Ms Edy’s
statement cannot be hearsay.
[172] The concurring
judgment also says that a letter in the record addressed by Toyota’s
attorneys to the transcribers reflected
Mr Kilian as the sole
representative of Toyota at the arbitration. Reliance on the
fact that Ms Edy’s name does not
appear in that letter as a
reason to justify the conclusion that Ms Edy did not attend the
arbitration is, with respect, difficult
to understand. First,
there is no reason to suggest that the purpose of that letter,
addressed as it was to the transcribers,
was anything more than to
inform the transcribers who Toyota’s official representative in
the arbitration was.
[173] The letter
does not purport to inform the transcribers of anyone else from
Toyota who may have been with Mr Kilian at the
arbitration but was
not an official representative of Toyota. All of us know of
many situations in practice where an advocate
or attorney goes to
court or to an arbitration with someone, for example, a candidate
attorney, a para-legal or a member of the
firm’s administrative
staff and such person does not get reflected in the record of the
proceedings because his or her presence
was not official. The
same could have happened in Ms Edy’s case. Therefore, the
view that Ms Edy did not attend
the arbitration and that her evidence
is hearsay is without any merit and is based on speculation.
There would also have
been no basis for the Labour Court to reject Ms
Edy’s undisputed evidence that she had personal knowledge of
the facts to
which she deposed.
[174] What counts in
determining whether the Labour Court was required to take Toyota’s
evidence as true is that there was
no one, whether the Commissioner
or someone else, who filed an affidavit disputing the averment in
Toyota’s founding affidavit.
The motivation for the
decision of the Commissioner or that of the union not to file an
affidavit disputing Toyota’s evidence
is irrelevant. The
fact of the matter is that neither filed an affidavit disputing
Toyota’s evidence that the Commissioner
prevented it from
adequately cross-examining Mr Makhotla on his contradictory
explanations. Furthermore, no reliance can
be placed upon the
Commissioner’s notes to contradict Ms Edy’s evidence
given under oath that the Commissioner prevented
Toyota from
adequately cross-examining Mr Makhotla on his contradictory
explanations. First, everybody accepts that the Commissioner’s
notes are not necessarily a true reflection of what occurred in the
arbitration proceedings. Second, definitely Toyota disputes
their accuracy and nobody, including the Commissioner and the union,
deposed to an affidavit saying that those notes are a true
reflection
of what happened in the arbitration proceedings.
[175] It is true
that, generally speaking, an arbitrator does not depose to an
affidavit when his or her award is taken on review.
However,
this is a general rule to which, as is the case with all general
rules, there are exceptions. When an allegation
is made about
the conduct of an arbitrator during arbitration which implies on the
face of it unacceptable conduct or partiality,
the arbitrator would
be expected to file an affidavit.
[176] The averment
in Toyota’s affidavit that the Commissioner had prevented
Toyota from adequately cross-examining Mr Makhotla
on his conflicting
explanations which was the most crucial part of Toyota’s case
would impute improper conduct on the part
of the arbitrator unless it
was explained or justified. The need for an arbitrator to file
an affidavit to either deny the
allegations or explain or justify his
conduct was greater in this case as there was no transcript of the
arbitration proceedings
on which the Commissioner could rely to
reflect the correct picture if he did not file an affidavit.
[177] The
concurrence says that it is difficult to comprehend a case where
resignation takes place before dismissal. The answer
is
simple. In the present case that would have happened if on 24
March 2011 the chairman of the disciplinary inquiry had,
after
finding Mr Makhotla guilty of misconduct, adjourned the disciplinary
hearing to after 31 March 2011 for mitigation and had
decided at some
stage in April 2011 to dismiss Mr Makhotla. By then Mr
Makhotla’s resignation would have taken effect
on 31 March
2011. Mr Makhotla could have sought reinstatement because he
would have changed his mind about resignation
but would have done so
too late.
[178] If an employee
communicates to the employer a decision to resign from the employer’s
employ, our law is clear.
It is that whether the resignation
takes effect or not does not depend on the employer’s
acceptance or rejection of the employee’s
resignation.
Not only is there a long line of cases which support this view both
before and after the advent of democracy
but also this view is
supported by a number of academic writers.
[108]
[179] The principle
that resignation is a unilateral act and, once given, it cannot be
withdrawn except with the consent of the
employer is also to be found
in the law of lease. Kerr, in
The Law of Lease
expresses
the view thus in the context of a lease: “Notice is a
unilateral act and once given it is final – it cannot
be
withdrawn, except with the consent of the other party, not even if it
was given in advance and the period of the lease with
which it is to
run has not yet commenced.”
[109]
In fact, in his work:
Labour and Employment Law
, MJD Wallis SC
articulates this principle thus:
“The giving of notice is a unilateral act requiring no
acceptance by the recipient for it to be effective.
Consequently notice once given cannot be withdrawn except by
agreement
.”
[110]
(Emphasis added.)
[180] In the light
of the above principle, the fact that Toyota said to Mr Makhotla that
it did not accept his resignation did not,
as a matter of law, change
anything regarding the resignation. Had Mr Makhotla not been
dismissed on 24 March 2011, his resignation
would have taken effect
on 31 March 2011 in the same way it would have done if Toyota had
said nothing to Mr Makhotla about the
resignation. Therefore,
the position is simply that, but for his dismissal on 24 March 2011,
Mr Makhotla would have left
Toyota’s employ on 31 March 2011.
After all, in saying that it did not accept the resignation, Toyota
did not seek
to convey that it was still keen to continue an
employment relationship with Mr Makhotla. The context in which
this was said
makes it clear that Toyota realised that Mr Makhotla
was trying to use the resignation to avoid facing a disciplinary
inquiry and
Toyota meant that would not stop it from subjecting him
to a disciplinary inquiry for his breach of workplace discipline.
[181] The
concurrence further states that it appears that Mr Makhotla may have
sought to withdraw his resignation in this case.
This statement
is not supported by any evidence whatsoever on record. At no
stage before his dismissal did Mr Makhotla approach
Toyota and
attempt to withdraw the resignation. If he had attempted, his
withdrawal would only have been effective in law
if Toyota granted
its consent. The concurrence says: “In those
circumstances there may have been an agreement, express
or tacit, to
permit Mr Makhotla to withdraw his resignation. We cannot tell
because the point was not canvassed”.
[111]
There is no basis for the suggestion that Mr Makhotla may have tried
to withdraw his resignation. Mr Makhotla testified
that he
submitted his resignation because he was angry. If there had
been any subsequent agreement between the parties that
he could
withdraw the resignation, he would have mentioned that at the stage
of his evidence. He did not.
[182] In determining
what the appropriate remedy was, the Commissioner was obliged to have
regard to all the relevant facts of the
case including the fact that
Mr Makhotla was dismissed at a time when he was serving a notice
period and was left with seven
days before his contract would come to
an end by resignation. The Commissioner was obliged to take
this into account irrespective
of whether anybody had raised it.
He was so obliged because (a) he was legally required to issue a
reasonable award and (b)
if he did not apply his mind to this, he
could easily issue an unreasonable award. This is what actually
happened because
he failed to apply his mind to these facts. He
was also obliged to take that fact into account in order to satisfy
himself
that he was not dealing with a situation falling under
section 193(2)(c)
of the LRA. That is a situation in which
reinstatement is not competent because it is not practicable.
[183] The last point
dealt with in the concurrence is the proposition I make in this
judgment that “an employee has no right
of withdrawing a valid
and lawful resignation once it has been communicated to the employer
except with the consent of the employer”.
The concurrence
proceeds from the premise that this principle only finds support in
so-called “old cases”.
That is not true.
There are also cases handed down by various courts after the advent
of democracy which support or affirm
the principle. Not every
principle that existed prior to the advent of democracy was bad.
In fact in labour and employment
law there are many principles which
existed before 1994 which we took over into the era of democracy.
[184] This principle
enables an employee to leave an employer’s employ easily when
he or she wants to because it says that
whether his resignation takes
effect or not will not depend on the employer’s blessing.
The principle says the employee’s
resignation will take effect
even if the employer says to the employee: “You are not going
anywhere!” The concurrence
seems to advocate the opposite
of this principle. The opposite of this principle would be to
the effect that, when an employee
communicates to his or her employer
his or her decision to resign, his or her resignation will not take
effect unless the employer
gives its consent. In
Sihlali
the Labour Court emphatically rejected the proposition that the
employer’s consent is required before an employee’s
resignation may take effect. These are the terms in which it
rejected the proposition:
“If a resignation were to be valid only once it is accepted by
an employer, the latter would in effect be entitled, by a
simple
stratagem of refusing to accept a tendered resignation, to require an
employee to remain in employment against his or her
will. This
cannot be – it would reduce the employment relationship to a
form of indentured labour.”
[112]
A situation where an
employer could force an employee to continue to work for him against
his will is difficult to reconcile with
this country’s current
constitutional values.
[185] In any event
our law provides employees with protection even where they have
resigned voluntarily if their employer has made
continued employment
intolerable. Under the LRA, that constitutes constructive
dismissal and the LRA has a remedy for it.
Our law also
provides protection for a situation where an employee sent the
employer a resignation letter but changes his or her
mind before the
letter reaches the employer. In such a case the employee may
unilaterally withdraw the resignation by informing
the employer to
disregard such a letter when it arrives. The
ANC
case
[113]
is a good example of a case where a resignation was withdrawn
unilaterally before the resignation letter could be read by the
Municipal Manager and as a result of the withdrawal the resignation
did not take effect. Then our law says that, where the
resignation has reached the attention of the employer, the employee
may not withdraw it unilaterally but can only withdraw it with
the
consent of the employer. Accordingly, our law provides for all
three situations and in all three situations it cannot
be said that
the law is unfair on the employee. The employee must simply
make sure that he or she does not make a decision
to resign and
communicate it to the employer without carefully considering whether
that decision is what he or she wants.
[186] I am of the
view that the problem of missing tapes and incomplete records of
arbitration proceedings conducted under the auspices
of the CCMA and
bargaining councils has been going on for too long. I do not
know what has been done to deal with it but
it seems to be going on.
It seems to me that the CCMA and bargaining councils may require some
guidance in this regard to
try and avoid or minimise these problems.
[187] In order to
try and minimise the risk of incomplete or missing records of
arbitration proceedings, both the CCMA and bargaining
councils may
wish to consider adding the following measures to whatever measures
they have put in place:
(a) at the commencement of every arbitration the parties and the
arbitrator should inspect the recording machine or device to satisfy
themselves that it functions properly; the arbitrator and the parties
should sign a certificate to confirm that they did this and
the
machine was working properly at the commencement of the arbitration;
(b) on the morning of each day on which the arbitration continues the
arbitrator must also inspect the machine satisfy himself
or
herself that it is still functioning properly;
(c) sometime around the middle of the day when the arbitration
proceedings continue, the arbitrator must again satisfy himself
or
herself that the recording machine is still functioning properly;
(d) at the end of each day the arbitrator must again check that the
machine is still functioning properly;
(e) at the end of the arbitration proceedings the arbitrator should
once again check that the recording machine was still functioning
properly when the hearing came to an end and sign a certificate to
the effect that during the proceedings he or she inspected the
functioning of the recording machine at the given intervals and on
each occasion found the machine to be functioning properly or
not
properly, as the case may be. Where he found it not functioning
properly, he or she should state this and set out the
steps that he
or she took to have the situation rectified; and
(f) at the end of the arbitration proceedings or when the arbitration
is postponed, the arbitrator must, if he or she hands over
the tapes
and other documents to anybody such as employees of the CCMA or of a
bargaining council, certify to whom he or she handed
them over, when
that was and such person must also sign a certificate confirming
this.
[188] The above
steps will make sure that, where the recording machine does not
function properly, this is picked up early and,
if need be, it is
rectified before it is too late. These steps will ensure that
somebody can be held accountable to the parties
if the tapes and
other documents go missing or get lost after the arbitration
proceedings have run their course or between postponements.
Courts should not have the situation we have had in this case where
the CCMA could not tell us what happened. It and the
Commissioner have not told us whether the recording machine was
functioning properly throughout the arbitration proceedings or
whether it stopped functioning at a certain stage and nobody
noticed. They also cannot tell us whether what has caused this
problem is something that happened to the tapes in the
post-arbitration period. We have not even been told whether the
CCMA
investigated this matter and established whether it occurred
because of any failure by any of its employees to do his or her job
and what steps have been taken against such an employee.
[189] Courts should
start to be very strict and firm with the CCMA and bargaining
councils with regard to their duty to ensure that
proper and complete
records of arbitration proceedings conducted under their auspices are
kept. In appropriate cases costs
orders against the CCMA and
bargaining councils may have to be seriously considered if this
problem persists and no proper explanation
is placed before the Court
as to what reasonable steps were taken to avoid it.
[190] I would grant
leave to appeal, uphold the appeal, set aside the orders made by the
Labour Court and replace them with orders
dismissing the union’s
application to have Toyota’s review application dismissed
without the adjudication of the merits
and also dismissing the
union’s application to make the arbitration award an order of
the Labour Court. I would then
put the parties on terms for the
further conduct of the review application in the Labour Court.
I would not make any order
as to costs.
WALLIS AJ (Cameron J and Van der Westhuizen J concurring):
[191]
I concur in the main judgment prepared by
Nkabinde J. With respect, whilst I have no quarrel with many of
the principles in
the judgment of Zondo J, I think it unduly
discounts the extraordinary delays in Toyota pursuing the review in
the Labour Court
and its
failure
to
provide any explanation for those delays. As the main judgment
stresses, the aim of the LRA was to ensure that labour disputes
were
dealt with expeditiously, and protracted review proceedings pursued
in a desultory manner, as in this case, undermine that
purpose.
I have some sympathy for my colleague’s criticisms of the
commissioner’s approach to the merits of the
dispute over
dismissal, but there comes a time in any case where a party’s
disregard for procedure and delay in pursuing
the matter is so
extensive that they will be penalised irrespective of the merits of
the case. But that is not the reason
for this concurrence.
I write for two reasons. First, to deal with the conclusion by
Zondo J that Toyota had reasonable
prospects of showing that there
was a gross irregularity in the arbitration before the CCMA, on the
ground that the commissioner
prevented Toyota’s representative
from cross-examining Mr Makhotla. An aspect of this is my
colleague’s view
that the commissioner should have delivered an
affidavit to deal with that allegation. Second, to express
reservations about
my colleague’s approach to the legal effect
of an employee’s resignation.
Gross
irregularity
[192]
In the application for review of the CCMA
award, Toyota advanced as one of its grounds of review that the
arbitrator prevented its
representative from cross examining Mr
Makhotla on the differing explanations he advanced at different times
for his absence.
I agree with Zondo J that, if the commissioner
did that, it would have been a gross irregularity in the conduct of
the arbitration.
We part company in regard to his finding that
Toyota’s allegations in this regard had to be accepted by the
Labour Court
in the absence of any rebuttal from the
commissioner.
[193]
Mr Kilian, Toyota’s Senior
Industrial Relations Manager, represented it at the arbitration.
But the affidavit deposed
in support of the review emanated from Ms
Edy, who is employed by the company as an Industrial Relations
Specialist. There
is nothing to indicate that she played any
role in the arbitration or was present during the hearing and the
arbitrator’s
award does not reflect her participation. A
letter in the record addressed by Toyota’s attorneys to the
transcribers
of the record reflected Mr Kilian as the sole
representative of Toyota at the hearing. Ms Edy’s
evidence on the
point was accordingly
on its face
both
hearsay and not the best evidence of what occurred,
notwithstanding her claim (one inserted by lawyers as a matter of
routine in affidavits) to have personal knowledge of the matters
to
which she was deposing
. Singularly absent
from the papers is an affidavit from Mr Kilian explaining exactly
what happened and what he did about
it.
[194]
The need for such an affidavit was clear.
In the award the commissioner dealt expressly with Mr Kilian’s
contention
that Mr Makhotla had furnished three different and
inconsistent explanations for his absence from work. He
referred to the
cross examination of Mr Makhotla and said that
the latter had throughout insisted that the only reason for his
absence was
that he had to rescue some abducted girls. On this
basis he held that Mr Makhotla had not provided three conflicting
reasons
for his absence. That there was indeed
cross-examination on this topic is apparent from his notes, a portion
of which is
quoted in [48] of the main judgment. Was the
commissioner lying when he said that and were his notes adapted to
accommodate
the lie? Unsurprisingly, Toyota does not make that
allegation.
[195]
More pertinently, in Mr Kilian’s
written argument before the commissioner, when dealing with Mr
Makhotla’s evidence,
under the heading of “cross examination”,
one of his submissions was that:
“
He cannot explain the 3 different reasons
given by him at different times for his absence. 1) Sms – clear
his head –
Ornica 2) not feeling well – Hawkins 3) Girl
abducted – Ornica and enquiry.”
When Mr
Makhotla pointed this out, in his application to dismiss the review
in the light of the delays, it still did not prompt
Toyota to deliver
an affidavit by Mr Kilian. Instead a different Industrial
Relations Specialist, this time Ms Punchoo,
also claiming personal
knowledge of matters, deposed to an affidavit in which she simply
said that it was denied that the closing
argument proved that there
had been cross examination. She was the deponent to the
affidavits in this Court. At no stage
did she or Ms Edy claim
to have been present during the arbitration.
[196]
Toyota
was aware that Mr Makhotla and the union disputed these allegations.
They had said as much at the meeting to reconstruct
the record on 28
November 2012. There was therefore an urgent need to obtain an
affidavit from Mr Kilian to substantiate
these hearsay and disputed
allegations, but none was produced in the eight months that followed
before the application to dismiss
came before the Labour Court,
and none was produced in these proceedings.
But Zondo
J’s judgment does not deal with, much less place any store by,
the absence of an affidavit from Mr Kilian.
[197]
Despite these gaping deficiencies in
Toyota’s case on this point, my colleague would hold that the
Labour Court was obliged
to accept them at face value in the
application for dismissal, because there was no affidavit before it
from the commissioner disputing
the allegation that he prevented
cross-examination on this topic. He builds upon that to make a
finding that Toyota had reasonable
prospects of showing that this
constituted a gross irregularity in the arbitration proceedings
before the CCMA. I disagree
and, in particular, disagree with
the suggestion that it was appropriate for the commissioner to
intervene in these proceedings
for that purpose. Such an
intervention by an arbitrator is most unusual and frequently
undesirable because the arbitrator
should be above the fray. An
intervention, in effect in support of the award, may be seen as
evidence of partiality.
[198]
The conventional approach is for the
arbitrator to abide the decision of the court on an application for
review or the setting aside
of the award. Those with vast
experience of review proceedings in the Labour Court directed at
challenging CCMA awards
will know better than I whether it is common
for commissioners to file affidavits and seek to rebut review grounds
where no order
is sought against them personally, but my impression
is that this is extremely rare
and my colleague does not
suggest otherwise
. It is equally rare in
regard to applications to set aside conventional arbitration awards
under the Arbitration Act.
[199]
An arbitrator is properly cited in any
decision to review the award. Their participation in the
proceedings is, however, unusual.
[114]
Where they do not enter the lists that is not an acknowledgment that
the allegations made in regard to their award, be they
of gross
irregularity or otherwise, are admitted. All that their
abstention means is that they are willing to abide the court’s
adjudication of the review without taking sides. That is very
frequently done because the arbitrator wishes to avoid any
impression
of partiality or defensiveness over the award and knows that the
successful party to the arbitration can rebut the complaints
made by
the applicant. That was the case in this instance. For
all we know, had the time come for Mr Makhotla to deliver
his
opposing affidavit – and, as explained in the main judgment,
that time had not yet come – an affidavit would have
been
sought from the commissioner on this point. In those
circumstances I am unable to agree with my colleague when, in [53]
of
his judgment, he remarks adversely on the commissioner’s
failure to deliver an affidavit, and uses that fact to support
his
approach that there were reasonable prospects of showing that the
arbitrator committed a gross irregularity. In my view
that
finding is not one that can be made in this case.
Resignation
[200]
My second concern arises from my
colleague’s discussion of the implications of Mr Makhotla
having tendered his resignation
on 7 March 2011, after he had been
apprised of the fact that Toyota intended to pursue disciplinary
proceedings against him arising
from his absence without leave.
I start by identifying where we have common ground. If an
employee’s resignation
flows from the employer rendering
continued employment intolerable, that is an unfair dismissal and is
dealt with like any other
unfair dismissal under the LRA. Once
the employee’s employment has come to an end in consequence of
resignation, it
is generally speaking no longer open to the employer
to conduct disciplinary proceedings against the employee, at least
not with
a view to terminating their employment.
[115]
If by the time an unfair dismissal dispute has been resolved the
employee’s employment would have terminated, for example,
because a fixed term contract of employment had expired or they had
passed the age for retirement, it is not open to the commissioner
to
reinstate them.
[201]
In [143] of his judgment Zondo J says: “if,
in the present case, the resignation had preceded the dismissal, the
CCMA would
have had no jurisdiction and an award would not have been
competent because an employee who resigned cannot be reinstated”.
But it is difficult to comprehend on what basis such an employee
would be seeking their reinstatement.
Apparently
the suggestion is that there may have been a change of heart after
the resignation took effect, but that is rare and
the claim for
reinstatement would fail.
If the
employee claimed that the employer made continued employment
intolerable, that is an unfair dismissal, but it is the paradigmatic
case where reinstatement is neither sought nor granted. After
all if continued employment has been rendered intolerable the
employee is hardly likely to seek reinstatement. And, if they
have resigned and are content with that, they will also not
do so.
Indeed there would be no basis at all for them to approach the CCMA.
[202]
The only situation where the problem may
arise is a case like the present where the employee has tendered
their resignation, but
is dismissed before the resignation can take
effect. Here there are two possible scenarios. If the
employee seriously
intended to resign and persisted in that stance,
why would they either participate in the disciplinary proceedings
leading up to
their dismissal, or approach the CCMA? Their only
purpose in doing so would be to have the blot of dismissal removed
from
their record, or to avoid the forfeiture of a benefit, or
something similar. They would not be seeking reinstatement.
That leaves only the situation of an employee who tenders their
resignation, but subsequently, and before it has taken effect and
brought about the termination of the contract of employment, repents
of that decision and seeks to withdraw from it. That
appears to
have been the situation with Mr Makhotla.
[203]
The main judgment amply explains in [49]
why this is not a point on which Toyota can rely at this stage.
It is plainly one
devised long after the event, having not featured
at the internal disciplinary hearing; before the CCMA; in either the
founding
affidavit or the supplementary affidavit in the review
application; or before Fourie AJ in the Labour Court. The
evidence
was that the resignation was not accepted and it was not
thought of again until the application for leave to appeal to this
Court.
In those circumstances there may have been an agreement,
express or tacit, to permit Mr Makhotla to withdraw his
resignation.
We cannot tell because the point was not
canvassed.
[204]
My further concern lies with the legal
proposition at the commencement of [144] of Zondo J’s
judgment that “an
employee has no right of withdrawing a valid
and lawful resignation once it has been communicated to the employer
except with the
consent of the employer”. That
proposition is derived from an old case in the then Transvaal
Provincial Division.
[116]
In
Rustenburg
the
town council had met to discuss certain differences that were said to
have arisen between employees in its electricity department.
On
being informed that the differences had been resolved it decided to
take no further action. The following morning
the town clerk
was handed three notices of resignation by various officials in the
electricity department, including the electrical
engineer.
Later that day the engineer called upon the town clerk in his office
and asked to see the letters. They were
handed to him and he
proceeded to destroy them, apparently because he had been advised by
the mayor to withdraw his resignation.
He had authority to act
on behalf of the other two officials. The council then met and
resolved to accept the withdrawal
of the resignations of the other
two, but not that of the engineer.
[205]
Through his trade union the engineer
applied to the Minister of Labour for the appointment of a
conciliation board and such a board
was appointed.
[117]
The council successfully applied for the board to be set aside, on
the basis that the engineer’s employment had terminated
as a
result of his own voluntary act and not as a result of an act by the
council. The Court rejected an argument that the
resignation
had been withdrawn, saying:
“
The giving of notice is an unilateral act:
it requires no acceptance thereof or concurrence therein by the party
receiving notice,
nor is such party entitled to refuse to accept such
notice and to decline to act upon it. If so, it seems to me to
follow
that notice once given is final, and cannot be withdrawn
except obviously by consent”.
[118]
[206]
Potgietersrust
concerned
the matron of a hospital, about whose conduct and performance there
had been complaints. These were considered by
the hospital
board, which then called her into a meeting and asked for her
resignation. She agreed to resign with effect
from 31
December. The chair of the board testified that the matron was
confused at the time. The secretary said that
immediately after
the meeting she sought to withdraw the resignation and make it
effective from the end of January the following
year. The board
refused to permit this, and when she did not leave the premises and
continued to work and interfere with
the duties of the nursing staff,
it brought urgent proceedings for an interdict and her ejectment from
the premises. That
order was granted on the authority of
Rustenburg
.
[207]
Are these old cases still good law in the
light of the constitutional protection that workers now enjoy to fair
labour practices,
[119]
and the injunction that in appropriate cases the court must develop
the common law to give effect to the nature, purport and objects
of
the Bill of Rights?
[120]
There is ample jurisprudence in this Court that not everything that
is old is bad.
[121]
But, while viewing the outcome of cases decided in a different time
and under different circumstances and condemning them
as unfair, may
be facile when done with the benefit of hindsight and dramatic
changes in society, it nonetheless seems to me that
the outcome of
these two cases does not measure up to our modern notions of fairness
in the context of employment.
[208]
Why should an employee, who acts on impulse
and resigns in a fit of pique, be precluded, when tempers have cooled
and common sense
prevails, from withdrawing a notice of resignation
on which the employer has not acted? Why should a notice of
resignation
that the employer refuses to recognise bind the employee,
so that the employer that rejected it may thereafter rely upon it?
That is what occurred in this case. Mr Makhotla’s
superior discussed his resignation with the human resources
department
and the vice-president of the company, and said they
refused to accept it. Toyota insisted on continuing with
disciplinary
proceedings that had been rendered academic, if in truth
they accepted that Mr Makhotla was going to leave at the end of the
month.
That having been their attitude, it hardly lies with
them, at this late stage, to say, as a defence to a claim that he was
unfairly
dismissed, that it does not matter because he had already
decided to leave. And of course if that were the case any award
to him would be minimal. Zondo J describes this as
speculation. But, if that characterisation is correct, that is
because this was not Toyota’s case and these issues were not
explored on the facts at any stage of the proceedings.
They
were raised for the first time in this Court.
[209]
We have not received argument on
these interesting and difficult points. Should the old view be
retained as still applicable
to our day and age? My colleague
obviously thinks it should.
[122]
I am less certain.
[123]
Should it be altered, and, if so, how? I do not suggest (as did
the Labour Court in
Sihlali
)
that a corollary of allowing an employee to withdraw their
resignation would be that the employer, by refusing to accept it,
could force the employee to remain in their employment. One
possibility would be to require the acceptance of a resignation
by
the employer before it became binding on the employee. Another
would be to construe a notice of resignation as precatory
in effect
and capable of being withdrawn up to the point where the employer has
acted on it to its prejudice. A third, consonant
with the
constitutional right to fair labour practices, would be to say that
an employer may not rely upon a resignation that has
been withdrawn,
if it would in all the circumstances be unfair for it to do so.
Conceivably there are other possibilities.
It is
unnecessary and impossible to determine this issue at this stage in
this case. The question must be left open to be
dealt with on
another day and in another case where it more appropriately arises,
preferably after careful consideration by the
Labour Court and
the Labour Appeal Court. In this case, with the
additional remarks expressed above, I concur
in the main judgment,
which addresses all the issues that properly arise for determination
here.
For the Applicant:
For the Third and
Fourth Respondents:
C A Nel instructed by Macgregor Erasmus
Attorneys
W Khoza
[1]
28 of 1956.
[2]
66 of 1995.
[3]
RAWU obo Makhotla v Toyota SA Motors (Pty)
Ltd
[2014] ZALCJHB 527. This judgment
was handed down on 9 July 2014 by Fourie AJ
ex
tempore
(verbally directly after hearing)
(Labour Court
ex tempore
judgment).
[4]
The Code provided that
“[b]eing absent from work without authority (AWOL) without
advising the Company of whereabouts and
failing to provide
acceptable reasons to Management” for “4 days or longer”
is a category 4 offence (meaning
that the first transgression would
result in disciplinary action of dismissal). The Code also
contained a note that: a
“[t]elegram / [r]egistered [l]etter
requesting [the] whereabouts of [the] employee [is] to be sent by
the 3rd day”.
[5]
The notice was dated 1 March 2011.
[6]
Toyota alleges that the decision to dismiss was taken on 24 March
2011 but Mr Makhotla was informed in writing of this decision
on 21
April 2011. However, the document entitled “Disciplinary
Procedure: Enquiry Decision and Reasons” indicated
that the
outcome of the disciplinary enquiry was that Mr Makhotla was
“DISMISSED”, the document is dated 24 March
2011 and is
signed by him. His application to the CCMA also identified 24
March 2011 as the date of his dismissal.
[7]
Ms Mukhavhuli, Ms Malumo (co-ordinator of the Toyota Academy and Ms
Mukhavhuli’s secretary), Ms Hlatshwayo (Toyota’s
HR
manager) and Mr Hawkins (a manager at Toyota).
[8]
Arbitration award at para 5.4.
[9]
Id at para 2.10 and above n 4 for definition as a dismissible
offence.
[10]
The procedural fairness was not and is still not in dispute.
[11]
The award, dated 19 September 2011, reads:
“
6.1
The applicant’s dismissal was substantively unfair.
6.2
The respondent (Toyota SA Motors (Pty) Ltd) must reinstate the
applicant
(Makhotla Makoma). The applicant must report for
work on 30 September 2011.
6.3
The respondent must pay the applicant 6 months’ salary
(back-pay)
amounting to R218 400.00.
6.4
The aforesaid payment must be effected within 14 days from the date
of receipt of this award.
6.5
There is no order as to costs.”
[12]
Section 145 provides, in relevant part:
“
Review
of arbitration awards.
—
(1)
Any party to a dispute who alleges a
defect in any arbitration proceedings under the auspices of the
Commission may apply to the
Labour Court for an order setting aside
the arbitration award—
(a)
within six weeks of the date that the award was
served on the applicant
”.
[13]
Id.
[14]
Rules for the conduct of proceedings in the Labour Court, GN 1665
GG
17495, 14 October 1996 as amended by GN R961
GG
18142 of 11 July 1997; GN R1100
GG
19196, 4 September 1998 and GN R766
GG
22587, 17 August 2001 (with effect from 20 August 2001) (Labour
Court Rules).
[15]
Labour Court
ex tempore
judgment
at para 4.
[16]
Section 158 provides, in relevant part:
“
Powers
of Labour Court.
—
(1)
The Labour Court may—
. . .
(c)
make any arbitration award or any settlement
agreement an order of the Court”.
[17]
Labour Court
ex
tempore
judgment
at para 2.
[18]
Id at para 10.
[19]
In considering leave to appeal, the Labour Court stated that the
primary reasons for dismissal of the review application were
the
failure to place an adequate record before the Court as well as the
failure to prosecute the review in an expeditious manner.
While it seems that the Labour Court conflates its original ground
for dismissal (being the unreasonable delay) with a failure
to
provide an adequate record, the Court noted that it is permissible
to dismiss a review application on either ground.
It went
further to state, at para 6, that in circumstances where the record
cannot be reconstructed “a party simply lets
the matter lie
and takes no substantial steps for 18 months to prosecute the review
application, it is difficult to imagine any
other outcome [than] the
review application failing”. It is noted that Toyota
does not appeal against the ruling
on leave to appeal.
[20]
Toyota contends that granting leave to appeal would be justified in
terms of
section 17(1)(a)(i)
and (ii) of the
Superior Courts Act 10
of 2013
.
[21]
Section 23(1) of the Constitution provides that “[e]veryone
has the right to fair labour practices”.
[22]
Section 33(1) of the Constitution provides that “[e]veryone
has the right to administrative action that is lawful, reasonable
and procedurally fair”.
[23]
Section 34 of the Constitution provides:
“
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.”
[24]
Emphasis added.
[25]
The relevant parts of rule 7A are as follows:
“
7A
Reviews
. . .
(3)
The person or body upon whom a notice of motion in terms of subrule
(2) is served must timeously comply with the direction in the notice
of motion.
(4)
If the person or body fails to comply with the direction or fails
to
apply for an extension of time to do so, any interested party may
apply, on notice, for an order compelling compliance with
the
direction.
(5)
The registrar must make available to the applicant the record which
is received on such terms as the registrar thinks appropriate to
ensure its safety. The applicant must make copies of such
portions of the record as may be necessary for the purposes of the
review and certify each copy as true and correct.
(6)
The applicant must furnish the registrar and each of the other
parties with a copy of the record or portion of the record, as the
case may be, and a copy of the reasons filed by the person
or body.
. . .
(8)
The applicant must within 10 days after the registrar has made the
record available either—
(a)
by delivery of a notice and accompanying affidavit, amend, add to
or
vary the terms of the notice of motion and supplement the supporting
affidavit;
or
(b)
deliver a notice that the applicant stands by its notice of motion.
(9)
Any person wishing to oppose the granting of the order prayed in
the
notice of motion must, within 10 days after receipt of the notice of
amendment or notice that the applicant stands by its
notice of
motion, deliver an affidavit in answer to the allegations made by
the applicant.”
[26]
Above n 21.
[27]
National Education Health and Allied Workers
Union v University of Cape Town and Others
[2002]
ZACC 27
;
2003 (3) SA 1
(CC);
2003 (2) BCLR 154
(CC) at para 25
.
[28]
Labour Court
ex tempore
judgment at paras 3, 4 and 10.
[29]
Needless to say, the notice and affidavit in terms of rule 7A(8)
were out of time. Toyota ought to have applied to the
Labour
Court to condone (in terms of rule 12(3)) non-compliance with the
period prescribed in the Labour Court Rules.
It did not.
[30]
See in this regard the Explanatory Memorandum on the Labour
Relations Bill:
Explanatory Memorandum
(1995)
16 ILJ 278 at 318. See also this Court’s reliance on the
Memorandum in
Chirwa v Transnet Ltd and
Others
[2007] ZACC 23
; 2008 (4) 367 (CC);
2008 (3) BCLR 251 (CC).
[31]
CUSA v Tao Ying Metal Industries and Others
[2008] ZACC 15
;
2009 (2) SA 204
(CC);
2009
(1) BCLR 1
(CC) at para 63.
[32]
Id at paras 64-5.
[33]
See above [30].
[34]
Rule 11(1)(c) of the Labour Court Rules provides:
“
(1)
The following applications must be brought on notice, supported by
affidavit:
. . .
(c) any other applications for direction that may be
sought from the court.”
[35]
See for example
Head of Department,
Department of Education, Limpopo Province v Settlers Agricultural
High School and Others
[2003] ZACC 15
;
2003
(11) BCLR 1212
(CC) (
Settlers
)
at para 11;
Brummer v Gorfil Brothers
Investments (Pty) Ltd and Others
[2000] ZACC
3
;
2000 (2) SA 837
(CC);
2000 (5) BCLR 465
(CC) (
Brummer
)
at para 3. The delays in these cases did not concern the
effective resolution of labour disputes. They related to
the
alleged unconstitutional interpretation of the Employment Educators
Act 76 of 1998 and to an attempt to set aside a sale
in execution of
the applicant’s right in pending litigation, respectively.
In
Settlers,
the
applicant applied for leave to appeal to this Court nine months
after the Supreme Court of Appeal dismissed an application
for leave
to appeal from the High Court. In
Brummer,
the delay was more than nine months from the
delivery of the judgment of the Supreme Court of Appeal. In
both cases, this
Court refused condonation for the late filing of
the applications for leave to appeal on the ground that it was not
in the interests
of justice that condonation be granted.
[36]
Lifecare Special Health Services (Pty) Ltd
t/a Ekuhlengeni Care Centre v CCMA and Others
[2003] ZALAC 3
;
[2003] 5 BLLR 416
(LAC) (
Lifecare
)
per Comrie AJA with the concurrence of Zondo JP (as he then was) and
Jappie AJA.
[37]
Id at paras 17 and 19.
[38]
See item 11.2.4 of the Practice Manual which came into effect on 2
April 2013.
[39]
Van Wyk
v
Unitas Hospital and Another
(Open
Democratic Advice Centre as Amicus Curiae)
[2007]
ZACC 24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) (
Van
Wyk
) at para 31. The remarks were made
by this Court, in the context of an application for condonation of a
delayed application
for leave to appeal to this Court.
However, the principle finds application here.
[40]
See above [25].
[41]
These include that the arbitrator “handed down an award which
was not an award of a reasonable and objective decision maker,
failed to apply his mind, misconducted himself, committed a gross
irregularity, exceeded his powers by acting unreasonably or
unjustifiably in:
10.1.1 Failing to recognise
that [Mr Makhotla’s] defence was contradictory and in ignoring
the two
versions put forward as to his absence namely:
a.
That he had gone to the Drakensburg to clear his head;
b.
That he had to rescue a girl from an initiation school;
10.1.2 Failing to appreciate
the dishonest nature of such defence, the significance of such
dishonesty
on [Mr Makhotla’s] defence as set out in the
Constitutional Court in the matter of
Sidumo v Rustenburg
Platinum Mines Ltd
(2007) 28 ILJ 2405 (CC).
10.1.3 Preventing [Toyota] from
cross-examining [Mr Makhotla] as to the real reasons for his
absence.
10.1.4 Imposing an additional
criterion in respect of [Toyota’s] code in requiring for there
to
be some form of ‘habitual absenteeism’ to justify a
termination.”
[42]
See [161] of the judgment by Zondo J.
[43]
See above n 11.
[44]
Above [34] and [35].
[45]
66 of 1995.
[46]
Labour Court
ex tempore
judgment above n 3.
[47]
In terms of section 158(1)(c) of the LRA. See above n 16.
[48]
Equity Aviation Services (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
2009 (2) BCLR 111
(CC) (
Equity
Aviation
) at para 36.
[49]
See Labour Court
ex tempore
judgment above n 3 at paras 8-10.
[50]
Toyota SA Motors (Pty) Ltd v The CCMA and
Others
case no: JR2627/11 (Labour Court
judgment on leave to appeal) at para 2.
[51]
Id.
[52]
Id.
[53]
Id at para 9.
[54]
Knox D’Arcy Ltd and Others v Jamieson
and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(AD);
[1996] 3 All SA 669
(A) at 361I.
[55]
Media Workers Association of South Africa and
Others v Press Corporation of South Africa Ltd
[1992] ZASCA 149
;
1992 (4) SA 791
(AD);
[1992] 2 All SA 453
(AD)
(
MWASA
) at 800E-F.
[56]
Id. See also
Shepstone & Wylie v
Geyser NO
1998 (3) SA 1036
(SCA) and
Hix
Networking Technology v System Publishers Pty Ltd
1997 (1) SA 391 (A).
[57]
Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Ltd and Another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) at para 88.
[58]
Although this date does not appear under paragraph 30 of the
majority judgment, it does appear in affidavits and annexures.
[59]
Two steps were taken on this day.
[60]
Three steps occurred on this day.
[61]
Goldfields Investment Ltd and Another v City
Council of Johannesburg and Another
1938 TPD
551
(
Goldfields Investment
).
[62]
Id at 552.
[63]
20 of 1933 (Transvaal).
[64]
Goldfields Investments
above n 61.
[65]
Ellis v Morgan
1909
TS 576
at 581.
[66]
Goldfields Investment
above n 61 at 557.
[67]
Id at 559.
[68]
Id at 560.
[69]
Id at 560-1. Recent judgments of both the Supreme Court of
Appeal and of this Court have also referred to Schreiner J’s
judgment when dealing with “gross irregularity”.
See
Lufuno Mphaphuli & Associates (Pty)
Ltd v Andrews and Another
[2009] ZACC 6
;
2009 (4) SA 529
(CC);
2009 (6) BCLR 527
(CC) at para 176;
Herholdt
v Nedbank Ltd
[2013] ZASCA 97
;
2013 (6) SA
224
(SCA);
[2013] 11 BLLR 1074
(SCA) at para 21;
ABSA
Bank Ltd v De Villiers and Another
[2009]
ZASCA 140
;
[2010] 2 All SA 99
(SCA) at para 28; and
Telcordia
Technologies Inc v Telkom SA Ltd
[2006]
ZASCA 112
;
2007 (3) SA 266
(SCA);
2007 (5) BCLR 503
(SCA)
(
Telcordia
) at paras
71-3.
[70]
Goldfields Investments
above n 61 at 560.
[71]
Telcordia
above n 69
at para 69.
[72]
Paper Printing Wood and Allied Workers’
Union v Pienaar NO and Others
[1993] ZASCA
98
;
1993 (4) SA 631
(A) (
Paper Printing
).
[73]
The now repealed Act 59 of 1959.
[74]
Paper Printing
above
n 72 at 638H-I.
[75]
Para 5.4 of the Arbitration Award.
[76]
Id at para 2.10.
[77]
Id at para 2.11.
[78]
Id at para 5.5.
[79]
Goldfields Investment
above n 61 at 561.
[80]
Section 192
reads:
“
(1)
In any proceedings concerning any
dismissal
, the
employee
must establish the existence of the
dismissal
.
(2)
If the existence of the
dismissal
is established, the
employer must prove that the
dismissal
is fair.”
[81]
Equity Aviation
above
n 48 at para 42.
[82]
Id at para 36.
[83]
Id.
[84]
Id.
[85]
Id.
[86]
Id.
[87]
Id at para 39.
[88]
Tshongweni v Ekurhuleni Metropolitan
Municipality
[2010] ZALC 84
;
[2010] 10 BLLR
1105
(LC); (2010) 31 ILJ 3027 (LC) (
Tshongweni
);
Cash Paymaster Services, North-West (Pty) Ltd
v Commission for Conciliation, Mediation and Arbitration and Others
[2008] ZALC 168
;
[2009] 5 BLLR 415
(LC);
(2009) 30 ILJ 1587 (LC) (
Cash Paymaster
);
and
Nkopane and Others v Independent
Electoral Commission
[2006] ZALC 93
; (2007)
28 ILJ 675 (LC) (
Nkopane
).
[89]
Tshongweni
id.
[90]
Id at para 26.
[91]
Id at para 28.
[92]
Nkopane
above n 88.
[93]
Id at para 77.
[94]
Zilwa Cleaning and Gardening Services CC v
Commission for Conciliation, Mediation and Arbitration and Others
[2009] ZALC 96
; (2010) 31 ILJ 780 (LC).
[95]
Id at para 25.
[96]
Id.
[97]
Cash Paymaster
above
n 88.
[98]
Crabtree v Dano Textile Industries
(1988) 9 ILJ 119 (IC).
[99]
Equity Aviation
above
n 48 at para 36.
[100]
Id.
[101]
Shoprite Checkers Ltd v CCMA and Others
[2002] ZALC 136
;
[2002] 7 BLLR 677
(LC); (2002) 23 ILJ 943 (LC)
(
Shoprite Checkers
)
and
Uee-Dantex Explosives (Pty) Ltd v Maseko
and Others
[2001] ZALC 63
; (2001) 22 ILJ
1905 (LC) (
Uee-Dantex
).
[102]
Balasana v Motor Bargaining Council and
Others
[2010] ZALC 124
;
[2011] 2 BLLR 161
(LC); (2011) 32 ILJ 297 (LC) (
Balasana
).
[103]
Boale v National Prosecuting Authority
[2003] ZALC 82
;
[2003] 10 BLLR 988
(LC); (2003) 24 ILJ 1666 (LC) at
para 5.
[104]
Nathaniel v Northern Cleaners Kya Sands (Pty)
Ltd and Others
[2003] ZALC 77
; (2004) 25 ILJ
1286 (LC) at para 7.
[105]
Fidelity Cash Management Services (Pty) Ltd v
Muvhango NO and Others
[2005] ZALC 68
;
(2005) 26 ILJ 876 (LC) (
Fidelity
).
[106]
Section 1 of the LRA gives one of its primary objects as being “to
promote . . . the effective resolution of labour disputes”.
[107]
This Court decided in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
ZACC 22
[2007] ZACC 22
; ;
[2007]; 2008 (2) SA 24
(CC);
2008 (2) BCLR 158
(CC)
(
Sidumo
) that an
arbitration award issued by a commissioner of the CCMA in dismissal
disputes under the LRA constitutes administrative
action.
[108]
African National Congress v Municipal
Manager, George Local Municipality & Others
[2009] ZASCA 139
; (2010) 31 ILJ 69 (SCA) (
ANC
)
at para 11;
Stewart Wrightson (Pty) Ltd v
Thorpe
1977 (2) SA 943
(A) (
Stewart
Wrightson
) at 954A-B;
Rosebank
Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation
(Pty) Ltd
1969 (1) SA 300
(T) (
Rosebank
);
Potgietersrust Hospital Board v Simons
1943 TPD 269
(
Potgietersrust
);
Rustenburg Town Council v Minister of Labour
& Others
1942 TPD 220
(
Rustenburg
);
Lottering and Others v Stellenbosch
Municipality
[2010] ZALC 67
;
[2010] 12 BLLR
1306
(LC); (2010) 31 ILJ 2923 (LC) (
Lottering
);
Sihlali v South African Broadcasting
Corporation Ltd
[2010] ZALC 1
; (2010) 31 ILJ
1477 (LC);
[2010] 5 BLLR 542
(LC) (
Sihlali
)
at para 11;
Du Toit v SASKO (Pty) Ltd
(1999)
20 ILJ 1253 (LC); Grogan
Dismissal,
Discrimination, and Unfair Labour Practices
(Juta & Co Ltd, Durban 2007) at 157; Le Roux and Van Neikerk
South African Law of Unfair Dismissal
1
ed (Juta & Co Ltd, Kenwyn 1994) at 86; Kerr
Law
of Lease
1 ed (Butterworths, Durban 1969) at
153; Wallis
Labour and Employment Law
Service 5 (1995) at para 33; and Brassey
Employment
and Labour Law
(Juta & Co, Kenwyn 2000)
Vol III at A8-26 (as quoted by Cheadle AJ in
Lottering
and Others v Stellenbosch Municipality
at
para 23).
[109]
Kerr
The Law of Lease
above n 108.
[110]
Wallis
Labour and Employment Law
above n 108.
[111]
Concurring judgment at [203].
[112]
Sihlali
above n 108
at para 11.
[113]
ANC
above n 108.
[114]
Hyperchemicals
International (Pty) Ltd and Another v Maybaker Agrichem (Pty) Ltd
and Another
1992
(1) SA 89
(W) at 92A-D where Preiss J said:
“
The
arbitrator, who was cited as the second respondent, elected to file
an answering affidavit, at the end of which he sought
the dismissal
of the application and an order that his costs of opposition be
paid. In this regard his joinder of issue,
though uncommon, is
perfectly proper. In the case of
Port
Sudan v Chettiar
[1977] 1 Ll LR 166
(QB) at 178, Donaldson J said the following:
‘
The modern practice is for a
notice of motion alleging misconduct, whether technical or actual,
to be served upon the arbitrator
or umpire concerned. He then
has a choice whether–
(a)
to take a full part in the proceedings as an active party; or
(b)
to file an affidavit setting out any facts which he considers may
be
of assistance to the Court; or
(c)
to take no action, in which case it will be assumed only that he
has
no wish to do more than accept the decision of the Court.
This practice is based upon the consideration of
natural justice, that no one should have his conduct criticised
without being
given an opportunity for replying or explaining.’”
[115]
I do not wish to say
definitively that this is impermissible where an issue, such as a
forfeiture of the entitlement to exercise
share options, is
engaged. If a dishonest employee resigns ahead of being
discovered, and the terms upon which a benefit
was afforded to them
provided that they would forfeit that benefit if dismissed for
dishonesty, it would be an unacceptable conclusion
to say that, as
they had resigned, they could no longer be dismissed and hence
remained entitled to the benefit. Accordingly
I would reserve this
question for another day. To that extent I have reservations
about the definite statement in [142]
of Zondo J’s judgment.
[116]
Rustenburg
above
n 108 at 224 followed in
Potgietersrust
above n 108 at
274.
Rustenburg
was cited in
Rosebank
above n 108
at 302 and
Air
Traffic and Navigation Services v Esterhuizen
[2014]
ZASCA 138
at para 17 but neither of those cases dealt with this
issue.
[117]
In terms of the Industrial
Conciliation Act 36 of 1937.
[118]
Rustenburg
above n 108 at 224.
[119]
Section 23(1) of the
Constitution.
[120]
Section 39(2) of the
Constitution.
[121]
For a recent example see
Mighty Solutions CC
t/a Orlando Service Station v Engen Petroleum Ltd and Another
[2015]
ZACC 34
at para 37.
[122]
In note 108 Zondo J cites a
number of cases as supporting his view. But several of them do
not.
Rosebank
does
not deal with the ability of an employee to withdraw their
resignation.
Stewart
Wrightson
at
954A-B addresses the question whether a repudiation of a contract,
not a termination by notice, requires communication of an
acceptance
by the other party in order for that party to claim that it brought
the contract to an end.
ANC
dealt with a notice of resignation by a municipal councillor that
was not opened or read by the town clerk before being withdrawn.
In
para 17 of that judgment, Maya JA said that it was unnecessary to
decide whether, if it had been opened and read, it could
have been
withdrawn.
Lottering
and
Sihlali
at
para 11 are cases in the Labour Court in which the traditional view
was endorsed.
[123]
My colleague cites as
supporting his view what I wrote twenty years ago in
Labour
and Employment Law,
Butterworths,
1995 at 33. Like Bramwell B in
Andrews
v Styrap
(1872) 26
LT 704
at 706
“
[t]he
matter does not appear to me now as it appears to have appeared to
me then”.