Gumede v Gcwensa Attorneys and Others (JR2491/12) [2013] ZALCJHB 348 (8 August 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case No: JR 2491/12

In the matter between:

GUMEDE PHAKATSHWAYO

Applicant

and

GCWENSA ATTORNEYS

First Respondent

COMMISSIONER MASEGE KIHEDITSE

Second Respondent

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

Third Respondent

Heard: 4 JULY 2014

Delivered: 8 AUGUST 2014

Summary: A Review of an award. Award not reviewable as Applicant failed to prove a dismissal and the Commissioner’s award not open to review.

COOK AJ

Introduction

1. The Applicant seeks to have an arbitration award ("the award") handed down by the Second Respondent under the auspices of the third respondent on 1 August 2012 reviewed and set aside in terms of the provisions of section 145 the Labour Relations Act ("LRA").

Background

2. The First Respondent employed the Applicant with effect from 1 November 2001. The Applicant was employed as a driver and earned monthly salary of R6000. The Applicant was assigned to office duties after the vehicle in which the Applicant was the regular driver had broken down.

3. The Applicant's version is that at the end of June 2012, his employer told him that from 1 July 2012, he would not be doing his ordinary work that he would be office bound and only receive half his salary. The Applicant was told he either accepts the conditions or he should leave his employment.

4. The Applicant's grounds for review are the following:

‘1. That arbitrator failed to appreciate that the Applicant was employed by the First Respondent in terms employment contract and accept as such of position of driver/massager. [sic]

2. The arbitrator overlooked the fact that by definition of constructive dismissal, the employer created the situation which the Applicant was not left with any option but to terminate his employment contract

3. It clear [sic] from the record that the Applicant has stated that he started employment with the First Respondent on 1 November 2011, not what been captured [sic] into the arbitration award the 1 June 2011, this demonstrates on its own that the third respondent did not consider the fact before him.

4. The third respondent failed to give any or proper consideration of the fact, you objectively [sic] to the fact that the Applicant had no option but to accept salary filing [sic] which the Applicant employment is terminated.’

The Applicable Legal Principles

5. The Supreme Court of Appeal in Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)[1] summarised the position of the test to be applied in reviews as follows:

‘… A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable’.[2]

6. The Labour Appeal Court in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others[3] stated:

‘[20] Failing to consider a gross irregularity in the above context would mean that an award is open to be set aside where an arbitrator (i) fails to mention a material fact in his award; or (ii) fails to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute; and/or (iii) commits an error in respect of the evaluation or considerations of facts presented at the arbitration. The questions to ask are these: (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he was required to arbitrate (this may in certain cases only become clear after both parties have led their evidence)? (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? and (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?

[21] Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision. Where the arbitrator fails to follow proper process he or she may produce an unreasonable outcome (see Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is considered on the totality of the evidence not on a fragmented, piecemeal analysis. As soon as it is done in a piecemeal fashion, the evaluation of the decision arrived at by the arbitrator assumes the form of an appeal. A fragmented analysis rather than a broad-based evaluation of the totality of the evidence defeats review as a process. It follows that the argument that the failure to have regard to material facts may potentially result in a wrong decision has no place in review applications. Failure to have regard to material facts must actually defeat the constitutional imperative that the award must be rational and reasonable- there is no room for conjecture and guesswork.’

Analysis

7. In terms of the Applicants employment contract the following is recorded:

‘2.1 performer the usual duties or any other such duties as assigned to him/her from time to time at the employer's place of work and at such other places that may, from time to time be assigned to the employee in the performance of his/her duties as a litigation attorney.

2.2 comply with all lawful instructions given to him/her and comply with the reporting structure set up within the employer’s infrastructure

2.3 use his/her best endeavours to promote the practice of the employer during his/her employment.’

8. Accordingly, in terms of the Applicants written contract of employment, the Applicant’s employer could assign other duties to him. Accordingly, the first ground of review is without merit.

9. The Court agrees with the argument of the First Respondent that by shifting the Applicant from driving to filing in the office, the First Respondent's conduct can hardly be said to have created intolerable conditions for the Applicant. The Court also finds the argument of the First Respondent that if the First Respondent wished to force the Applicant out of his employment, this could have been easily achieved considering the plethora of transgressions committed by the Applicant in the course of his employment.

10. In respect of whether the Applicant’s salary was to be halved from R6000 to R3000, the commissioner was faced with two mutually destructive versions. The Court is of the view that the finding of the Commissioner that the salary was not halved, is not a finding a reasonable commissioner could not have made on the evidence properly before the Commissioner.

11. The Commissioner in his is finding recorded:

‘Even if I were to accept his [“the Applicant’s”] version and reject the respondent's version, I cannot agree that an option to accept a lower salary or to leave is a dismissal.

The Labour Relations Act clearly sets out the remedies available to an employee in the circumstances as that of the Applicant.

I have considered that the Applicant had the onus of proving that he was dismissed. I find it the [sic] failed to discharge the onus to show he was dismissed.’[4]

12. The onus was on the Applicant to prove that he had no reasonable alternative other than terminating the contract. I agree with the Commissioner that the Applicant failed to satisfy this onus. The Applicant took no other steps, on his own version, but to reject the reduction in salary and to resign.

13. Even if the First Respondent threatened to halve the Applicant salary, this would still not have made his resignation an action of last resort. The Applicant could have refused to accept the terms offered by his employer, and if they were unilaterally imposed could have declared an unfair labour practice or sued for breach of contract.

14. The Court does not consider the incorrect recordal of the starting date of employment as material and is not a ground for review.

15. When answering the questions posed in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others, the Court would answer all five in the affirmative.

16. In terms of Section 162(1), the Labour Court may make an order for the payment of costs according to the requirements of law and fairness. In light of the fact that the Applicant is an individual, who chose to resign, instead of standing firm, the Court is of the view that it would not be in the interests of justice and fairness that the Applicant be ordered to pay costs.

17. Accordingly, the Court makes the following order:

17.1 The application for review is dismissed.

17.2 No order as to costs.

_______________________

Cook AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Advocate S Mathabathe

Instructed by:

For the Respondent: Advocate K Mnyandu

[1] (2013) 34 ILJ 2795 (SCA) at para 25.

[2] Id at para 25

[3] (2014) 35 ILJ 943 (LAC) at paras 20-21.

[4] Paragraph 5.08, page 35 of the index to application.