Heidelberg Cash and Carry v Sehunane NO and Another (JR100/24) [2024] ZALCJHB 366 (23 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR100/24

In the matter between:

HEIDELBERG CASH AND CARRY Applicant and MATOME VICTOR SEHUNANE N.O. First Respondent MAYASHNIE PADIACHEE Second Respondent

Heard: 20 August 2024

Delivered: 23 August 2024

This judgment was handed down electronically by circulation to the parties’ legal representatives by email. The date for hand-down

is deemed to be 23 August 2024.

JUDGMENT

MAKHURA, J

[1] The first respondent is a commissioner, who acting under the auspices of the Commission for Conciliation, Mediation and Arbitration (CCMA) issued an arbitration award dated 27 November 2023 in terms of which he found that Mayashnie Padiachee (employee), successfully proved that she was employed by Heidelberg Cash and Carry (company), the applicant in these proceedings, and that she was dismissed on 30 August 2023. Further, the commissioner declared that the dismissal of the employee was procedurally and substantively unfair and ordered the company to pay her compensation in the amount of R72 000.00.

[2] The company brought these proceedings in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the award. In addition, the company seeks, in its founding affidavit, an order condoning the late delivery of the review application. The application is unopposed.

[3] At the start of the proceedings, the employee appeared and requested that the matter be postponed to allow her to file the necessary papers. The employee acknowledged that she was properly served with the papers. She was not in a position to pay the wasted costs. The company objected to the employee’s request and submitted that it would be prejudiced if the matter is postponed. Having considered the above submissions and the fact that these are review proceedings where evidence had already been led at arbitration proceedings, I found that it was not in the interest of justice to postpone the matter and refused the employee’s request for postponement. The matter proceeded on unopposed basis.

[4] The company received the award on 27 November 2023. The six-week period to bring these proceedings expired on 8 January 2024. The application was served on the employee on 23 January 2024, and filed on 14 February 2024. The application was therefore served two weeks outside the prescribed period and filed just over four weeks outside the prescribed period. Having considered the insignificant period and that there is no prejudice caused on the employee, I have decided to condone the late delivery of the application.

[5] During arbitration, the company was represented by Wiseman Ngobeni (Ngobeni), the attorney of record in these proceedings. In an unfair dismissal dispute where the company disputed that it was an employer, Ngobeni, in his opening statement and in response to the commissioner’s question whether dismissal was common cause, said the following:

‘The employer never dismissed her. He informed her that the business is quiet.’

And that:

‘The employer never formally employed the applicant. She was volunteering.’

[6] During cross examination of the employee, Ngobeni put the following versions to the employee:

‘The employer will come and tell the Commissioner that you were never employed by Heidelberg Cash and Carry. You were volunteering…

‘The employer will come and dispute that you were dismissed … you were never employed. I want you to also understand that you were never employed, you were volunteering.’

[7] Notwithstanding Ngobeni’s reference to the company as “the employer” throughout the proceedings, the company’s primary case before the commissioner was that it was not the employer and that because it did not employ the employee, it did not dismiss her or could not have dismissed her. Alternatively, the employee was a volunteer.

[8] The material facts are not in dispute. The employee worked at Red Chicken restaurant as a manager from 25 January 2023, as a replacement for one employee named Mr Tussor or Deusher as per the transcript (Tussor) who travelled to Bangladesh. She was expected to work until Tussor returned from Bangladesh. Tussor returned in mid-April 2023.

[9] On or about 15 April 2023, the employee stopped working at Red Chicken restaurant and started working at the company as a cashier. She was inducted and/or trained as a cashier by the company.

[10] The employee worked Mondays to Saturdays and earned a salary of R6000.00 per month, payable in cash. No written contract of employment, no payslip, no leave as any absence resulted in a deduction from her salary. From these facts, and considering the

company’s case that the employee was not employed, it can be concluded that there were no deductions and contributions to the Unemployment Insurance Fund.

[11] The employee’s undisputed evidence was that when she started working at the company, she was informed that she was being employed “for good, for life”. She continued working until August 2023.

[12] At approximately 17h00 on Wednesday, 30 August 2023, the company manager, known as Rashid, called the employee and said to her:

‘…here is your money, please do not come back. We will let you know when we need you. The business is slow.’

[13] Rashid paid the employee R5800.00. It is common cause the company employed a new employee, ‘Roshie’, shortly after 30 August 2023. The employee testified that Roshie was employed on 1 September 2023.

[14] On 7 September 2023, the employee referred an unfair dismissal dispute to the CCMA. At arbitration, the employee testified and did not call any further witnesses. The company called Mohammed Farouk (Farouk) and Monimul Hoque (Hoque). The employee disputed the company’s allegation or version that she was a volunteer and testified that she was employed. Her testimony aligned with the common cause facts as already set out above.

[15] Farouk and Hoque testified that the employee was volunteering but could not explain the terms of this alleged voluntary arrangement. Farouk testified that he is the sole owner of the company and that Hoque, his cousin, was the owner of Red Chicken restaurant. Farouk conceded that Roshie was employed in September 2023 but he could not recall the date of her employment. Hoque testified that he co-owns Red Chicken restaurant with his brother. He had no knowledge of what happened at the company. The company did not call Rashid.

[16] The commissioner observed, correctly so in my view, based on the evidence by the witnesses, that the only dispute of fact related to whether the employee was a volunteer or employee. He found that the employee presented a compelling and persuasive case and was able to establish that she was employed by the company in the capacity of a cashier, with working hours from 8h00 to 17h00 Mondays to Fridays, until 14h00 on Saturdays and was remunerated R6000.00 per month.

[17] The commissioner found that the company’s witnesses were poor insofar as they tried to explain the basis upon which they would regard the employee as a volunteer. He further correctly found that it is not a legal requirement to have a written contract of employment to prove that a person is an employee.

[18] Having found that the employee established that she was employed by the company, the commissioner found that she was dismissed by the company on 30 August 2023 when she was informed to no longer report for duty because “the business was slow”. The company having failed to justify the dismissal, the inevitable result was that the employee’s dismissal was substantively and procedurally unfair. The commissioner concluded accordingly.

[19] The commissioner proceeded to deal with the issue of remedy. He considered the manner in which the employee was dismissed and the reason therefor, that she remained unemployed at the time of arbitration, that the company employed Roshie on 1 September 2023 in the same position and the provisions of section 194 of the LRA, and awarded the employee maximum compensation of 12 months.

[20] The company contends that the award should be reviewed and set aside on the grounds that the commissioner committed a gross irregularity in the conduct of the proceedings and/or misconduct in relation to his duties.

[21] To substantiate, the company contends that the commissioner acted ultra vires by awarding 12 months compensation. It argues that this is excessive. This point is meritless. Section 194 of the LRA caps the amount of compensation for employees unfairly dismissed for reasons relating to conduct or capacity or operation requirement to 12 months compensation. During arguments, Mr Ngobeni referred this Court to a judgment of the Labour Appeal Court (LAC) in Toyota SA (Pty) Ltd v Meyer and others[2] to support his case the amount of compensation awarded by the commissioner was excessive. In that case, the LAC reduced the amount

of compensation to 6 months. Although Mr Ngobeni referred me to paragraphs 33 and 34, which in my view have nothing to do with the issue of compensation, the relevant paragraphs are 16 and 17, which do not advance the company’s case. In paragraph 16, the LAC referred to its judgment in Johnson and Johnson (Pty) Ltd v CWIU[3], where it was held:

‘The compensation for the wrong in failing to give effect to an employee’s right to a fair procedure is not based on patrimonial or actual loss. It is in the nature of a solatium for the loss of the right and is punitive to the extent that an employer (who breached the right) must pay a fixed penalty for

causing that loss. In the normal course a legal wrong done by one person to another deserves some form of redress. The party who committed the wrong is usually not allowed to benefit from external factors which might have ameliorated the wrong in some way or another. So too in this instance.’[4]

[22] The LAC continued:

‘Johnson and Johnson, supra has represented the legal position adopted by this Court for more than 20 years. It is sound precedent which must be followed. Thus, the award of compensation limited as it is in terms of s 194 of the LRA, cannot be equated to the staunching of patrimonial loss suffered by an employee, as a consequence of an unfair dismissal, in this case, both procedurally and substantively. By contrast, an award of compensation as envisaged in sections 193 and 194 read together constitutes a payment in lieu of an impairment of an employee’s dignity.’

[23] The commissioner has provided reasons for the decision. It is his discretion which this Court must be slow to interfere with. Mr Ngobeni submitted that a compensation for 6 months would have been appropriate. That is what the company would have preferred, but that is immaterial and irrelevant just as it is irrelevant whether the Court would have awarded a lesser amount of compensation. The commissioner considered the right of an employee not to be unfairly dismissed, the conduct of the company in breaching that right and concluded that 12 months compensation was appropriate. There is nothing arbitrary, capricious or injudicious about the commissioner’s exercise of his discretion.

[24] The company contends further that the commissioner should have first dealt with the disputed point in limine relating to the existence of dismissal and only after determining the issue, deal with the fairness of the dismissal. The issue before the commissioner was whether the dismissal was fair. Having disputed dismissal, the employee had to start leading evidence. The inquiry became whether the employee was employed by the company, whether she was dismissed and if so, whether the dismissal was fair. It is not necessary for the parties to first lead evidence in a piecemeal fashion on the existence of dismissal and later lead evidence on the fairness of the dismissal. Significantly, the company did not request for a separation of the issues, hence the employee led evidence on the existence of an employment relationship, the existence of the dismissal and the fairness thereof and the appropriate remedy. The company cross examined the employee on these issues and had the opportunity to lead its own evidence. There was no prejudice and indeed, the company has claimed none. This review ground must fail.

[25] The third contention advanced by the company is that the commissioner considered irrelevant evidence. The company contends that the commissioner ignored Hoque’s evidence that he employed the employee to work for the company even though he is not the owner or founder or director of the company. Therefore, so the company argues, because Hoque could not employ the employee at the company which he does not own, an employment relationship could not have been established. This argument is farcical. It ignores the fact that the employee was taken by Hoque to the company to be inducted and/or trained as a cashier by the company, that she rendered her services Mondays to Saturdays at the company as a cashier and that she was remunerated not by Hoque, but by the company on a monthly basis until 30 August 2023 when she was informed by the company to not report for duty.

[26] The next criticism of the award is that the commissioner failed to consider relevant evidence and legal principles. The essence of this contention is that because the employee was never expressly informed by Rashid that she was dismissed, therefore she was not dismissed and the commissioner should have limited himself to this say-so evidence and found that the employee was not dismissed. By considering all other factors and finding that the employee was employed by the company and was dismissed, the commissioner is alleged to have misconceived the nature of the enquiry and exceeded his powers. Properly construed, the company's argument is that the commissioner must have closed his ears when the employee testified and open them when its witnesses were on the witness stand giving evidence in chief and close them again when they were being cross examined. Simply put, the commissioner must disregard the employee’s version and the undisputed facts placed before him. The company suggests further that for an employee to prove that she was dismissed, there must be a letter to that effect or the employer must have expressly stated that

the employee is dismissed. This argument is underwhelming and profoundly misconstrues the commissioner’s powers to deal with

the substantial merit of the dispute. It is not grounded on any legal principle and is in fact illogical.

[27] Next, the company complains that the commissioner did not make a credibility finding on the three witnesses. The argument is that the employee’s evidence insofar as it relates to whether she found employment after 30 August 2023 is concerned was contradictory. The employee’s evidence was that she was not employed but was only assisting someone to open the shop in the mornings and would be paid for providing that assistance on the day. She did not consider this to be employment. Ultimately, there was no prima facie evidence to show that the employee was in fact employed elsewhere. Even if her evidence may be contradictory insofar as her assistance

at this shop is concerned, the alleged contradiction is not material and did not have the distorting effect on the commissioner’s

decision. Even in these proceedings, the company has not provided any further information of the employee’s employment, if any.

[28] The test for review applicable to the commissioner’s decision that the employee was employed by the company and was dismissed is one of correctness.[5] I have considered the findings of the commissioner and the company’s review grounds as already discussed above. The commissioner’s

findings are correct and the grounds relating to an attack on the existence of an employment relationship and dismissal have no merit and are rejected. Therefore, the commissioner was correct to find that there was an employment relationship and that that relationship was terminated by the company on 30 August 2023.

[29] The review test applicable to the commissioner’s finding that the dismissal was unfair is that set out in Sidumo and another v Rustenburg Platinum Mines Ltd and others[6] and expounded in many other judgments thereafter[7]. The test was further clarified by the Constitutional Court in Duncanmec (Pty) Ltd v Gaylard NO and others[8] as follows:

‘This test means that the reviewing court should not evaluate the reasons provided by the arbitrator with a view to determine whether it agrees with them. That is not the role played by a court in review proceedings. Whether the court disagrees with the reasons is not material.

The correct test is whether the award itself meets the requirement of reasonableness. An award would meet this requirement if there are reasons supporting it. The reasonableness requirement protects parties from arbitrary decisions which are not justified by rational reasons.’

[30] There is nothing unreasonable with the commissioner’s finding that the dismissal was unfair both procedurally and substantively. There was no shred of evidence led by the company to justify why it had to tell the employee to not report for duty due to the business being slow nor was there any evidence to justify why it employed Roshie on 1 September 2023 and not called the employee back. Only Rashid could have shed some light on the dismissal of the employee but he was not called to testify.

[31] The employee was dismissed without following any procedure. To the extent that the company wanted to retrench the employee, that retrenchment cannot, on the facts or material before the commissioner, be justified either procedurally or substantively. Such conduct on the part of the company is arbitrary and egregious and no amount of spinning can rationalise its decision to dismiss the employee. The company has therefore failed to make out a case and its review application stands to be dismissed.

[32] In the premises, the following order is made:

Order:

1. The late delivery of the review application is condoned.

2. The review application is dismissed.

M. Makhura

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. W. Ngobeni of Wiseman Ngobeni Inc.

[1] No 66 of 1995, as amended.

[2] (2021) 42 ILJ 1696 (LAC).

[3] [1998] 12 BLLR 1209 (LAC).

[4] Ibid 41.

[5] See: SA Rugby Players Association and Others v SA Rugby (Pty) Ltd and others (2008) 29 ILJ 2218 (LAC) at paras 39 – 41; Ukweza Holdings (Pty) Ltd v Nyondo NO and others (2020) 41 ILJ 1354 (LAC) at para 12.

[6] (2007) 28 ILJ 2405 (CC) at para 110.

[7] Fidelity Cash Management Services v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 100; Head of the Department of Education v Mofokeng and others Head of the Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at paras 31 – 33.

[8] (2018) 39 ILJ 2633 (CC) at paras 42 - 43.