King Price Insurance Company Ltd v Chetty and Others (JR2127/20) [2023] ZALCJHB 100 (5 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2127/20

In the matter between:

KING PRICE INSURANCE COMPANY LTD

Applicant

and

LUWADE TYRONE CHETTY

First Respondent

FRANK NAIDOO, N.O.

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

Third Respondent

Heard: 16 March 2023

Delivered: 05 April 2023

JUDGMENT

VOYI AJ

[1] This is an application, by King Price Insurance Company Ltd (King Price), to review and set aside an arbitration award that was issued by the second respondent, Commissioner Frank Naidoo (Commissioner) on 30 October 2020 under case number GATW4950-20. The application is opposed by the first respondent, Luwade Tyrone Chetty (Chetty).

[2] This matter has its genesis in a disputed verbal dismissal of Chetty, allegedly on 27 February 2020. It is contended by Chetty that, on this date, he was informed and instructed by one Mr Vermaak of King Price not to return to work. This alleged instruction, coupled with other events which ensued, was construed by Chetty as amounting to a dismissal that is contemplated by section 186(1)(a) of the Labour Relations Act[1] (LRA).

[3] Following what he regarded to be a dismissal and on 9 March 2020, Chetty lodged an unfair dismissal dispute with the third respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA).

The Commissioner was appointed to arbitrate the dispute.

[4] At the commencement of the arbitration proceedings, a preliminary point in limine pertaining to jurisdiction was raised by Kind Prince through its representative, Mr Robert Malunga (Malunga). It was contended by Malunga that Chetty was not dismissed on 27 February 2020, as alleged by him. Instead, he was only dismissed after a disciplinary enquiry which was held on 10 March 2020, whose outcome was issued on 17 March 2020.

[5] The record reveals that the Commissioner was alive to this jurisdictional challenge. He stated his understanding of the point in limine as follows:

‘[King Price’s] submission is that [Chetty] was dismissed, following a disciplinary hearing, on 17 March 2020, whereas the referral indicates that he was dismissed on 27 February 2020. That is in essence [King Price’s] objection.’[2]

[6] On the effect of the preliminary point raised, the Commissioner went on to say:

‘If indeed that is the case, then it would mean that the CCMA lacks the necessary jurisdiction to arbitrate this matter because a dismissal only, the cause of action only arises on the date of dismissal.’[3]

[7] It seems to be clear to me that where the dismissal is in dispute, in this instance the disputed dismissal is that which is alleged to have occurred on 27 February 2020, the provisions of section 192(1) of the LRA are automatically engaged. That section provides:

‘(1) In any proceedings concerning any dismissal, the employee must establish the existence of the dismissal.’ (Own emphasis)

[8] The use of the word ‘must’ in section 192(1) is indicative of the fact that the legal obligation to establish the existence of the dismissal is peremptory. In State Information Technology Agency (Pty) Ltd v Sekgobela,[4] the Labour Appeal Court (LAC) stated the following:

‘It is clear that section 192 provides for a two stage process in dismissal disputes. First the employee who alleges that he/she was dismissed must prove that there was in fact dismissal and once the existence of the dismissal is established then the employer must prove that the dismissal was fair. It is clear therefore that the onus to prove the existence of the dismissal lies first on the employee. The word “must” in section 192 means that the provisions of the section are peremptory. The employee must set out the facts and legal issues which substantiate his assertion that a dismissal occurred. Once the employee has proved that dismissal did take place, the onus is shifted to the employer who must prove that the dismissal was for a fair reason such as for instance misconduct.’ (Footnote omitted)

[9] It is axiomatic that the onus of proof rests on the party which alleges something and not on the opponent who merely denies it.[5] The basic tenet is that he who asserts, proves and not he who denies.[6] It is manifest from a plain reading of the provisions of section 192 of the LRA that the incidence of the duty to adduce evidence (duty to begin) rests on the party bearing the onus of proof. Under section 192(1), the duty to adduce evidence therefore rests on the employee. Under section 192(2), it is on the employer. That to me is elementary and the reason is also quite self-evident. For a fuller elucidation of this theme, I refer to the judgment of the LAC in Stocks Civil Engineering (Pty) Ltd v Rip NO and Another[7] (Stocks Civil), where the following was held:

‘[24] Despite the fact that the appellant’s contention went to both a preliminary issue as well as the merits of the dispute, the first respondent had to bear in mind that there were important but different provisions relating to onus that were relevant to each one of the two issues. These are that, in relation to the question whether there had [been] a dismissal in the sense of a unilateral dismissal of the second respondent by the appellant, the second respondent bore the onus of proof in terms of s 192(1) and that, if the second respondent discharged this onus and proved that a dismissal had taken place, then in relation to whether or not the dismissal was fair, the appellant bore the onus to prove that in terms of s 192(2). Section 192(2) reads: “If the existence of the dismissal is established, the employer must prove that the dismissal is fair”. It is clear from this provision that the employer’s onus does not arise until the employee has discharged his own onus to prove the existence of the dismissal.

[25] The first respondent was obliged to first deal with the question whether there had been a dismissal and with that he had to consider the onus that the [employee] bore to prove the existence of a dismissal. If he found that there had been no dismissal, that would have been the end of the matter. Only if he found that there had been a dismissal, could he then proceed to consider whether such dismissal had been unfair.’

[10] In this matter, the Commissioner ruled thus:

‘… King Price has a duty to begin, King Price also has a duty to prove on a balance of probabilities that the dismissal of [Chetty] was fair.’[8]

[11] On account of this ruling, King Price commenced by leading its case and the evidence of about seven witnesses was presented, resulting in a transcript of the arbitration proceedings spanning over 1000 pages. This occurred in an instance where the Commissioner had to first deal with the question whether Chetty was dismissed on 27 February 2020.

[12] At paragraph 140 of his award, the Commissioner found as follows respecting the existence of the dismissal:

‘I am compelled, given the evidence before me, to make the finding that [Chetty’s] dismissal did indeed, in all probabilities, take place on 27 February 2020; and that his dismissal was procedurally unfair. The evidence, in this regard, is overwhelming. His salary stoppage, his access card cancellation and his removal from the two WhatsApp operational groups are compelling evidence in this regard.’

[13] Despite finding that Chetty was dismissed on 27 February 2020, the Commissioner went on to delve into the misconduct allegations which formed the subject of the disciplinary enquiry held on 10 March 2020. He painstakingly analysed these allegations and arrived at the conclusion that Chetty was ‘probably’ not guilty of all the allegations of misconduct levelled against him. What is, however, manifest is that there was no unfair dismissal dispute that was referred to the CCMA pertaining to the outcome of the disciplinary hearing held on 10 March 2020.

[14] In dealing with the allegations levelled against Chetty in the notice to attend the disciplinary enquiry of 10 March 2020, the Commissioner, with respect, dealt with an issue that was not properly before him. He was informed at the outset that the reasons for Chetty’s dismissal on 27 February 2020 were unknown.

[15] By all accounts, this is an archetypal case of a commissioner who misconceived the true nature of the enquiry before him. In this matter, the CCMA’s jurisdiction was being challenged in that the existence of the dismissal was in dispute. Borrowing from the exact and fitting words employed by the LAC in Stocks Civil, it is my view that the Commissioner:

‘… was obliged to first deal with the question whether there had been a dismissal and with that he had to consider the onus that [Chetty] bore to prove the existence of a dismissal. If he found that there had been no dismissal, that would have been the end of the matter. Only if he found that there had been a dismissal, could he then proceed to consider whether such dismissal had been unfair.’[9]

[16] The facts of this matter lead me to no other conclusion other than that the Commissioner committed a gross irregularity in the conduct of the arbitration proceedings by misconceiving the nature of the enquiry before him.[10] His award, therefore, stands to be reviewed and set aside on this basis alone.

[17] I find that no purpose will be served by remitting the matter back to the CCMA for arbitration de novo. The crisp issue that had to be determined was whether Chetty was dismissed by King Price on 27 February 2020. I am in a position to determine this, having the benefit of the extensive evidence led by the parties on account of the Commissioner’s ruling that the employer had the duty to begin and the duty to prove the fairness of a dismissal that was in dispute.

[18] According to Chetty, he was instructed by Mr Vermaak not to return to work. This was repeated by his legal representatives in a letter issued to King Price on 2 March 2020. It is, however, acknowledged by Chetty that he was later issued with a notice to attend a disciplinary enquiry. In fact, he personally informed the Commissioner that he received the notice to attend the disciplinary hearing on 4 March 2020.[11] It was on this basis that the Commissioner held as follows somewhere in his award:

‘King Price was entitled to rectify any mistake it may have made in unfairly terminating [Chetty’s] employment without processing him through a disciplinary hearing because, as at 9 March 2020, when [Chetty] had referred his unfair dismissal dispute with the CCMA, his dismissal was clearly procedurally unfair. [King Price], however, simply failed to prove that it did hold a disciplinary hearing on 10 March 2020. Hence [King Price] failed to rectify its omission to fairly process [Chetty] through a disciplinary hearing.’

[19] In my view, what the Commissioner lays as the basis for finding that King Price failed to rectify its omission does not accord with the facts based on the evidence presented. It was common cause that a disciplinary enquiry was held on 10 March 2020.[12] Therefore, the finding that King Price had failed to prove that it convened the disciplinary hearing on 10 March 2020 was clearly at odds with the undisputed evidence.

[20] As it was correctly pointed out by the Commissioner himself, it is my finding that King Price was entitled to rectify any mistake that may have been made by Mr Vermaak of dismissing Chetty without a hearing. The fact that a disciplinary hearing was scheduled (and convened) after 27 February 2020 establishes that, according to King Price, Chetty had not been dismissed. It would make no sense for an employer to convene a disciplinary hearing for an employee who has already

been dismissed by that employer.

[21] In this matter, it was Chetty who was determined to hold on to the alleged dismissal which supposedly took place on 27 February 2020. He deliberately recanted the opportunity that was afforded for him to be heard on the misconduct allegations that were levelled against him by King Price. Opportunism reveals itself in this type of conduct.

[22] Influenced by the decision of the LAC in Semenya and others v Commission for Conciliation, Mediation and Arbitration and others,[13] I am unable to find that, on the objective facts, Chetty was dismissed by King Price on 27 February 2020 as alleged by him.

[23] As it was observed by the Commissioner, the employer in this matter was entitled to rectify any purported and/or perceived dismissal by affording the employee an opportunity of being heard before a final decision to dismiss is taken. In this matter and with the benefit of being legally represented, Chetty snubbed that opportunity. In my considered view, he did so at his own peril.

[24] It was also argued by King Price that the Commissioner had committed a very serious misconduct in relation to how he dealt with the application for legal representation. It was contended that what is stated in the arbitration award regarding the application for legal representation was not a correct reflection of exactly what occurred. The allegation of misconduct was advanced in such strong terms I do not find it warranted to repeat them in this judgment.

[25] On this issue, I indicated at the outset that I was not prepared to make a finding of misconduct against an arbitrator unless I am satisfied that he was indeed provided with the affidavit that makes the serious allegations against him. That is still my position. I hold that serious misconduct, on the part of an arbitrator, is not something to be lightly or readily inferred, considering the serious implications of such a finding on the individual concerned.

[26] This stance should, however, not be construed to mean that there should now be reticence in holding that a commissioner committed misconduct in relation to his duties, as contemplated by section 145(2)(a)((i) of the LRA. The misconduct that was alleged in this matter was of such an extremely serious nature that it left me with no doubt that any adverse finding in relation thereto would have grave consequences for the Commissioner as a professional man. It was for this reason that I had to be satisfied he was well aware of the misconduct it was alleged he had committed.

[27] With regard to costs, my considerations of the law and fairness compel me to rule that there should be no order as to costs. Even though I find that opposition to the application for review was unwarranted, I am not prepared to mulct Chetty with an adverse costs order. The reviewable irregularly here was committed by the Commissioner.

[28] I accordingly make the following order:

Order

1. The arbitration award issued by Commissioner Frank Naidoo on 30 October 2020 under case number GATW4950-20 is reviewed and set aside.

2. The arbitration award is substituted with an order that the First Respondent was not dismissed by the Applicant on 27 February 2020, with the consequent result that the Third Respondent does not have jurisdiction to arbitrate the alleged unfair dismissal dispute referred under Case Number GATW4950-20.

3. There is no order as to costs.

N P Voyi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv Paul Kirstein Instructed by: Weavind & Weavind Inc. For the First Respondent: Mr J.H. Leshaba of Mitti Attorneys

[1] Act 66 of 1995, as amended.

[2] Transcript, p. 55

[3] Transcript, p. 55.

[4] (2012) 33 ILJ 2374 (LAC) at para 13.

[5] Pillay v Krishna and Another 1946 AD 946 at 951 - 952.

[6] Id.

[7] (2002) 23 ILJ 358 (LAC) at paras 24 – 25.

[8] Transcript, p. 79

[9] Stocks Civil at para 25.

[10] See: Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at para 25

[11] Transcript, p. 47

[12] At lines 5-6 of the Transcript, p. 866, Mr Naidoo, the legal representative for Chetty at arbitration, put the following to his

client: “Look, it is common cause that the disciplinary took place on 10 March,…”. Chetty’s response was in the affirmative.

[13] (2006) 27 ILJ 1627 (LAC) at para 30.