Makhari v Commission for Conciliation, Mediation and Arbitration and Others (JR520/20) [2021] ZALCJHB 295 (15 September 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 520/20

In the matter between:

LUFUNO KENNEDY MAKHARI Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION First

Respondent

AND ARBITRATION

COMMISSIONER L SHEAR N.O Second

Respondent

JRA JOBURG ROAD AGENCY Third

Respondent

Heard: 24 August 2021 [ Decided on the Papers only]

Delivered: This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing-down is deemed to be 10h00 on 15 September 2021.

JUDGMENT

BALOYI, AJ

Introduction

[1] The applicant approached this Court seeking review and set aside of the second respondent’s arbitration award in so far as the relief is concerned. The second respondent found the applicant’s dismissal to be unfair and ordered the third respondent to pay the applicant compensation equivalent to seven months’ remuneration. The applicant is of the view that reinstatement is an appropriate relief. The Court should accordingly substitute compensation with reinstatement. The application is opposed by the third respondent. The application was determined on paper in accordance with the practice directive issued for the conduct of proceedings in this Court in compliance with the Disaster Management Regulations following the outbreak of the Covid 19 pandemic.

[2] The arbitration award that is subject matter of this application is in fact the outcome of the second arbitration of the dispute between the applicant and the third respondent. The outcome of the initial arbitration of the dispute was against the applicant. The applicant took the first arbitration award to this Court for review and it was successful. As a result, the dispute was remitted to the CCMA for arbitration de novo.

[3] The second arbitration hearing came before the second respondent. The third respondent had a challenge about its only witness, Mr Hlapolosa who was reported to have left the country. The issue was resolved by agreement that the transcript of the record of evidence tendered during the first arbitration should be utilized in the second arbitration. The second respondent recorded in his arbitration award that it was only the evidence of the applicant that was missing in the initial record. The applicant was as a result required to testify again in the second arbitration.

[4] Before this Court, it is only the evidence of the applicant forming part of the record. The record is in fact incomplete. This does not bar this Court from proceeding with determination of the matter for the following reasons;

4.1 No issue was raised in the third respondent’s opposing papers regarding the state of the record,

4.2 In terms of Rule 7A (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….., (my underlining).

4.3 The issue to be determined by this Court is limited to whether the second respondent’s decision to award a relief of compensation is reviewable.

4.4 There is no cross-review in challenge of the finding that the dismissal is unfair.

[5] When considering the above four factors, I find no reason to call for further record as nothing is placed before this Court to suggest any prejudice is to be suffered by either party. Furthermore, this is an ancient dispute that deserved finality. I therefore proceed with determination of the matter with the record as it is.

Factual background

[6] A three months fixed term contract entered into between the third respondent and the applicant expired in February 2015. At some point after the expiry of the fixed term contract Mr Hlapolosa who was his line manager informed him and other colleagues that the permanent positions would be advertised and they should be ready to submit their application. The positions were eventually advertised and the applicant responded by submitting his application. After going through the recruitment process with the external recruitment agency, he received a written communication through email confirming that his application for employment was successful and was set to commence work on 08 June 2015. The employment contract was subsequently entered into between himself and the third respondent. In terms of the contract confirmation of his employment was subject to six months’ probation. He understood his appointment to be permanent so long as he successfully completed his probation.

[7] On 16 October 2015 an official from the HR approached the applicant with an appointment letter which required his signature. The reason given to the applicant was that he was required to sign the second appointment letter as the initial one had an error, hence it was retyped. The applicant found it strange that he was required to sign a document without being afforded an opportunity to read it. He refused to sign it inspite of a further persuasion by other officials including Mr Hlapolosa. He eventually relented to a second interview for the very position he held on an understanding that same will resolve the problem.

[8] Instead of receiving the outcome of the interview, on 19 October 2015 he was made to receive a letter stating that his contract expired on 30 September 2015. He was further directed to cease any execution of duties with immediate effect. The third respondent relied on the amended contract which the applicant refused to sign to justify termination of the applicant’s employment. It is recorded in the contract in question that the duration of employment was for a period between 08 June 2015 and 30 September 2015.

[9] The third respondent clung on other various issues in support of its case, amongst others that all candidates were informed during interviews that the contracts of employment were to be of limited duration. Secondly, that the applicant’s colleagues who were affected by this error signed new appointment letters which effectively altered their terms of employment irrespective contracts.

[10] The second respondent made a finding that the applicant was permanently employed by the third respondent. The ‘error’ argument raised by the third respondent fell outside the scope of the contract and the error was not common to both parties. He ultimately found the dismissal to be unfair and ordered the third respondent to pay the applicant compensation equivalent to seven months’ remuneration. The reason being that the third respondent stated that the positions were frozen after the expiry of fixed term contracts.

[11] Now before this Court, the applicant, not in so much meticulous way of pleading of his case challenges the second respondent’s decision not to reinstate him following a ruling that his dismissal is unfair. The founding affidavit is drafted on the template sourced from the Registrar and the third respondent seem to make a meal out of the quality of the applicant’s papers. The applicant’s papers are not crafted with that level of precision expected from the legal practitioners. It is a well settled principle in this Court that matters are not merely decided based on their form but substance.

[12] In terms of section 193 of the Labour Relations Act the arbitrator must require the employer to reinstate the employee unless:

“(1) 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 from any date not earlier than the date of dismissal, or

(c) Order the employer to pay compensation to the employee.” (my underlining)

[13] The applicant clearly did not express any wish not to be reinstated. The second respondent seem to have gone with the flow around the freezing of positions after the expiry of fixed term contracts as argued by the third respondent. This finding is at odds with what the second respondent’s contract of employment that it is indefinite in its nature. Consequently, he has rejected the third respondent’s contentions that the contract has expired. The expiry cannot under the circumstances be accepted as a trigger for the freezing of positions as he had already found that it was something self-created by the third respondent. The second respondent’s decision fell short of the standards of reasonableness on this point. It is bound to be reviewed and set aside insofar as the relief awarded is concerned. The applicant is entitled to a relief of reinstatement with retrospective effect less the compensation awarded (if paid).

[14] The matter was determined on paper and it will not be appropriate to make a cost order in this respect. I have also taken into account that there is a possibility of ongoing employment relationship consequent to the findings made above.

[15] Therefore, I make the following order:

Order

1. The arbitration award issued out by the second respondent under case number GAJB 22893/18 is reviewed and set aside in so far as the relief awarded, paragraph 43 of the award is substituted with an order that:

1.1 The third respondent is ordered to reinstate the applicant retrospectively to the date of dismissal less the compensation awarded by second respondent (if paid) within 14 days of this award.

2. There is no order as to costs.

M Baloyi

Acting Judge of the Labour Court of South Africa