MDS International Skills (Pty) Ltd v Commission For Conciliation Mediation And Arbitration and Others (JR2187/11) [2013] ZALCJHB 313 (21 November 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

case no: JR2187/11

In the matter between:-

MDS INTERNATIONAL SKILLS (PTY) LTD …............................................Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION.................................................... First Respondent

COMMISIONER LUYANDA OLOTA N.O. …................................Second Respondent

GOPOLANG KESEKANG AND 14 OTHERS ….....................Third to Seventeenth Respondents

Heard: 12 March 2013

Delivered: 21 November 2013

Summary: Review of award of compensation where employer makes a bona fide offer of reinstatement.Rawlins v Kemp considered and applied.

CHETTY AJ

[1] The applicant in this matter, MDS International (Pty) Ltd, brought an application for review in terms of section 145 of the Labour Relations Act 66 of 1995 (“the Act”) seeking to set aside a ruling handed down by the second respondent (‘the

Commissioner’) in which the latter found that the applicant had unfairly dismissed the third to seventeenth respondents and ordered payment of compensation to each of the dismissed workers in an amount equivalent to three (3) month’s salary, calculated as at the time of their dismissal. The matter came before me as an unopposed application.

[2] The brief background to the dispute is that the third to seventeenth respondents are a group of artisans and labourers who were employed by the applicant, who conducts business as a temporary employment service, as contemplated in section 198 of the Act. It is common cause that at the time of their dismissals, the third to seventeenth respondents were working at the Lonmin Platinum Mine outside Rustenburg. The applicant outsourced their services to a company called Saxeni (Pty) Ltd, a civil and mechanical contractor which was carrying out work at the Lonmin mine. On 23 June 2011, a group of approximately 30 workers, including the third to the seventeenth respondents, went on their lunch break at noon.

[3] It was normal practice that Saxeni would provide meals for the employees as they lived some distance away from the Lonmin plant. On the day in question the meals however, did not arrive at all, and the employees spent the entire lunch break waiting for their food. There is a dispute of fact as to whether they were informed by an employee of Saxeni, known only as Ronnie, that the vehicle conveying their lunch, had broken down. According to the employees, as a result of no one coming forward to give them an explanation for the absence of their meal, they refused to return to work. The employees were clearly upset at the events since the meal interval, most probably exacerbated by the lack of any explanation or apology from Saxeni or their employer, not to mention having gone the entire day without food.

[4] The employees were then issued with an ultimatum to return to work by the site manager for Saxeni, Mr. Groenwald. Some of the group who engaged in the work stoppage returned to work, whereas the remaining employees, who comprise the third to seventeenth respondents, refused to yield to the ultimatum. At this stage, the site representative of the applicant, Mr. Stander, appeared on the scene and requested that the third to seventeenth respondents return to work. Their refusal to return to work caused the intervention of the Lonmin security guards, who instructed them to hand over their access cards to the plant and ushered them off the site. The employees were instructed to return to the plant the following morning.

[5] The employees returned to the site on the morning of 24 June 2011 and were requested to sign acknowledgments of final written warnings. The employees refused to sign the documents as they considered these to be documents signifying the end of their contracts’, or an acknowledgement that they were resigning from employment. In light of them refusing to sign the forms, the Lonmin security guards then ordered the third and further respondents off the site and they were taken back to their hostel. When they arrived at their hostel accommodation, the caretaker of the premises locked them out.

[6] At the arbitration, the applicant stressed that the hostel in question is owned by Lonmin and the caretaker who acted against the third and further respondents was not an employee of the applicant. In desperation, the employees sought the intervention of the Department of Land Reformation and Rural Development as they were essentially homeless. After negotiations between an official from the Department and Mr Stander, and an undertaking by the Department on behalf of the third to further respondents that they would not engage in any acts of violence or intimidation, the employees were allowed back into their accommodation at the hostel where the applicant arranged for them to remain, until shortly before the arbitration into their dismissals took place.

[7] It is also common cause that the third and further respondents declared a dispute with the applicant on 27 June 2011 arising out of an unfair dismissal and sought as their relief “reinstatement/compensation”. The matter was referred to arbitration at which the second respondent concluded that the third and further respondents were dismissed, that their dismissals were unfair and awarded them compensation equivalent to three (3) month’s salary.

[8] The contentions advanced before this Court on review are no different to those advanced before the second respondent at arbitration. In essence, the applicant submits that the second respondent misconstrued the evidence in concluding that the third to further

respondents had been dismissed. It contends that those persons responsible for the actions that led them to belief were not employees of the applicant, but rather a client of the applicant (Saxeni) or they were employees of Lonmin Platinum Mine. It is obvious that neither Saxeni nor Lonmin were cited as co-respondents in the arbitration proceedings. The third and further respondents contended that their dismissals came about as a result of the actions of the applicant, their employer at the time.

[9] The applicant’s contention is that the third to further respondents were not dismissed and that the first respondent, the CCMA, did not have jurisdiction. In the alternative, the applicant contends that the “dispute between the third and further

respondents against the applicant be determined by this Honourable Court in a manner which it deems appropriate”. An applicant

initiating an application for review is bound by the grounds of review set out in its founding papers. The notice of motion in this matter is confined to the relief that the third and further respondents were not dismissed. However, in the founding affidavit

the applicant cast the net wider to include a challenge against the sanction, contending that

‘Even if the third to 17th respondents were dismissed, which is not admitted, it is submitted that Vela Zulu’s refusal of Stander’s offer of reinstatement on 29 June 2011 was unreasonable and/or that there is no direct evidence that the other respondents also felt that the employment relationship had broken down irretrievably, alternatively that their view in this regard was unreasonable and not justifiable given the above circumstances.’

I am satisfied that the ambit of the review launched by the applicant embraced not only the aspect of whether the commissioner committed an irregularity in concluding that the third to seventeenth respondents were dismissed, but also whether the award of compensation was competent in the circumstances.

[10] With regard to the first ground of review, Mr De Bruyn who appeared on behalf of the applicant, submitted that the applicant did not dismiss the third to seventeenth respondents, but rather that their dismissal came about as a result of the conduct of employees of Saxeni and/or Lonmin. Much emphasis was placed by the applicant on the conduct of the security guards who dispossessed the third and further respondents of their access cards to the mine, effectively locking them out of the site on 23 June 2011, followed again by similar conduct on 24 June 2011. It was contended that there was no direct evidence “through word or deed” that the applicant dismissed the third to seventeenth respondents, nor of Stander forcing them to sign documents signifying the end of their contracts.

[11] It was submitted, in light of the aforegoing, that the commissioner misdirected herself as to the nature of the enquiry to be undertaken in determining whether or not there had been a dismissal of the third to the seventeenth respondents. The applicant relied on LAD Brokers (Pty) Ltd v Mandla[1] for the argument that the there was nothing pointing to the conduct of the applicant which suggests that the applicant dismissed the third to seventeenth respondents.

[12] In my view, the reliance on LAD Brokers is misplaced. That case concerned the nature of the enquiry to be undertaken in determining with which party an employment contract had been concluded in the context of a labour broker procuring the services of an employee, where those services are thereafter outsourced to a third party – giving rise to the so-called “tripartite” employment relationship. The commissioner was not convinced of the explanation that the Lonmin security guards were responsible for terminating the employment of the third to seventeenth respondents. I find her conclusion in this regard, based on the evidence before her, to be reasonable.

[13] It is clear that the third to seventeenth respondents refused to sign for their written warnings. This in itself was no basis for the applicant to regard it as a form of misconduct that would justify dismissal. The commissioner found that the applicant could have issued them with a warning for this refusal.

[14] It was submitted on behalf of the applicant that the commissioner ought to have focused more on the conduct of the employer rather than on the conduct of the Lonmin security guards. While the third to the seventeenth respondents may not have been ordered off the site by a representative of the applicant, it is clear from the record that Mr Stander did not do anything to prevent his employees from being put off the site, nor being evicted from their accommodation. Moreover, at the commencement of the arbitration proceedings, the applicant’s representative, Mr Nqoko, intimated that the third to seventeenth respondents were handed notices to appear at a disciplinary enquiry on 24 June 2011, issued by Mr Groenewald. There was no evidence led at the arbitration of an enquiry on the 24 June 2011, or of the final warnings that resulted therefrom. The applicant simply failed to produce any witnesses to corroborate this version.

[15] The evidence of Stander suggests that he was quite content for the Lonmin security guards to intervene at will. When there was no prospect of the parties resolving the matter amicably, the guards simply ordered the third to seventeenth respondents off the plant. The commissioner found that once the third to seventeenth respondents refused to sign final warnings for their conduct on 23 June 2011, the applicant did nothing to prevent their removal from the site where they were rendering services.

[16] The only reasonable inference to be drawn in the circumstances is that the Lonmin security guards assisted, either directly or indirectly, on the instructions, or with the acquiescence of Mr Stander. He also testified to having arranged for a taxi to pick up the dismissed employees to transport them from the Lonmin plant to the hostel. In this regard, the commissioner concluded that

‘Respondent argued that he never dismissed the applicants and instead he had sent them back to the hostel. It was discovered later that the applicants were denied access and evicted. One can draw an inference that by sending them to the hostel knowing that they will not be allowed to enter, was just a way to get rid of them. There are a number of options the respondent ought to have adopted to resolve the matter such as formally charge applicants and/or to transfer the applicants to another shaft/place if Lonmin does not want them on site. There is no proof or evidence that shows that the respondent had attempted to keep the employment relationship alive. Based on the above, I concur with [the] applicants that they were dismissed.’

[17] I find that the conclusion of the second respondent fell within the ‘range of reasonableness’ contemplated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[2]. I accordingly, find no basis to disturb the commissioner’s finding that the third to seventeenth respondents were dismissed.

There was no evidence of the dismissal having been effected for good reason or in a manner that was procedurally fair. The applicant’s

first ground of review is therefore dismissed.

[18] The next ground of review contended for by the applicant, relates to efforts made by its representative, Stander, shortly after the dismissals took place, to offer reinstatement to the third and further respondents. Mr De Bruyn submitted that the commissioner

committed a gross irregularity in concluding that compensation was an appropriate remedy despite the third and further respondents

rejecting an offer by the applicant for them to return to work. The commissioner found that the workers had taken a decision not to return to work and accordingly accepted that they regarded their employment relationship as having irretrievably broken down.

[19] It was contended that after the dismissals had taken place, Stander had made bona fide attempts to get the third to seventeenth respondents to return to work. In his testimony at the arbitration, Mr Vela Zulu confirmed that the workers were asked to return to work. However, they believed that the offer of reinstatement had been made only because of their referral of a dispute to the CCMA. During this time Stander also kept on communicating with the third to the seventeenth respondents from 24 June 2011 (being the date when they contend they were dismissed) through until Monday 27 June 2011, during which time he repeatedly urged them to return to work.

[20] It was also not disputed that after the employees had been locked out from their accommodation at the hostel and only after discussions with the Department of Land Reform and Rural Development and Stander were they allowed to remain at the hostels until 18 July 2011. Mr De Bruyn submitted that the actions of the applicant are not consistent with a party that has severed all ties with its employees or conduct signifying that there has been a breach of trust between the parties.

[21] The commissioner, however, concluded that the relationship between the parties had irretrievably broken down. The applicant contends that the commissioner committed a gross irregularity in arriving at this conclusion, inasmuch as it was one which is not sustainable based on the evidence of the employees’ witnesses at the arbitration. At the commencement of the arbitration, the commissioner enquired from the representative of the third to seventeenth respondents as to the relief sought

‘Commissioner: Next? Is it all of you [who] want to be compensated?

Mr Kesegang: Yebo

Commssioner: Will you tell me what you want to be compensated for what?

Interpreter: Compensated for the duration when they (indistinct) contract (inaudible)’

[22] The question is whether it was clearly evident that the relationship between the parties had broken down? Having found that the employees had been unfairly dismissed, section 194 of the Act mandates that the arbitrator must require the employer to reinstate or re-employ the dismissed employees, unless one of the circumstances set out in section 194(2)(a)-(d) exist. The applicant contends that there was no evidence from the third to seventeenth respondents to establish an exception under section 194(2). The applicant further contends that the evidence of one of the employees, Mr Modise, confirms that he always had the intention of returning to work. When an attempt had been made to revisit that evidence, the commissioner intervened and confirmed Modise’s evidence in chief that he had the intention to return to work following upon his dismissal.

[23] A second witness, Mr Zulu also confirmed under cross examination that he had the intention of returning to work. The following extract from his evidence is relevant to the issue of the relief awarded by the commissioner

‘Mr Nqoko: Commissioner, I would like to find out from Mr Zulu who gave him a call on Wednesday to go back to work?

Mr Zulu: Grant phoned (indistinct)

Mr Nqoko: Mr Zulu, do you think he was wrong, do you think it was wrong for him to call you back to work?

Mr Zulu: No, I do not think that, but he made a mistake, he could have phoned us before we came to the CCMA.

Mr Nqoko: Oh, so you were not interested in going back to work?

Mr Zulu: If I was not interested, I would not have come to the CCMA to refer.

Mr Nqoko: Meaning that you, your reason to come to the CCMA had nothing to do with you looking for your work, or getting your work back?

Mr Zulu: I came to the CCMA thinking that maybe they will be able to explanation (sic) as to why we were dismissed?’

[24] In his evidence, Stander testified that he believed that many of the employees would have returned to work but that they had been intimidated by a few among them. He further indicated that every time he tried to resolve the matter, the third to seventeenth respondents placed a precondition on the agreement, indicating that they wanted an undertaking that they would be employed for a further three (3) months. Stander was unable to give such an undertaking. The applicant, relying on the decision of Zondo JP in Kemp t/a Centralmed v Rawlins[3], submitted that on the uncontested version of the applicant’s witnesses and even on the third to seventeenth respondents’

witnesses’ version, Stander had made an offer to them to return to work after their dismissal.

[25] According to the evidence of Mr Zulu, the offer was rejected possibly because it was made after the referral of the matter to the CCMA. Notwithstanding that the employees had legitimate grounds to be upset over the non-arrival of their lunch on 23 June 2011, followed by the applicant and the Lonmin security guards causing them to leave the plant, there is no evidence to suggest that the applicant was not bona fide in offering to reinstate the employees, in all probability realising that it had unfairly dismissed them.

[26] In Rawlins v Kemp[4], the Supreme Court of Appeal expressed itself on the issue of whether compensation should be granted, stating that

‘The majority found that Dr Rawlins should not have been awarded compensation, while Willis JA was of the view that she should have been awarded compensation, but no more than six months’ remuneration. The principal reason for the decision of the majority was that Dr Rawlins had unreasonably refused the offer of reinstatement. Zondo JP expressed that as follows:[5]

‘[Dr Kemp] may have treated [Dr Rawlins] the respondent unfairly when he dismissed her in the manner in which he did but he had ‘a right to seek to right the wrong’ that he had committed by offering to put the respondent back in the position in which she would have been had she never been dismissed. It is what I call an employer's ‘right to right a wrong’. And, if the offer was genuine and reasonable, as it has been conceded on behalf of [Dr Rawlins] it was, I cannot see why [Dr Kemp] must be ordered to pay her compensation which would not have arisen if the respondent had accepted the offer of reinstatement. In my view it is very important to affirm the employer’s ‘right to right a wrong’ that he or she has made in these kinds of circumstances. If an employer unfairly dismisses an employee and he wishes to reverse that decision, he must be able to do so, and if the employee fails to accept that offer for no valid reason, the employer has a strong case in support of an order denying the employee compensation.’’[6]

[27] In dealing with the issue of whether compensation should have been granted where the employer had made repeated efforts to offer reinstatement, the Court noted that

‘No doubt Dr Rawlins genuinely felt that there had been a breach of trust. But these are two professional people who might be expected to resolve any acrimony that might earlier have existed. No objective grounds were advanced why any perceived breach of trust between them was not capable of being restored. Dr Rawlins chose not even to explore that possibility but rejected it out of hand. That is not how labour relations should be conducted and I agree that the rejection of the repeated offers of reinstatement was unreasonable and she has only herself to blame for her financial loss.’[7]

[28] Mr De Bruyn further submitted that the second respondent was aware of the LAC’s decision in relation to the issue of whether compensation should be granted in instances where an employee unreasonably refuses an employer’s offer of reinstatement. There is nothing on record to indicate how or what factors the commissioner took into account in deciding to award compensation. As far as Stander’s evidence is concerned, he testified that the employees were willing to sign for their final warnings provided that he would offer them a contract for a further three (3) months. This evidence was uncontested. The employees were unable to point to any factors which could cause a reasonable decision maker to conclude that the employment relationship had irretrievably broken down.

[29] In CUSA v Tao Ying Metal Industries and others[8] the Constitutional Court held that one of the duties of a commissioner is to determine the material facts and then to apply the

provisions of the LRA to those facts in answering the question whether the dismissal was for a fair reason. Whether or not an arbitration award or decision or finding of a commissioner is reasonable must be determined objectively with due regard to all the

evidence before him or her and what the issues were.

[30] In light of the commissioner not providing any reasons for her decision to award compensation in the face of an offer of reinstatement, and where the evidence reveals there was nothing to gainsay the version of the applicant that the offer was reinstatement was bona fide, I can only conclude that the decision reached by the commissioner fell outside the range of reasonable conclusions that a decision maker could come to in the circumstances. There is no basis on which the commissioner’s decision to award three (3) months compensation to the third to seventeenth respondents can be regarded as a decision which a reasonable decision maker could arrive at, based on the same facts.

[31] I accordingly, make the following order:

1. The decision of the second respondent to order the applicant to pay the third to seventeenth respondents compensation equivalent to three (3) months’ salary, hereby reviewed and set aside;

2. No order as to costs.

Chetty, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: Mr D de Bruyn of Deon De Bruyn Attorneys

For the 3rd to 17th Respondent in person

[1] 2002 (6) SA 43 (LAC).

[2] (2007) 28 ILJ 2405 (CC).

[3](2009) 30 ILJ 2677 (LAC).

[4] (483/09) [2010] ZASCA 102.

[5] Above, para 14.

[6] Above 3, 2690F-J.

[7] Above 4, para 18.

[8] [2009] 1 BLLR 1 (CC).