Minister of Correctional Service v Nkosi NO and Others (JR953/10) [2014] ZALCJHB 440 (21 August 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: JR953/10

In the matter between:

THE MINISTER OF CORRECTIONAL SERVICE

Applicant

and

V R S NKOSI N.O First Respondent

THE GENERAL PUBLIC BARGAINING SERVICE

SECTORAL BARGAINING COUNCIL

Second Respondent

PSA OBO JPK SMUTS

Third Respondent

Heard: 17 April 2014

Delivered: 21 August 2014

Summary: Application to review. Deemed dismissal in terms of clause 9.1 of Resolution 1 of 2006 of the General Public Service Bargaining Council. The binding effect of an agreement as to the existence of a dismissal. The employer seeking to rely on the deeming provisions of clause 9.1 of Resolution 1 of 2006, despite knowing the whereabouts of the employee.

MOLAHLEHI J

Introduction

[1] This is an application to review and set aside the arbitration award of the second respondent (the arbitrator) made under case number PSGA 794-08/09 dated 2 February 2010, in terms of which the dismissal of the individual third respondent hereinafter referred to as “the employee,” was found to have been unfair. It was for that reason that the applicant was ordered to reinstate the employee.

[2] The late filing of both the review application and the answering affidavit were following the agreement between the parties and having regard to the interest of justice condoned.

[3] The union, on behalf of the employee, has on the other hand applied for the dismissal of the review application on the ground of unreasonable delay in its prosecution.

[4] It is trite that in considering an application to dismiss a review application for want of prosecution, the Court has discretion to exercise. The discretion has to be exercised judicially. In considering the application to dismiss, account has to be taken as to whether it would be in the interest of justice either to grant or refuse the application. The extent and the explanation for delay are two important factors to take into account in considering whether to dismiss the review application for want of prosecution. The other important factor to take into account is the contribution of the respondent in the delay.

[5] In this matter, I do not intend dwelling into the background facts relating to the delay in the prosecution of the review application. It is important to note that the arbitration was decided on the papers which were presented before the arbitrator. In other words, no oral evidence was presented by the parties.

[6] There is no evidence of the employee ever placing the applicant on terms in terms of the delay in the prosecution of the review. In the context where the matter was considered on papers during the arbitration proceedings, there was no electronic recording of the arbitration proceedings and therefore what needed to be filed is the documentation which served before the arbitrator. The employee could, if he wished to avoid the delay in the prosecution of the review, also have arranged for the record to be filed in Court and thereafter approached the Registrar to place the matter on the roll.

[7] It is for the above reason that I do not believe that it would serve the interest of justice to dismiss the review application for want of prosecution.

The background facts

[8] The employee, who was prior to his dismissal employed by the applicant as a social worker was dismissed for absence from work for a continuous period of 30 days without authorisation. In dismissing the employee, the applicant relied on the provisions of clause 9.1 of Resolution 1 of 2006 (resolution 1 of 2006) of the General Public Service Sectoral Bargaining Chamber (the bargaining council). Clause 9.1 of the resolution reads as follows:

‘9.1 An employee who absents him/herself for thirty consecutive (calendar) days without permission or without notifying the employer shall be summarily dismissed. However, before dismissing the employee the employer must endeavour to establish the whereabouts of the employee. Upon the employee’s reappearance after desertion, he/she may not be reinstated. The employee must make written representations to the delegated authority within five (5) days from his/her reappearance, should he/she wish reinstatement/re-employment.’

[9] The relevant part of the notice of dismissal of the employee issued on 11 July 2008, reads: “Summary termination with effect from 2008/07/11.” Following his dismissal, the employee filed the appeal against the decision to terminate his services. The employee was subsequent to the filing of the appeal against his dismissal issued with a letter suspending him from duty pending the outcome of the appeal. The reasons for the suspension are stated in the letter of suspension as follows:

‘2.1 You have been automatically summarily dismissed for contravening the provision of Clause 9.1(Desertion/Abscondment) of the DCS Disciplinary Code in that you absented yourself from duty for more than 30 conservative days /calendar days without notifying the Head of Correctional Centre of your whereabouts.

2.2 The relationship of trust between yourself and the Department of Correctional Services has irretrievably or irreparably broken down.’

[10] The employee being unhappy with the termination of his employment by the applicant challenged the decision before the arbitrator who as indicated earlier found the dismissal to have been unfair and ordered that the employee be reinstated. The applicant now challenges the outcome of the arbitration hearing in this review application.

Grounds for review

[11] The key ground upon which the applicant relies on in challenging the outcome of the arbitration hearing is that, the arbitrator failed to determine whether there was a dismissal or not. The applicant contends in this respect that employment relationship came to the end because of the deeming provisions of clause 9.1 of the resolution.

[12] The applicant further contends that the arbitrator erred in finding that the dismissal was unfair because the applicant knew the whereabouts of the employee during the period of his absence. In relation to the attempts at establishing the whereabouts of the employee during his absence, the applicant states that it visited the Vista clinic where it was made to believe that that is where the applicant was as of 10 July 2008. The letter received from the Vista clinic indicates that the employee was admitted there from May 2008 to 13 June 2008.

The arbitration award

[13] As concerning the issue of jurisdiction, the arbitrator found that the employee had established the existence of dismissal. And in relation to the substantive fairness, the arbitrator found the dismissal to have been unfair in that the applicant knew the whereabouts of the employee because it served the letters of suspension and those of dismissal on the employee.

Evaluation

[14] The essence of the first point raised by the applicant in its challenge of the arbitration award is that the arbitrator failed to consider whether he had jurisdiction to entertain the dispute as formulated by the employee. The applicant contends in this respect that the employee was not dismissed but his contract was terminated “automatically and summarily” by the operation of the provision of clause 9.1 of Resolution 1 of 2006. It is common cause that there were no preliminary points raised during the arbitration hearing including the jurisdictional point. The jurisdictional point is raised for the first time in the review

application. The question that then arises is whether the applicant has made out a case that the arbitrator did not have jurisdiction to entertain the dispute?

[15] It is apparent from the reading of the papers before this court that the representative of the applicant conceded to the fact that the employee was dismissed. The concession was made at the commencement of the arbitration hearing. The arbitrator in his arbitration award records that there were no points in limine raised by any party to the dispute. It would appear that it was for that reason that he (the arbitrator) found that the employee had shown that there was a dismissal.

[16] The applicant contends that any reasonable arbitrator faced with the issue of abscondment in the context of this matter, would prior to determining the merits of the dispute investigate whether there was a dismissal. The applicant further contends that the arbitrator erred in law in not investigating firstly whether there was a dismissal.

[17] On the material before this court, I am unable to fault the arbitrator in concluding that the employee was dismissed and accordingly assuming jurisdiction to entertain the alleged unfair dismissal claim. The deponent to the applicant’s supplementary affidavit in dealing with the issue of the existence of dismissal of the employee states the following:

‘4.1 In representing the employer during the arbitration, I have made a fundamental mistake in agreeing with the employee’s representative that the dismissal has occurred.

4.2 I am advised that the facts of the matter, namely whether the first respondent absconded from duty or not, is of such a nature that any reasonable commissioner presented with such a question, would first investigate and determine whether a dismissal has occurred or not, irrespective of what submission or agreement the representatives make.’

[18] The validity of the agreement that the individual third respondent was dismissed was never challenged by the applicant. The applicant’s contention is, as stated earlier, that the arbitrator should despite the agreement have enquired as to whether there is a dismissal.

[19] In my view, the agreement amounted to nothing but an identification of the issues which the arbitrator had to determine. The approach which the arbitrator adopted in concluding that there was a dismissal is a correct one. It is well established in our law that an agreement between the parties which defines the issues which an arbitrator has to determine has a binding effect on both parties and the arbitrator is required to comply with such an agreement.[1]

[20] It is trite that jurisdiction is determined on the objective facts presented by the party seeking to challenge the jurisdiction of the dispute resolution body seized with the matter. In the present matter, even if the concession made by the representative of the applicant during the arbitration was to be ignored, the objective facts would not assisted the case of the applicant in relation to the proposition that the employee was not dismissed but that his contract terminated by the operation of the law in terms of the clause 9.1 of resolution 1 of 2006.

[21] It is generally accepted that where an employment contract is terminated by operation of the law, the provision of the unfair dismissal concept in the LRA does not apply because there is no decision to terminate the relationship by the employer. In other words, there is no dismissal by the employer but the employment relationship came to an end by operation of the law. The operation of the unfair dismissal concept comes into operation where the employer takes the decision to dismiss the employee.

[22] In the present matter, based on the concession made by the representative of the applicant, that the employee was dismissed and the material placed before the arbitrator, it is apparent that the arbitrator was faced with having to determine whether the dismissal of the employee was fair or otherwise. I will in a moment revert to the facts that support the proposition that the employee was dismissed and that the termination was not as a consequence of the operation of the law.

[23] I have already indicated that the dispute was by agreement between the parties determined on the basis of the documents submitted and that no oral evidence was led. The notice of dismissal of the employee dated 11 July 2011, was based on a memorandum dated the same date which sets out its purpose as that of seeking approval for the summary dismissal of the employee. The background to the reason for the recommendation that the services of the employee should be terminated is summarised in the memorandum as follows:

‘ On 11th March 2008, Mr Smuts JPK was ordered to resume his official duties with immediate effect, by the instruction of the Health Risk Manager as discussed on 8th March 2008. This decision was reached after a thorough consideration of the recommendation of the Health Risk Manager (…) and the instruction was never adhered to.

· Mr Smuts was ordered to assume duties on the 18th of March 2008.

· The Health Risk Manager is aware of the recent submission for the TIL, and to be informed of the result while at work.

· Failure to adhere to this instruction would in disciplinary measures being taken against him, which means he will be marked absent as from 19th of March 2008 in terms of clause 9.1 of the Disciplinary Code and Procedure-DCS Resolution 1 of 2006.

· Mr Smuts JPK failed to report for duty on 19th March until 16th of April 2008.

· On the 17th of April 2008 the static supporting for duty at the centre.

· On the 22nd of March 2008, he failed to report for his official duties and also his whereabouts up until today 11 July 2008.

· According to the information received from the A/C Corporate Mr Mathebula MG, it was said that Mr Smuts is admitted at Vista Clinic in Pretoria. I personally phoned him but failed to communicate with him.

· ON the 19th of July 2008, a delegation was sent to Vista Clinic for visit plus obtaining sick certificates, Vista Clinic had no admission the record of Mr Smuts JPK and they refused to check admission list for the previous months.

· Mr Smuts JPK’s salary was converted to cheque payments so that he should come and collect it from our office, but the last cheque received was for February 2008.’

[24] The memorandum recommended amongst other things that the services of the employee should be terminated in pursuance of clause 9.1 of DCS disciplinary code. It is also recorded in the recommendations that the employee failed to report his whereabouts “and his phone is invalid.”

[25] It is trite that having established the existence of the dismissal, the next enquiry which the arbitrator had to conduct concerned the fairness or otherwise of the dismissal. The employer bears the onus in terms of section 192 of the LRA of showing that the dismissal was for a fair reason. In the present matter, having determined that the employee was dismissed, the arbitrator proceeded to determine the fairness of the dismissal.

[26] Although the arbitrator does not in his arbitration award make any direct finding as to the interpretation and application of clause 9.1 of resolution 1 of 2006, he does approach the matter on the basis of its provisions. In this respect, the arbitrator notes that the case of the applicant was based on the provisions of clause 9.1 of resolution 1 of 2006. The finding that the dismissal was unfair is based on the second part of the resolution which requires the employer to endeavor to find out the whereabouts of the employee before dismissing him or her for being absent without permission and or notifying the employer. It is apparent from the reading of the record and on the version of the applicant that no attempt was made to locate the whereabouts of the employee. The deponent to one of the affidavits supporting the case of the applicant says that an attempt was made to contact the employee through his mobile phone to no avail. In the memorandum recommending the dismissal of the employee, it is stated that the employee’s cellphone was invalid.

[27] It is apparent from the reading of the arbitration award that the arbitrator rejected the version of the applicant, as presented on paper, that it did not know the whereabouts of the employee. The version was rejected on the basis that the applicant knew the whereabouts of the employee in that it served the letter of dismissal, letter of suspension pending the outcome of the appeal and also the final letter of dismissal following the appeal at the address of the employee.

[28] In light of the above, I am not persuaded that there is a basis for interfering with the decision of the arbitrator. In my view, the outcome of the arbitration proceedings properly evaluated and in particular taking into account the reasoning of the arbitrator, it cannot be said that the decision of the arbitrator is one which a reasonable decision maker could not reach.

[29] In light of the above, I find that the applicant’s review application stands to fail. I see no reason in both law and fairness why the costs should not follow the results.

Order

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

1. The application to dismiss the review application on the ground of unreasonable delay is dismissed.

2. The review application of the arbitration award made under case number PSGA 794-08/09 dated 2 February 2010 is dismissed with costs.

___________________

Molahlehi, J

Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant: The State Attorney

For the Third Respondent: Advocate RGL Stelzner SC

Instructed by: Basson Blackburn Inc

[1]The approach adopted by the arbitrator is in line with the approach often adopted where the issues for determination are set out in the pre-trial minutes. In this respect the LAC in NUMSA v Driveline Technologies (Pty) Ltd and Another [2007] ZALC 66; [2000] 1 BLLR 20 (LAC) at para 93, where the Court in dealing with purpose of the pre-trial minutes had the following to say: ‘[93]

The purpose of a pre-trial conference is for parties to try and redefine issues which emerge from the pleadings. If a party wishes

to introduce another cause of action or defence other than the cause of action or defence disclosed in the pleadings, such a party will usually be required to apply for an amendment first. The other party would then consider such application for amendment on its merits in due course and decide whether or not to oppose it. There may be cases where parties reach an agreement in a pre-trial minute the terms of which are such that a cause of action not covered by the pleadings cannot be introduced later – even by way of an amendment. However, in my view, before a court could hold this to be the case in a matter, the agreement of the parties would have to be clear and to leave no doubt that that is what the parties intended. And in Simelane and Others v Letamo Estate 2007 28 ILJ 2053 (LC) at para 6 the court held that pre-trial minutes was a consensual document “binding on the parties and obliges the court to decide only the issues set out therein.” (my underlining)