Misabeni Khosa And Associates v CCMA and Others (JR 2727/11) [2013] ZALCJHB 307 (3 December 2013)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO JR 2727/11

Not reportable

DATE: 03 DECEMBER 2013

In the matter between:

MISABENI KHOSA & ASSOCIATES....................................................................APPLICANT

And

CCMA........................................................................................................1ST RESPONDENT

COMMISSIONER N LEWABA.............................................................2ND RESPONDENT

SIYABULELA MAKUNGA....................................................................3RD RESPONDENT

Date heard: 28 November 2013

Judgment delivered: 3 December 2013

VAN NIEKERK J

Introduction

[1] This is an application to review and set aside an arbitration award made by the second respondent, to whom I shall refer to as ‘the commissioner’. In his award, the commissioner found that the third respondent in these proceedings had been unfairly dismissed and awarded him outstanding remuneration amounting to R 95,000 and a further amount in respect of the balance of the third respondent’s contract in the amount of R 360,000.

Material facts

[2] The material facts are recorded in the arbitration award. I do not intend to repeat them here save to state that the third respondent

was employed by the applicant in terms of a fixed term contract, for a period of 12 months, at a salary of R45 000. During the course of March 2011, the applicant failed to pay the third respondent the remuneration due to him. Despite the short payment, the third respondent continued to work for the applicant. The pattern of short payment and non-payment continued. On 24 June, the third respondent’s addressed a letter of demand to the applicant in respect of delayed and short payments since April 2011. The third respondent’s concerns were not addressed and had dire consequences for the third respondent, who was unable to meet his financial obligations. On account of his employer’s conduct, the third respondent resigned and claimed unfair dismissal on the basis that his continued employment had been rendered intolerable.

[3] At the arbitration hearing, the deponent to the founding affidavit, Khosa, the executive chairman of the applicant, states that the applicant’s legal representative at the time, a Mr. Wheatley, was not able to attend the arbitration. He requested the applicant’s general manager, a Ms. Ncongwane, to attend the arbitration proceedings held on 16 September 2011 to have the matter postponed. The commissioner refused the application. In his answering affidavit, the third respondent records that Ncongwane arrived at the arbitration hearing some 35 minutes late, stating that she had been held up in traffic. She further stated that Khosa had advised her that a lawyer was supposed to come. The third respondent further avers that Ncongwane could not provide the commissioner with any documentation claiming that the legal representative was ever on brief, nor could she explain why he could not be present. These averments are not denied; indeed; Ngonwane states that she only found out the reasons for Wheatley’s inability to attend after the conclusion of the proceedings.

[4] In the record of the arbitration proceedings notes that only the applicant party was in attendance. The commissioner is recorded as saying the following:

‘The respondent made a request for a postponement of the motivation for the request was simply that the legal representative designated to represent the responding party was not in a position to attend and no more. I do not find this application justifiable and there is no legal or factual ground upon which I can grant a postponement under the circumstances. The matter is going to proceed as scheduled.’

[5] As I have indicated above, the record read with the undisputed factual averment sin the affidavits filed by the parties indicate

that after the unmotivated postponement was sought and refused, the proceedings then continued in the absence of the applicant, after which the award under review was made.

Grounds for review

[6] While the applicant’s main complaint is the merits of the commissioner’s refusal to postpone the arbitration hearing,

that ruling is not the subject of review. The applicant attacks the outcome of the proceedings (i.e. the award itself) on grounds that relate to the commissioner’s refusal to postpone the hearing. The grounds for review are primarily that the commissioner committed a gross irregularity in the conduct of the arbitration proceedings, particularly in that he failed to advise the applicant’s

representative to give evidence where there was a clear need to do so, and to inform her of the consequences of failing to lead evidence in rebuttal of the third respondent’s claim. The applicant further contends that the commissioner ought to have had regard to the effect that Ncongwane is a lay person and that his ‘failure to guide the process… affected his finding on the evidence’. Finally, there is the issue of the computation of compensation. In particular, the applicant avers that the third respondent’s outstanding salary amounts to R 82,000 and not the sum of R 95,000 awarded.

Analysis

[7] The record reflects only the proceedings after Ncongwane had left. In so far as the engagement between her and the commissioner on the matter of a postponement is concerned, it is clear from the affidavits filed by the parties that Ncongwane arrived at the

arbitration hearing some 30 minutes late, with a brief only to request a postponement. At that stage, on her own version, she was

not aware of the reason for Wheatley’s inability to attend the hearing. The applicant also concedes that Ncongwane could not explain the reason for Wheatley’s absence, and that she discovered only afterward that he could not attend for personal reasons

[8] An applicant seeking a postponement of an arbitration is required, in terms of the CCMA rules, to file a proper application setting out a substantively sufficient reason for the proceedings to be postponed. Even when this is done outside of the time limit prescribed by the relevant rule, an applicant seeking a postponement on the day of the hearing is seeking an indulgence and must provide a full and proper explanation for the postponement sought. In the present instance, on the applicant’s own version, Ncongwane was hopelessly unprepared and simply not in a position to properly motivate any postponement of the proceedings. The attitude of the applicant that can be gleaned from the papers is one that regards a postponement as a right. To the extent that the grounds for review hinge on the refusal by the commissioner to postpone the proceedings, on the facts, the commissioner’s decision to refuse the postponement cannot be called into question.

[9] As I have indicated, the founding affidavit appears to be drafted on the basis that the ruling in the application to postpone the arbitration proceedings is not directly attacked. Rather, the deponent seeks to make out a case that the commissioner’s

failure to warn Ncongwane of the consequences of failing to lead evidence constituted a gross irregularity, and on the merits, at least to the extent that the deponent suggests that the third respondents was to blame for the applicant’s misfortunes. The latter submission is entirely misplaced in an application for review, seeking as it does to make out a case on the merits in circumstances where none was proffered at the arbitration hearing. To the extent that the merits of the commissioner’s award are attacked on the basis of the conduct of the commissioner (specifically, a failure to extend a ‘helping hand’), the grounds for review appear to ignore the fact that Ncongwane had left the proceedings before they commenced, at least in respect of the substantive issues raised by the third respondent’s referral. There is a dispute on the papers as to whether or not the commissioner advised Ncongwane of the consequences of the applicant failing to lead evidence or of her leaving the proceedings and, as I have indicated, the record is unhelpful in this respect. It is incumbent on an applicant in review proceedings to furnish the full record, supplemented with notes or reconstructed records of those matters not appearing on the record furnished by the CCMA. The applicant has failed to produce any record of the proceeding that gainsay the third respondent’s averments that Ncongwane was afforded time to prepare for the hearing or to call another person to assist so that the matter could proceed after

an adjournment. Nor is there any record to gainsay the averment that the commissioner warned the applicant’s representative of the consequences of leaving the hearing, and in particular that the arbitration would proceed in her absence. In any event, these are issues that are relevant to an assessment of the ruling on the application to postpone, which is not what the applicant seeks to review. In relation to the substantive outcome of the proceedings, this court is entitled to intervene if and only if the commissioner’s decision is one that falls outside of the band of decisions to which reasonable decision-makers could come on the available material. This is not the case that has been made out by the applicant which, as I have indicated, attacks the award purely on the basis of the commissioner’s process-related conduct (or more accurately, a series of omissions by the commissioner) and a series of submissions more appropriate to an appeal.

[10] During the hearing of the application I raised with the parties the formulation of the award of compensation and the basis on which the quantum was computed. I noted that it seem to me that the formulation employed by the commissioner was cast in the language of contractual damages, rather than an assessment of what compensation might be reasonable in the circumstances. On reflection, I am satisfied that the award is properly one of compensation (this much is reflected from the preamble to paragraph 7.2 of the award). An award of compensation for unfair dismissal calculated on the basis of the contractual damages suffered by an unfairly dismissed employee is not in itself reviewable, provided that it is cast as an award of compensation and not contractual damages. Indeed, the courts have recognised that patrimonial loss is a factor that must necessarily be taken into account in any assessment of compensation. The sum awarded to the third respondent may reflect the damages suffered by the third respondent, but it is cast as an award of compensation and does not fall outside of the band of decisions to which reasonable people could come on the available evidence. However, the parties agree that the amount reflected in paragraph 7.2.1 of the award is the consequence of an incorrect calculation by the commissioner and that it should read R 82,000.00. I intend to correct the award to address this error.

[11] For the above reasons, subject to the correction to which I have referred, the application for review stands to be dismissed. Finally, there is no reason why cots should not follow the result.

I make the following order:

1.The application to review and set aside the second respondents arbitration award is dismissed, with costs.

2.The award is corrected to the extent that the amount of R 95 000.00 in paragraph 7.2.1 of the award is corrected to read ‘R 82 000.00’.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

APPEARANCES

For the applicant: Mr. A Goldberg, Goldberg Attorneys

For the Third Respondent: Adv. ME Mathaphuna, instructed by DMS Attorneys