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Not reportable

The Labour Court of South Africa,

held at CAPE TOWN

Case No: C837/2018

In the matter between:

BUSISWA BEWUZA	Applicant
and
CCMA	First Respondent
PARVATHI PATHER N.O.	Second Respondent
BUKHARA RESTAURANT	Third Respondent

Date of hearing:                   2 July 2021

Date of judgment:                2 July 2021                                                              

Summary: (Unopposed Review – Interpreted evidence in coherent- facts not properly considered and award unenforceable remitted to the CCMA.

JUDGMENT

HARVEY AJ

Introduction

[1]       This is an unopposed review application.  The applicant asks the court to review and set aside an arbitration award, in which it was held that her dismissal was fair.

Background

[2]       The applicant, Ms Bewuza, had worked for Bukhara Restaurant in Cape Town as an assistant chef for over eleven years when she was dismissed on 20 June 2018.

[3]       The applicant is unrepresented.  Her application is brought using the Labour Court’s pro-forma notice of motion and founding affidavit. Despite being unrepresented the applicant has complied with all the rules of this court.  The award having been given on 10 August 2018, the applicant delivered the review application on 30 August 2018, after properly serving on the respondents.  In early February 2019 she delivered the transcribed record of the arbitration hearing, together with a Rule 7A(8)(b) notice to abide. 

[4]       The third respondent employer, Bukhara Restaurant, has filed no papers.  Nor did it attend the arbitration hearing.  This is perhaps unsurprising, as Bukhara Restaurant is in all probability a trading name and not a legal person.  I shall return to this point later.

The arbitration hearing

[5]       The facts, as they appear from the transcribed record of the hearing, are unclear.  The version before the arbitrator is incoherent, on account of poor interpretation, coupled with what appears from the record to be the impatient attitude of the arbitrator.  

[6]       The applicant, who represented herself, testified that she had missed a shift.  Whether this was on Sunday 6 May 2018 or Monday 7 May 2018 is unclear, as is her reason for and the circumstances in which she missed the shift.  The applicant told the hearing that the chef told her to work a different shift, or a split shift; also, that she was not feeling well. 

[7]       A hearing was held before her dismissal; the applicant testified that she was not given sufficient time to put her side of the story, but answered ‘yes, commissioner’ to the series of short tick-box questions put covering other formal aspects of procedural fairness.  She was owed 12 days leave pay.

The arbitration award

[8]       In the arbitration award, the arbitrator remarked upfront that “There was no appearance on behalf of the respondent, Bukhara Restaurant.  The applicant was unable to give the full citation of the respondent.”

[9]       The arbitrator recorded that the applicant had stayed away from work on 6 May 2018 because the chef told her to come for night shift, and that “On the 7 May 2018 when the applicant returned to work, she was not feeling well.  She called the manager and told him she was running late.  An argument arose between the applicant and the manager and she put down the phone. The applicant did not show up for work on that day.”  The first and last sentences of this paragraph are obviously incompatible, and this particular factual sequence is not borne out by the record.

[10]    The arbitrator held that the applicant’s dismissal was substantively and procedurally fair: the applicant was dismissed for failing to report for duty without authorisation, she had prior warnings for failing to report for duty, and she had conceded that the procedure was fair.  The arbitrator ordered the respondent to pay to the applicant R1,677.72, being her outstanding leave pay.

Review grounds

[11]    In her pro-form affidavit, the applicant states that she wishes to challenge the award, which contains contradictions and paragraphs which are ‘untrue’.  She states that the arbitrator failed to listen to her version, and that there was a lack of communication between herself, the interpreter and the commissioner. 

[12]    The applicant is a lay person.  Her review grounds are not legally formulated, but it can be accepted that she is telling this court that the award is not reasonable based on the evidence presented at the arbitration hearing.

Evaluation

[13]    Having perused the transcribed record and compared it to the award, I agree.  The applicant was unrepresented at arbitration, and there was a language barrier between her and the commissioner.  The commissioner had a duty to take care to ensure that she understood the facts of the applicant’s case.  Instead, she was evidently satisfied with an incoherent version of the facts, given through the interpreter.

[14]    Because the version on record is incoherent, no reasonable decision maker would have held that the dismissal was fair: it was, on the evidence given, not possible to make a finding as to the fairness or otherwise of the applicant’s dismissal.  The commissioner failed in her duty to grant the applicant a fair hearing by ensuring proper interpretation and sufficient time to understand the facts.

[15]    Secondly, the commissioner expressly noted that the respondent’s citation was legally incompetent.  The commissioner had a duty to take steps to properly identify the employer, not only to ensure that it be granted a fair hearing, but also to ensure that any award would constitute effective relief.  The commissioner knowingly issued an award (for outstanding leave pay) which was unenforceable.  This was a gross irregularity in the conduct of the arbitration proceedings.

[16]    The commissioner also made a mistake of fact, which was material and which in all likelihood informed the unreasonable result: in her award she recorded that the applicant was employed in April 2017, just a year before her dismissal, whereas the applicant testified that she was employed in April 2007.  That the applicant had over eleven years’ service will be a relevant factor when considering whether dismissal was a fair sanction for any absence-related misconduct as she may ultimately be shown to be guilty of.

Conclusion

[17]    I am satisfied that the arbitration proceedings suffered from gross irregularities and that the award is unreasonable.  The proper course of action is to remit the dispute for arbitration afresh so that it can be decided on the correct facts.  As was noted by the second respondent commissioner, there are concerns about the proper citation of the respondent employer (Bukhara Restaurant is in all likelihood merely the trading name of a legal entity) and the CCMA should accordingly take steps to ensure that it has an actual legal person before it at the reconvened arbitration.

Order

[1]       The arbitration award issued under case number WECT 12028-18 is reviewed and set aside.

[2]       The dispute is remitted for arbitration afresh by the CCMA before a commissioner other than the second respondent.

[3]       The CCMA is directed to determine the proper legal citation of the applicant’s erstwhile employer, Bukhara Restaurant, and to notify it of the date, time and venue of the arbitration hearing.

___________________

Harvey AJ

                                             Acting Judge of the Labour Court of South Africa

Appearances:

On behalf of the applicant:                        in person

On behalf of the third respondent:           no appearance

 

 

 

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