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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

DATE: 27 JULY 2015

Case no: JR1641/13

Not Reportable

LEONDALE SECURITY SERVICES CC.............................................................................Applicant

And

COMMISSIONER FOR CONCILIATION,

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

DOCRAT, HASSIMA BAMU (COMMISSIONER).............................................Second Respondent

NOLLY SELOWA.......................................................................................................Third Respondent

Heard: 10 July 2015

Delivered: 27 July 2015

JUDGMENT

HULLEY, AJ

[1] This is an application to review and set aside an arbitration award issued by the second respondent in favour of the third respondent.

[2] The third respondent had been in the employ of the applicant.  A dispute arose regarding the termination of his contract of employment and he referred the dispute to the CCMA.  The applicant denied that he had been dismissed and contended that he was on a fixed-term contract which had come to an end.

[3] The second respondent rejected the applicant’s contention.  She found that “a dismissal has been established” and that it was both substantively and procedurally unfair.  Based upon the aforesaid she ordered the applicant to pay to the third respondent an amount of R15 133.20 which was the equivalent of his monthly remuneration over 6 months.

[4] In its founding affidavit in the review proceedings the applicant contended that:

“During the hearing the commissioner was insisting the 3 respondent (sic) was dismissed and the (sic) was no contract of employment and there was no enough reasons of terminating this contract. His contract was supposed to end on the 2015.  The respondent 3 (sic) was never dismissed by the applicant, what happen (sic) his contract with the applicant expired as they (sic) was nothing binding the company to renewal [of] his contract of employment.”

[5] When dealing with the grounds of review the applicant stated:

“I would like this case to be heard again as I have raised valid reason to the commissioner.  But the commissioner did not apply her mind when awarding this award.

i. The contract was binding.

(ii The respondent understand that he was on a contract of a certain period.

(iii. The commissioner was biased (one sided).”

[6] Attached to the founding affidavit in the review application was a two-page affidavit on the letterhead of the applicant.  No reference was made to this document during the course of argument.

[7] In this document the applicant essentially raised the point that the third respondent had signed a fixed term contract of employment, that he (the third respondent) was educated and must have understood the terms of the contract, that he had signed each page of the contract twice which was indicative of his awareness of the contents and that the arbitrator “has no jurisdiction to make an award against a valid Fixed Term Contract signed by both parties”. 

[8] At the arbitration proceedings only two witnesses testified, the one being Mr Simon Maswanganye and the other the third respondent.  The second respondent followed a rather curious route in her attempt to obtain the evidence from the witnesses.  Having sworn both witnesses in simultaneously, she then explained to them that:

“The respondent [the applicant in casu] will be given an opportunity to present his case, he will be having an opportunity to call any witnesses.  The applicant [the third respondent in casu] will have an opportunity to cross-examine the evidence presented by the [applicant], all the [applicant’s] witnesses.  And the [applicant] [will] have an opportunity to reply or answer today.  The same opportunity will be afforded to the [third respondent], he can present his case, evidence in chief, he can be cross-examined by the [applicant] and then he may be respond in terms of a reply and an answer, but purely on the basis of what the issues are, no new evidence.”

[9] It is not clear to me precisely what the second respondent had in mind, but what she appears to have intended was the ordinary adversarial trial process.

[10] Whatever she had in mind, what unfolded subsequently bore no resemblance to the ordinary trial process.  It certainly bore no resemblance to what the second respondent explained above.

[11] Nevertheless, this aspect does not appear to have been raised as a ground of review and I do not intend relying upon it for the purpose of this judgment, save to make the point that the inadequacy of the process has rendered it very difficult to understand how the second respondent came to her decision.

[12] At the outset of the proceedings, Maswanganye handed in three documents, copies of the contract, a reminder letter and a time sheet.  The only document which I need not consider for present purposes is the contract of employment (the reminder letter has some relevance, but it depends upon the prior existence of the fixed-term contract).

[13] Most of the contract is in typed form.  It contains the name of the applicant in big bold letters at the top of the first page and is headed “CONTRACT AND CONDITIONS OF SERVICE AND DISCIPLINARY CODE”.

[14] Below the heading it has the following typed words and gaps:

“_____ MONTHS AND ______ DAYS FIXED TERM CONTRACT FROM _______ TO _______”.

[15] In handwritten manuscript the gaps were filled in as follows:

“SEVEN MONTHS AND 14 DAYS FIXED TERM CONTRACT

FROM 01-11-2012 TO 20-06-2013”.

[16] The last page of the contract contained similar information. The employee party was required to indicate by signing that page that he or she acknowledged that before doing so he or she agreed to the conditions and was certain that he or she understood them.

[17] There is little doubt that the document, on the face of it, purported to be a fixed term contract.  That not only appears from the wording to which I have just referred but from clauses within the body of the contract itself.  For instance, on the second page of the contract under the heading “Fixed Term Contract” it is recorded that:

“THIS IS A SIGNED FIXED TERM CONTRACT AND TIES YOU TO WORK FOR LEONDALE SECURITY SERVICES CC FOR A PERIOD OF SEVEN MONTHS AND 14 DAYS FROM DATE OF SIGNATURE”.

[18] The underlined portion was inserted by hand.

[19] It is then recorded in larger font and underlined that the contract would not be automatically renewed and expired at the end of the contract period.  It recorded that in order to qualify for re-employment a new contract would have to be signed, agreed and accepted.

[20] Maswanganye testified that the third respondent had a Standard 10 education and it could not be said that he did not understand the terms of the agreement.  Maswanganye explained that the third respondent had not been dismissed but that his contract had simply come to an end at the end of its period.

[21] It is difficult to understand precisely what the third respondent’s case was.  Initially he contended, when putting questions to Maswanganye, that he had never received this document and had not signed it.  He pointed to the date indicated on the agreement, i.e. 20 May 2013, and claimed that he was not present at the company’s site on that date.

[22] Later, when asked by the second respondent to explain whose signature appeared on the document, the third respondent stated “this signature is what I said when we signed the contract, we signed the blank page”.  He then pointed out that the information which was in handwritten manuscript was not contained in the document at the time of his signature and that those dates had in fact been left out.

[23] Subsequently he explained that the document was not the same document and did not have the name of the applicant at the top of the document.  In response to that the second respondent again asked the third respondent how his signature came to be on the contract.  This time he stated that it was not his signature.

[24] The third respondent, in response to Mr Maswanganye’s contention that there were no pages which were signed in blank, stated:

“As you know, if you are looking for a job and you are desperate, you say sign here and sign here and besides you need to work, they confused you.”

[25] The arbitration award of the second respondent contains a survey of the evidence which in some respects is not entirely accurate with what is contained in the transcribed record.  For instance, in paragraph 12.2 (the award wrongly referred to paragraph 11.2) the second respondent recorded that the applicant, when presented with the documents for signature, requested an opportunity to read them first but was asked “whether or not he wanted to read the documents or wanted a job – he needed work and thus signed the documents”. This was not the third respondent’s evidence.  Similarly, in paragraph 12.3 (it is again wrongly recorded in the award as paragraph 11.3), the second respondent stated that evidence showed that the third respondent “was assured that he had a long term contract and that his employment would only end if he committed misconduct”.  I could not locate any such evidence.  There are additional errors.  It seems that the second respondent had acted as the conciliating commissioner in the proceedings; it is likely that some of the information supplied during that session unwittingly filtered into the arbitration proceedings.  I do not think these errors are material to the outcome and make nothing of them in arriving at my conclusion.

[26] In assessing the respective versions the second respondent stated that the third respondent was “confident and sure of himself.  I found his testimony credible”.  She noted that it was “not improbable” that the third respondent signed an incomplete document “under the duress of which he testified”, and pointed out that it would “then be most convenient for the employer to simply insert the termination date of the contract at a time suitable to them or their client”.  The second respondent went on to state:

“This and other ploys by employers to bypass fair employment procedures relating to dismissals are regrettably common, but hopefully a declining feature brought to the table at the CCMA and other dispute resolution forums”.

[27] Maswanganye, on the other hand, did not make a good impression on the second respondent.  According to her award he “made for a very guarded witness; he was not forthcoming with his evidence or information” and “said very little to defend his case only that it was a fixed term contract with a commencement date and an end/termination date and that employees were aware of same”.  She found that Maswanganye “was not willing to take this honourable commission into his confidence”.  The second respondent then found that the fixed-term contract was not a valid contract because, so she said –

“after considering the probabilities, I find that the [applicant] indeed coerced (‘fear of not being employed’) the [third respondent] into signing an incomplete document which enabled the employer, at its sole discretion, to terminate the employment relationship on a date convenient to the employer”.

[28] In this regard she found that on a balance of probabilities the employer had inserted the start and end dates which implied that at the time when the contract was concluded “there was no meeting of the minds”.

[29] As noted previously, there was a dispute whether the third respondent’s services had come to an end as a result of a dismissal or whether it was the consequence of a termination by effluxion of time under a fixed-term contract.  That dispute went to the heart of the jurisdiction of the arbitrator.  In the absence of a dismissal, the arbitrator had no power to entertain the dispute.[1] 

[30] This legal nicety appeared to have escaped the representatives, both of whom argued the matter on the principles set out in Sidumo[2].  After argument and during the course of preparation of the matter I drew the attention of the parties’ representatives to the judgment in SA Rugby Players’ Association and invited them to address me on the applicable standard of review and any further representations regarding the relief sought.

[31] Both parties submitted further submissions.

[32] Ironically, the applicant’s representative[3] submitted that the correct standard was that set out in Sidumo “as elaborated on in the Goldfields[4] matter”.

[33] On the other hand, the first respondent’s representative, appreciating the predicament presented by SA Rugby Players’ Association, submitted that the principle set out in that case and subsequent cases was wrong, that the question of whether there was a dismissal was not a jurisdictional fact and, on the assumption that SA Rugby Players’ Association was wrong, that the correct standard was indeed that set out in Sidumo.

[34] In the alternative, the first respondent’s representative argued that if the SA Rugby Players’ Association test was applicable, “there is sufficient evidence that the first respondent was dismissed”, but if I was not satisfied that there was, that the matter be remitted to the second respondent for a hearing before a different commissioner.

[35] I will deal with these arguments below.

[36] It appears to be settled law that where there is a dispute as to a dismissal, the onus is upon the employee party to prove such dismissal.[5]  Since the existence of a dismissal goes to jurisdiction, it is for this court to determine whether a dismissal had been established.[6]

[37] The arguments raised by the first respondent’s representative have previously been considered by me in the related context of constructive dismissals.  In Distinctive Choice[7] I drew attention to the provisions of s. 191(5)(a) of the LRA and pointed out that it –

‘does not require the CCMA or bargaining council to arbitrate the dispute if there is 'a dismissal', as stated by the Labour Appeal Court [in SA Rugby Players’ Association]; it requires the tribunal to arbitrate the dispute 'if' the employee has 'alleged that the reason for dismissal' is one or several factors, including that the employer made continued employment intolerable. Thus, on a strict reading of the section, the relevant jurisdictional fact appears to be the existence of an allegation by the employee that the reason for his or her dismissal is one of the listed factors, not the existence of the dismissal.’[8]  (Emphasis added)

[38] I noted, however, that I was bound by the judgment in SA Rugby Players’ Association and accordingly applied the standard set out in that case.

[39] As recently as June of this year the Labour Appeal Court upheld the principle enunciated in SA Rugby Players’ Association and, remarking on the attempt by the Labour Court to overrule the principle established in that case, pointed out that –

‘the decision by the Labour Court about whether an allegation about a constructive dismissal triggers a jurisdictional issue or an issue about the merits of a termination of employment, was not competent for the Labour Court to make’.[9]

[40] The same holds true in the present case.

[41] In short, this court is not bound by any findings made by the arbitrator on an issue that goes to his or her jurisdiction.  The applicant’s apparent adoption of the higher standard of review must be ignored. This court is not bound by an incorrect concession of law.[10]

[42] Where the employer contends that the contract of employment came to an end as a result of a mutual agreement, such agreement may either have existed at the time when the contract of employment was entered into (as in the case of a fixed-term contract) or may have come into existence subsequently.  In either event, the primary question is whether such agreement existed, and the onus to prove that it did not exist rests upon the employee by virtue of the fact that he bears the onus to prove the existence of a dismissal.  If the employee fails to prove that such agreement did not exist, she must fail.[11]

[43] I am satisfied on the record as it stands that the version of the employer ought to have been accepted.  In the first instance, in order to determine the factual dispute one has to consider where the probabilities lie having regard to the credibility of the witnesses, their reliability, and the probabilities.[12]

[44] In the present case there were two diametrically opposed views, one being that the contract had been signed in blank and the other that the dates had been filled in.

[45] The first and most telling piece of evidence was the contract itself.  The third respondent challenged the authenticity of the document handed up, but that challenge must be seen in the context of the differing versions offered by the third respondent.

[46] At one stage the third respondent admitted to signing the document (contending only that the document was signed in blank), but later denied having signed the document altogether and disputed that the signature contained on it was his.  At the arbitration proceedings Maswanganye invited the second respondent to compare the signature which appeared on the document with that which appeared on the referral forms.  It is unclear whether such a comparison was performed.

[47] A court is entitled to conduct its own analysis,[13] but should do so with a great deal of circumspection.[14]  My own analysis of the third respondent’s signature with documents signed in this court suggests that they are identical.  I am, however, reluctant to rely upon my own analysis especially where I have not had the benefit of considering the original document and of doing so with the witnesses before me.  For the purpose of my finding in the present case, I place no reliance upon such comparison.

[48] That having been said, I am satisfied that the signature was that of the third respondent.  I come to this conclusion on a range of factors including the third respondent’s initial admission, the withdrawal of which was not adequately explained.  Indeed, the second respondent was herself satisfied that he had signed the document.

[49] In addition, if it was not the third respondent’s signature on the document it would have to be a forgery.  Yet the third respondent did not explicitly suggest a forgery and the probabilities were against such a conclusion.  After all, why would the employer go to the trouble of forging the document, when it had the power (which the third respondent alluded to) to require him to sign such a document at the outset?

[50] At any rate, assuming that the third respondent did mount a successful challenge the authenticity of the document, it would be of little assistance to him.  In order to discharge the onus which was upon him, he would have to produce the contract which he claimed to have signed.  I accept that he did not have that document because it was in the possession of the applicant, but it was never requested and unless he was able to prove the existence of such document and that its contents were consistent with his version, the best he could hope for was a form of absolution against himself, i.e. that it was impossible to determine where the truth lay and because he bore the onus he had to fail.

[51] In any event, while the third respondent disputed his signature, he did not challenge the contents of the document, save in respect of the name of the applicant (which appeared on the first page) and the handwritten portions.

[52] Once one accepts that the document produced by the applicant was the same as that signed by the third respondent (whether or not it was in blank), the third respondent’s version becomes all the more improbable.  There are a number of indications in the document that it was intended to be a fixed-term contract.  This much appears from the passages in the contract I referred to above.  On a casual consideration of the document the third respondent would have realised that some information had to be inserted in those blank spaces.  This realisation would have driven him to either make enquiries as to the dates to be inserted in the blank spaces or to accept whatever dates were subsequently inserted (I do not suggest or decide that he would necessarily be bound; I am only concerned with the probabilities at this stage).  He provided no evidence on this aspect.

[53] I further do not agree with the arbitrator’s assessment of the credibility of the respective witnesses. As indicated in my recording of the evidence, the third respondent’s version changed on several occasions, ultimately concluding that he had not signed the contract.  The second respondent herself found that the contract had been signed by the third respondent; and by implication she rejected his version.

[54] Nor, for that matter, could I find any justification for the arbitrator’s credibility findings in respect of Maswanganye. Her assessment of Maswanganye’s credibility appears to have been influenced by her preconceived notion that employers were wont to make use of “ploys” to circumvent the protection offered to employees by the LRA.  But this finding begged the very question it sought to answer, viz. whether the employer in casu had in fact done so.

[55] I turn now to consider whether the contract of employment was indeed signed in blank.  This question has largely been answered given the findings made by me above as regards the probabilities.

[56] If one considers the last page of the agreement it is clear that the applicant had signed specifically indicating that he appreciated the fact that the agreement is for a fixed term only.

[57] I am satisfied that there was sufficient evidence to demonstrate that the third respondent had indeed signed the agreement and that it was not signed in blank.

[58] With that in mind, I am satisfied on a reading of the agreement that the contract came to an end by effluxion of time and that the third respondent, accordingly, had not been dismissed.

[59] In my view this is not a case in which costs should follow the result. The issue which has proved determinative is not one identified by the applicant. Moreover, it appears that the employee is not a man of means.

[60] In all the circumstances, I make the following order.

60.1 It is declared that:

60.1.1 The third respondent’s contract of employment came to an end by effluxion of time;

60.1.2 The second respondent had no jurisdiction to determine the dispute.

60.2 The award delivered by the second respondent is reviewed and set aside.

60.3 There is no order as to costs.

Hulley, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

On behalf of the Applicant: Adv. I. Strydom

Instructed by: Erasmus Attorneys

On behalf of the Respondent: Mr L. Frahm-Arp (Attorney)

Instructed by: Fasken Martineau Attorneys

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