Aminto Precast and Civil Engineering CC v CCMA and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Moshoana J |
| Judgment Date | 17 March 2023 |
| Citation | 2023 JDR 2618 (LC) |
| Hearing Date | 16 March 2023 |
| Docket Number | JR 790/22 |
| Court | Labour Court |
Moshoana J:
Introduction
This is an unopposed application seeking to review and set aside an arbitration award issued by Commissioner Maputle Mohlala (Mohlala) in terms of which he found that the applicant, Aminto Precast and Civil Engineering CC (Aminto) has committed an unfair labour practice against Mr. Cukelo Johnson Mqokolo (Mqokolo). He ordered Aminto to reinstate Mqokolo into his position on the same salary and benefits as they applied at the date of his “dismissal” [suspension] and backpay him some money. Aminto was displeased and launched the present application. The application stands unopposed. I must mention that on the set down date, Mqokolo made an appearance. He filed no opposing papers. Having openly in Court discussed the matter with counsel for Aminto, this Court took an approach that saw Mqokolo being allowed to say his say even if he had not filed any opposing papers. This approach was actuated by expediency. Had this Court postponed the review application to the opposed roll, no purpose would have been served, since in a review application what matters, in my view, is what served before a commissioner not what the parties may wish to say ex post facto.
A further engrossing reason for this particular review application is that it turned largely on the law than facts. Had this Court removed the application to the opposed roll, the same application would return only dressed up with a
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Moshoana J
regurgitation of facts apparent from the transcript. The consequences of course are dire, because another judicial resource would be dispatched to reread the transcript, in the circumstances where this Court was in a position to deliver justice expeditiously. In my view, what makes a review application is the grounds and the record of the proceedings to be reviewed and set aside. The rest are panoplies that serves no important purpose.
Background facts
Mqokolo was employed by Aminto as a driver of heavy-duty vehicles. With the advent of Covid-19, Aminto like many other businesses faced a severe slump during the regulated lock-down period. As a result, Aminto had no work for Mqokolo during that period. Due to the prevailing situation, Mqokolo became a candidate for dismissal due to the operational requirements of Aminto. Mqokolo was engaged and it was decided that instead of dismissing him for operational requirements, he be laid-off for a short duration. Mqokolo disputes any discussion having been held with him. On his version, on 11 November 2021, he was still active with his driving functions. It is unnecessary in the present application to attempt any resolution of that dispute of facts.
Resultantly Mqokolo was given a written notice of lay-off effective 12 November 2021. The lay-off was to be reviewed in January-February 2022. Aggrieved thereby, Mqokolo initially referred a dispute alleging an unfair dismissal. Later the dispute was changed to one of unfair labour practice relating to suspension. Ultimately, the alleged unfair labour practice was arbitrated by Mohlala, who concluded that the lay-off of Mqokolo amounted to his suspension within the contemplation of section 186 (2) (b) of the Labour Relations Act [1] (LRA). As indicated above, Mohlala afforded Mqokolo a relief outlined above. Aminto is aggrieved hence the present application.
Grounds of review
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Moshoana J
Aminto alleges that Mohlala committed a material error of law in that the suspension contemplated in section 186 (2) (b) of the LRA is one limited to disciplinary measures. Additionally, Aminto alleges that Mohlala lacked jurisdiction over the matter since there was no suspension within the contemplation of section 186 (2) (b) of the LRA.
Evaluation
Like a dismissal, the existence of a suspension within the contemplation of the LRA agitates the question of jurisdiction. In the absence of a suspension contemplated in the LRA, the Commission for Conciliation, Mediation and Arbitration (CCMA) lacks the necessary jurisdictional power. The test for jurisdictional review is one of correctness as opposed to reasonableness. Similarly, a party alleging an error of law may attack the arbitration award on correctness or reasonableness grounds. The LRA does not define the word suspension, an unfortunate situation in my view. It only defines what a dismissal is. Therefore, the word suspension must be given its ordinary grammatical meaning. Grammatically suspension means a temporary cessation or prevention. In an employment context, a suspension must mean temporary cessation of work or prevention from performing work. When an employee is placed on a suspension, such an employee would be without work for the duration of the suspension.
The term lay-off grammatically means discontinue; discharge (an employee) permanently or temporarily, especially owing to shortage of work. Indeed, there are some similarities between a suspension and a lay-off. In both, an employee becomes without work for a duration. However, what sets a lay-off apart is that it only happens in situations where there is a shortage of work. A suspension happens even in instances where there is no shortage of work.
In an employment context, shortage of work serves as a basis to dismiss an employee due to operational reasons. Differently put, an...
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