REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA HELD AT CAPE TOWN

CASE NO: C 548/2009
In the matter between:

and

JUDGMENT

^Adecco runs the administration of the staff member (Receiving of approved Time sheets, working out salary and taxes, UIF, WC, RSC, SDL and all legal costs, physical payment of the salary through bank transfer and payment of all legal costs, annual declarations, IRP 5 and wage slips).

^Adecco South Africa, herein after (sic) referred to as the Employer, hereby agrees to employ K Dyokhwe (Name) 5309165546086 (ID No) hereinafter referred to as the Assignee on a Fixed
Term Contract Defined by Time as Asst (job title) with effect from 07.07.03 (Date) to	-	

1.1.	You will be employed primarily in the capacity of Asst Reporting to L Williams employed at Mondipak.

4.	TERMINATION OF CONTRACT

Yours sincerely

BRANCH CONSULTANT
I have received a copy of this letter. I confirm that the contents thereof have been explained to me and that I understand and accept the terms and conditions of employment contained herein.

It is immediately apparent from the above that the document, although it was styled as a fixed term contract, in fact constituted nothing of the sort. The commencement date of the contract was provided, but the date of termination was not. Indeed, a line was drawn in the space provided for the termination date, indicating that the contract was open ended.

The 'contractors' employed by Adecco were advised to apply for permanent positions at Mondi and the third respondent so applied. In the event, however, the third respondent's application for permanent employment with Mondi was not successful and somebody else was permanently appointed to the position which he had previously held.

On 21 April 2009 arbitration proceedings between the third respondent (as the applicant) and Adecco (as the respondent) commenced before the Commissioner. The third respondent testified as to his employment with Mondi and his alleged dismissal. He was cross-examined by Mr Gary Howard ('Howard') who represented Adecco. In response to questions put by the Commissioner, the third respondent stated that it had not been explained to him that Adecco was a labour broker who could move him to any site at any time, nor was he told that he was entering into a temporary contract that would only last a short time. He also stated that the contract he had signed with Adecco had not been translated into isiXhosa, that he was not able to read and interpret it and did not know what it contained.

Howard elected not to call any witnesses on behalf of Adecco. After hearing argument, the matter was adjourned. On 1 May 2009 the Commissioner made an order in terms whereof Mondi was joined to the proceedings and the matter was set down for further hearing on 1 June 2009.

On 25 May 2009 Howard applied for a postponement of the hearing which was set down for 1 June 2009, because Mondi's material witness, Lange, would not be available inasmuch as he would be engaged in national wage negotiations on that date. The application for postponement was adjudicated upon by the Commissioner on 1 June 2009. On that date, Howard continued to represent Adecco and the third respondent appeared on his own behalf. There was no appearance on behalf of Mondi.

2009.

The Commissioner dismissed the first of the objections to jurisdiction on the basis that the certificate issued by the Bargaining Council certified that the dispute had not been resolved and did not constitute a binding ruling as to who the employer was. She further ruled that she was empowered to join Mondi, because the CCMA Rules made it clear that joinder did not affect steps which had already been taken. It appears that she intended to deal with the objection based on operational requirements if and when that should arise in the course of the evidence.

After confirming that the witnesses for Mondi were available, the Commissioner decided to continue the proceedings on the following basis:

There was no objection by any of the parties to the aforesaid procedure being followed. Lange was sworn in and the Commissioner asked him, inter alia, to explain how it came about that the third respondent, who had been employed by Mondi in 2000, ended up concluding a contract with Adecco and how it came about that the third respondent lost his employment. Once Lange had answered the Commissioner's questions, the third respondent and Howard were each afforded an opportunity to cross-examine Lange. On completion of Lange's testimony, Manuel was called to testify. A similar procedure was followed whereby the arbitrator asked certain questions, whereafter the third respondent and Howard cross-examined the witness.

On conclusion of the aforesaid evidence, Howard and the third respondent were each afforded an opportunity to address argument to the Commissioner, whereafter the arbitration was adjourned for the Commissioner's decision.

There is no formal application before this Court for the review of the Ruling which the Commissioner made that Mondi be joined to the proceedings. I am, in any event, satisfied that it was appropriate for the Commissioner to join Mondi inasmuch as the evidence tendered by the third respondent tended to establish that Mondi was his employer. Mondi clearly had a direct and substantial interest in the proceedings before the Commissioner.

As is apparent from the aforegoing synopsis of the events at the arbitration, Mondi was not a party to the proceedings when the third respondent testified and was not present when he did so. Moreover, although the Commissioner had joined Mondi as a party to the proceedings, there is no indication on the record of the proceedings before her that it was afforded the rights which a party to the dispute was entitled to. It is not apparent from the record that Mondi was apprised of the evidence which the third respondent had given, that it was afforded an opportunity to cross-examine the third respondent, or that it was informed of the consequences attendant upon a failure to cross-examine the third respondent. Mondi was not offered an opportunity of leading its own witnesses and was not asked which witnesses, if any, it wanted to call. There is also no indication that it was afforded an opportunity to present any argument to the Commissioner as to why it ought not to be found to have been the employer of the third respondent. The fact that Mondi was effectively denied these rights clearly constitutes an irregularity in the proceedings before the Commissioner.

Mr Kahanovitz submitted that Mondi and Adecco were invited, in the third respondent's answering affidavit, to explain the actual prejudice which it allegedly suffered and that they had not done so, nor did they explain why neither of them asked for the applicant to be returned to the witness stand so that he could be cross-examined. Mondi's response on the papers was that it was not up to the parties to request that a witness be cross-examined, but that the function rested squarely with the Commissioner to ensure that each of the parties was given a fair opportunity to present evidence, as well as to cross-examine an opposing party's witness.

In my view, the irregularity in the instant case, albeit procedural, was of a serious nature and had serious consequences for Mondi. Indeed, the irregularity denied Mondi a fair hearing of its dispute. It became a party to the proceedings due to its joinder, but it was not treated as such, nor was it afforded the rights which a party to litigation normally has. Mondi was evidently not apprised of the evidence tendered by the third respondent and was denied the opportunity of eliciting evidence in its favour through cross-examination of the third respondent. On completion of the testimony of Lange and Manuel, Mondi was not asked whether it wished to call any other witnesses, nor was it given an opportunity to present argument in regard to the merits of the case in general, or in regard to the finding as to who the employer was, in particular. The prejudice to Mondi is readily apparent
- it was denied a fair hearing of its case.

However experienced a party's representative may be and irrespective of whether a party is legally represented, it remains the responsibility of the presiding officer to ensure that all of the parties before him/her receive a fair hearing of their dispute. In circumstances where parties are not legally represented, such as in the instant case, the presiding officer ought to take particular care to ensure that each of the litigants receives a fair trial.

It is clear from what has been stated above that Mondi was indeed prejudiced by the irregularity which occurred and that it has accordingly made out a case for the review and for the setting aside of the proceedings before the Commissioner.

The further issue that must be determined is whether or not the application for review must be granted, given that Adecco has not been joined to the application. Adecco clearly ought to have been joined to the application before this Court inasmuch as Mondi contends that it was the employer of the third respondent. I am, however, satisfied that undue delay would occur if the matter had to be postponed at this stage in order to join Adecco to the application. Moreover, given that proceedings before the CCMA will commence afresh in terms of my order, there does not appear to me to be any true prejudice to Adecco if the matter were to be remitted. It will be afforded an opportunity to present its case afresh. It must also be borne in mind that Adecco had, in any event, alleged that it was the third respondent's employer. Consequently any subsequent finding in terms whereof it might be declared to be the employer would merely confirm its own allegation.

The only remaining issue for determination is the costs of these proceedings. Mondi has asked for a costs order in its favour as against the third respondent.

In my view, the irregularity in the proceedings was not occasioned by the third respondent, who appears to be a relatively unsophisticated person. In such circumstances, it would appear to me to be unfair to visit the third respondent with a costs order.

The following Order is accordingly hereby made:

1.     The Arbitration Award made by the First Respondent on 8 July 2009 under case number WE4323-09, is hereby reviewed and set aside.
2. 	The dispute between the applicant, third respondent and Adecco Recruitment Services (Pty) Limited is remitted to the Second Respondent for arbitration afresh before a senior Commissioner other than the First Respondent.

3.	No order as to costs is made.

A M DE SWARDT, A J

For Third Respondent:     	Mr C S Kahanovitz S C instructed by Legal Resources
Centre