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[2011] ZASCA 248
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Visser v Mopani District Municipality and Others (641/10) [2011] ZASCA 248; [2012] 3 BLLR 266 (SCA); (2012) 33 ILJ 321 (SCA) (1 December 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 641/10
In the matter between:
Jacobus Daniel Visser
…...................................................................
First
Appellant
and
Mopani District Municipality
…......................................................
First
Respondent
SA Local Government Bargaining Council
….........................
Second
Respondent
Fatima Cachalia N.O.
….................................................................
Third
Respondent
Neutral citation:
Jacobus Visser v Mopani District
Municipality
(641/10)
[2011] ZASCA 248
(1 December 2011)
Coram:
PONNAN, SNYDERS, LEACH, MAJIEDT JJA AND PETSE AJA
Heard:
10 November 2011
Delivered: 1 December 2011
Summary:
Labour Relations Act 66 of 1995
–
ss 145
and
193
– reinstatement after substantively and procedurally unfair
dismissal – confirmed on review by the Labour Court –
no
warrant for the Labour Appeal Court to interfere
ORDER
On appeal from: The Labour Appeal Court (Davis, Tlaletsi JJA and
Hendricks AJA):
1 The appeal is upheld with costs.
2 The order of the Labour Appeal Court is set aside and substituted
with the following:
‘
The appeal is dismissed with costs.’
JUDGMENT
SNYDERS JA (Ponnan, Leach, Majiedt JJA and Petse AJA concurring)
[1] This is an appeal from the Labour Appeal Court (Davis, Tlaletsi
JJA and Hendricks AJA), with special leave of this Court. The
appellant is the former Regional Director Fire and Emergency Services
in the employ of the first respondent, the Mopani District
Municipality. The first respondent dismissed the appellant on 21 May
2004. In terms of the bargaining council agreement of the
South
African Local Government Bargaining Council, the second respondent,
the dispute that arose from the appellant’s dismissal
was
arbitrated by the third respondent. The third respondent found that
the appellant’s dismissal was procedurally and substantively
unfair, and ordered his reinstatement in terms of s 193(1) of the
Labour Relations Act 66 of 1995 (the LRA). The first respondent
took
this award on review to the Labour Court (the LC) in terms of s 145
of the LRA. The LC dismissed the application and with
its leave the
first respondent appealed the decision to the Labour Appeal Court
(the LAC). As it is only the first respondent that
is opposing the
current proceedings, I shall continue to refer to it as the
respondent, unless specifically otherwise stated.
[2] The issue in this matter falls within a very narrow compass which
makes it unnecessary to traverse all the facts. The appellant
held
the same position with the respondent’s predecessor, the
Northern District Council, as with the respondent, until 2000
when
municipal restructuring occurred and the respondent succeeded the
former council. During September 2003 the respondent transferred
the
appellant from Tzaneen, where he had been stationed until then, to
Giyani. This transfer was to be governed by an agreement
entered into
under the auspices of the second respondent between the South African
Local Government Association, the South African
Municipal Workers’
Union and the Independent Municipal and Allied Trade Union (IMATU).
IMATU represented the appellant. The
appellant accepted his transfer
on condition that he receives a travel allowance for travel from
Tzaneen to Giyani as he lived
in Tzaneen and was unable to relocate
to Giyani.
[3] For three months the appellant continued to receive a travel
allowance from the respondent. After three months and a series
of
miscommunications and misconceptions, the respondent ceased payment
of any travel allowance to the appellant, whereupon the
appellant
went back to Tzaneen and reported there for duty. No negotiations
were entered into in terms of the bargaining council
agreement in
relation to the transfer and appellant’s expressed need for an
allowance. Despite some meetings the issue was
never resolved and on
21 May 2004 the appellant was notified that his services had been
terminated due to desertion. Thereafter
some attempt was made to
serve a notice on the appellant to attend a formal, belated,
disciplinary hearing, this ultimately took
place in the appellant’s
and IMATU’s absence, and resulted in the dismissal being
confirmed.
[4] In terms of the bargaining council agreement the parties then
went to arbitration before the third respondent who, on 23 November
2004,found the appellant’s dismissal to have been both
procedurally and substantively unfair. She made an award setting
aside the dismissal of the appellant, ordering his reinstatement,
ordering the finalisation of his transfer within 30 days of his
reinstatement and the payment of compensation for a period of two
months.
[5] The respondent did not abide the arbitration
award, but resorted to a review to the LC in terms of s 145, read
with s 158(1)(
g
),
of the LRA. The appellant applied simultaneously for the arbitration
award to be made an order of the LC.
[6] Unless a defect is found to have occurred in the arbitration
proceedings the LC is not at liberty to interfere with the award
of
the arbitrator. A defect occurs only in the limited circumstances set
out in s 145(2):
‘
(
a
)
that the commissioner –
(i) committed misconduct in
relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross
irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the
commissioner’s powers; or
(
b
)
that an award has been improperly obtained.’
1
[7] Having correctly reminded itself of the
limited jurisdiction to interfere as circumscribed in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) the LC concluded that the
decision reached by the arbitrator could not reasonably be labelled
as one which a reasonable decision
maker could not have reached. The
LC made an order dismissing the review application with costs and
confirmed the third respondent’s
award.
[8] The respondent remained disgruntled and with leave of the LC
appealed against this decision to the LAC. On the merits of the
appeal the court a quo came to the following conclusion:
‘
The
approach which has to be adopted by this court, is not whether it
would have found that the dismissal was justifiable, but whether,
on
the evidence which was placed before the [third] respondent, the
[third] respondent comported herself in regard to the decision
in a
manner which was congruent with that of the reasonable decision
maker. On any stretch of the test of reasonableness, in my
view,
there is no basis to overturn the decision of the [third] respondent,
either on the grounds of substantive or procedural
fairness, for
reasons which I have already set out.’
[9] Despite having applied the correct test in relation to the merits
of the appeal the LAC then embarked on a surprising course
in
relation to the award that followed. Without faulting in any way
whatsoever the award made by the third respondent, the LAC
mero
motu
embarked on an investigation of factors subsequent to the
award and made the following order:
‘
1 The
appeal is dismissed insofar as the fairness of the dismissal of the
[appellant] is concerned. It is upheld insofar as the
remedy is
concerned.
2 The order of the court
a
quo
is therefore set
aside and replaced with the following order:
2.1 The review application of
[third] Respondent’s decision to dismiss the [appellant] is
dismissed with costs;
2.2 The arbitration award issued
by the [third] Respondent on 23 November 2004, is altered so as to
read as follows:
The dismissal of the [appellant]
is declared to be both substantively and procedurally unfair.
The Respondent is ordered to pay
the [appellant] an amount of compensation, being 12 months
remuneration, calculated at the rate
of the [appellant’s]
salary at the date of his dismissal. Such remuneration is to be paid
to Mr Visser by 1 July 2010.
3 The costs incurred in making
the arbitration award an order of [court], are awarded in favour of
the [appellant].’
[10] When the LAC embarked on an investigation of facts that occurred
subsequent to the award in relation to a determination of
an
appropriate remedy, it acted as if it was sitting as a tribunal of
first instance and was therefore at large to impose such
remedy as it
deemed appropriate - which it was not. The LAC remained bound to the
same test in relation to the remedy as to the
merits of the appeal
before it. As such the LAC misconceived the nature of its function,
by imposing a remedy it regarded as appropriate
in the circumstances
having itself found that there was no ‘defect’ in the
award made.
[11] Consequent upon a finding that the appellant’s dismissal
was substantively unfair, the appellant was entitled, in terms
of s
193(1) to be reinstated. No facts were advanced at any stage during
the proceedings that met the requirements of s 193(2)
and justified
the refusal of his reinstatement.
[12] The factors that occupied the attention of the LAC arose only
during the course of that hearing. It comprised two aspects.
First,
that it took six years for the matter to ‘be finally resolved
by this court’. Second, that the appellant ‘did
not want
to go to Giyani’.
[13] There was no explanation before the LAC why the matter had taken
six years to reach it, and the LAC was alive to that fact
as it
concluded that ‘this court cannot come to any decision as to
why it has taken six years for this dispute to finally
be resolved in
this court’. Apart from the fact that it was the respondent
that persistently took the matter on appeal and
failed, systemic
delays have been known to occur. In
Shoprite Checkers (Pty) Ltd v
CCMA & others
2009 (3) SA 493
(SCA) para 33 this very aspect
was dealt with as follows:
‘
It is
true that the systemic failures referred to by Shoprite’s
counsel made life difficult for both parties. The delays in
no way
serve to detract from the correctness of Commissioner Mbha’s
reasoning. Nor do they bring the matter within the terms
of s 145(2)
of the LRA. It remains eminently reasonable. It should also be borne
in mind that, by the time the matter came before
the LAC, further
systemic delays had impacted on both employer and employee. The
answer is to eliminate systemic failure rather
than punish either
employers or employees unjustifiably. By interfering with the
decision of the arbitrator, the LAC was therefore
in effect
substituting its discretion for that of the arbitrator. That it was
not permitted to do.’
The LAC had no regard to this authority.
[14] In the absence of evidence about the cause of the delays and in
the face of systemic delays, the LAC, assuming that it was
entitled
to interfere with the award made, should not have unjustly punished
the employee – who was completely blameless
– as it did.
[15] That brings me to the conclusion reached by the LAC that the
appellant ‘[i]n substance . . . did not want to go to Giyani’.
This conclusion is contrived. It seems only to have arisen in the LAC
because of the fact that the appellant reported for work
in Tzaneen
after the respondent stopped payment for his transport to Giyani. The
conclusion is diametrically opposed to the third
respondent’s
finding on the merits, as confirmed by the LC and the LAC. It is
further contrary to the appellant’s persistence
in seeking
reinstatement. Significantly, the arbitrator never made a finding in
terms of s 192(2)(
a
) of the LRA, and the LC saw no grounds to
and therefore did not interfere with the award of reinstatement. The
evidence before
the LAC does not support the factual conclusion that
the appellant did not want to take up the position in Giyani. Thus
there was
no basis for the LAC to have resorted to s 193(2)(
c
)
of the LRA. It explained its decision thus:
‘
. . .
. it appears to me that this court should follow the approach which
was prefigured in section 193(2)(c) of the LRA which is
to ensure
that the unfairness which was visited upon the [respondent] should be
responded to by way of an award of compensation
and that the matter
should then be brought to finality.’
It seems that the LAC sought to arrive at an alternative remedy to
that of the arbitrator and the LC. But it was sitting as a court
of
appeal in respect of a LC judgment. And it must be remembered that
the LC had exercised its review – not appeal –
power in
respect of the arbitrator. Thus, given the provisions of the Act that
I have already alluded to, the LAC was not simply
at large to
construct such alternative remedy as it saw fit, particularly when
there was no proper factual foundation for it do
so.
[16] The perceived need to respond to an ‘unfairness which was
visited upon the [respondent]’ is not explained. It
was the
appellant that was unfairly dismissed. He was dismissed allegedly
because of desertion. That to the knowledge of the officials
in the
employ of the first respondent who took and thereafter communicated
the decision to the appellant, was false. He was then
subjected to a
review and appeal that were devoid of any merit. Despite that, the
LAC saw fit to issue an order that advantaged
the respondent at the
expense of the appellant.
[17] All of the issues that arise in this appeal were dealt with by
the Constitutional Court in
Billiton Aluminium SA Ltd t/a Hillside
Aluminium v Khanyile & others
[2010] 5 BLLR 465
(CC). The
facts in that case gave rise to the constitutional issue whether
systemic delays justify the development of a constitutional
duty to
inquire into post-judgment facts on appeal or review in order to
fashion an equitable remedy. The conclusions reached in
Billiton
apply to the facts and issues in this matter. It is apposite to quote
extensively from that judgment:
‘
I now
return to the argument at hand. It is that “systemic delays”
justify the development of a constitutional duty
for the Labour
Appeal Court to initiate an inquiry of its own into post-judgment
facts, even when the original order was justified
on the facts at the
time it was made and where no application to lead further evidence on
appeal was made by any of the parties
either. The answer to that
contention must, in each instance where it is aired, be determined by
an examination of the facts of
the particular case. A similar kind or
argument was raised, but rejected, in
Equity
Aviation, supra
[
Equity
Aviation Services (Pty) Ltd v Commission of Conciliation, Mediation
and Arbitration & others
[2008] ZACC 16
;
2009
(2) BCLR 111
;
2009 (1) SA 390
(CC)]. It needs to be rejected in the
present case as well.
It is true that there were
delays in this matter not attributable to the fault of the employer.
But it is not these delays that
caused the constitutional issue to
arise only at this late stage of the proceedings. What primarily
caused this issue to arise
was the employer’s failure to
implement the reinstatement order after it was given. A secondary
cause was its failure to
raise the constitutional issue earlier, at
least at the stage when the matter was heard in the Labour Appeal
Court.
Any appeal process carries its
own risk. In
Performing Arts Council of the Transvaal v Paper
Printing Wood and Allied Workers Union & others
[1993] ZASCA 201
;
[1994 (2) SA
204
(A)], Goldstone JA stated, in relation to the previous
Labour
Relations Act, that
:
“
Whether
or not reinstatement is the appropriate relief, in my opinion, must
be judged as at the time the matter came before the
industrial court.
If at that time it was appropriate, it would be unjust and illogical
to allow delays caused by unsuccessful appeals
to the Labour Appeal
Court and to this Court to render reinstatement inappropriate. Where
an order for reinstatement has been granted
by the industrial court,
an employer who appeals from such an order knowingly runs the risk of
any prejudice which may be the consequence
of delaying the
implementation of the order.”
The
circumstances of this matter, however, go beyond the mere fact of
that institutional risk. “Systemic delay” is often
also
caused by rich and powerful litigants who use their superior
financial capabilities to take the review and appeal opportunities
available to them to the very end in the hope of wearying out an
opposing litigant who may be in a less advantageous financial
position. Where that does not eventuate the “appeal risk”
is one way of dealing with this use (or abuse) of the legal
system.
In the present matter the employer eventually conceded that its
dismissal of the employee was substantively unfair. As
pointed out
earlier in this judgment, that concession should also have entailed
the recognition that reinstatement to the time
of dismissal was the
proper remedy. Objectively then, the employer should have realised at
the time the second arbitration award
was made that the reinstatement
remedy was a proper one. It was only its own failure to appreciate
that fact that set the review
and appeal process in motion. Its own
failure to raise the constitutional point it now advances, earlier,
at the Labour Appeal
Court hearing, merely compounded its own
remissness. And, finally, things were not helped when even in
argument before this Court
the employer did not abandon its hope for
an order of compensation rather than reinstatement.’
2
[18] Had the LAC been heedful of those comments it could hardly have
interfered in the manner it did or fashioned the order that
it did.
[19] The respondent compounded the issue in this
court not only by seeking confirmation of the order of the LAC, but
seeking to
place further evidence before us on affidavit. The effect
of the evidence sought to be adduced was to seek to justify the order
of the LAC on some alternative basis, namely by resort to evidence
that was not available to the LAC when it made the order that
it did.
Put differently the respondent was now seeking at this late stage to
rely on evidence extraneous the record to support
the conclusion of
the LAC. By this stage though the respondent had already had three
bites at the proverbial cherry. The above
quoted extract from
Billiton
more
than adequately answers the substance of what the appellant seeks to
do. In addition thereto, the respondent did not attempt
to comply
with any known rule of procedure for placing further evidence before
this court at this late stage of the proceedings,
but sought orally,
from the bar, to introduce the evidence under the guise of ‘the
inherent jurisdiction of this court’
and ‘on a basis of
equity’. Those propositions merely have to be stated to be
rejected. But even if one were to assume
that there were no
procedural hurdles in the way of the course suggested on behalf of
the respondent, notions of fairness, as our
courts have repeatedly
emphasised, envisage fairness to both not just one of the parties to
a dispute. It goes without saying that
adopting the course suggested
by the respondent will materially and substantially prejudice the
appellant.
[20] There is no conceivable reason why costs should not follow the
event.
1 The appeal is upheld with costs.
2 The order of the Labour Appeal Court is set aside and replaced with
the following:
‘
The appeal is dismissed with costs’.
___________________
S SNYDERS
Judge of Appeal
APPEARANCES:
For the First Appellant: M F Ackermann
Instructed by:
Len Dekker & Associates; Pretoria
Naudes Inc, Bloemfontein
For the First, Second and Third Respondents: N Cassim SC
(with him A Mosam)
Instructed by:
Lebea & Assosiates, Johannesburg
Phatsoane Henney Inc, Bloemfontein
1
For
a full summary of the nature of the test prescribed in
s 145
see
also
National Union of Mineworkers & another v Samancor Ltd
(Tubatse Ferrochrome) & others
(2011) 32 ILJ 1618 (SCA)
paras 5-7.
2
Paras
49-52.