Softex Mattress (Pty) Ltd v Paper Printing Wood & Allied Workers' Union and others (DA21/99) [2000] ZALAC 7 (1 September 2000)

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[2000] ZALAC 7
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Softex Mattress (Pty) Ltd v Paper Printing Wood & Allied Workers' Union and others (DA21/99) [2000] ZALAC 7; [2000] 12 BLLR 1402 (LAC); (2000) 21 ILJ 2390 (LAC) (1 September 2000)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
(HELD AT DURBAN)
CASE NO: DA 21/99
In the matter between:
SOFTEX MATTRESS (PTY) LTD Appellant
and
PAPER PRINTING WOOD & ALLIED 1
st
Respondent
WORKERS’ UNION
E. KHAMBULE 2
nd
Respondent
GJP BLIGNAUT 3
rd
Respondent
(in his capacity as Secretary of the
Bargaining
Council for the Furniture
Manufacturing
Industry of KwaZulu-Natal)
MR NQCOBO 4
th
Respondent
(In his capacity as Commissioner of
the
Commission for Conciliation, Mediation
and Arbitration)
JUDGMENT
NUGENT, AJA:
[1] The appellant applied to the
Labour Court to review and set aside two decisions, taken by the
third and fourth respondents respectively.
The application came
before Mlambo J, who dismissed it with costs, and the appellant now
appeals against that decision.
[2] The application arose from the
dismissal of the second respondent (whom I will refer to as the
employee) by the appellant on
28 January 1997, which was confirmed
after an internal appeal on 14 February 1997. A little more than a
month later, the employee’s
union declared a dispute with the
appellant, alleging that the dismissal was unfair. A meeting was
held on 10 April 1997 to consider
the issue in dispute, but it still
could not be resolved, whereupon the employee invoked the statutory
procedure provided for
in
s.191
of the
Labour Relations Act 1995
.
[3] That section entitles a dismissed
employee to refer a dispute about the fairness of his or her
dismissal to a bargaining council,
or the Commission for
Conciliation, Mediation and Arbitration (the CCMA) if no council has
jurisdiction, which must attempt to
resolve the dispute through
conciliation. The referral is required to be made within thirty
days of the date of the dismissal,
but if the employee “shows good
cause at any time”, the council, or the CCMA, as the case may be,
“may permit the employee
to refer the dispute after the 30-day
time limit has expired.”
[4] It is not disputed that the
dispute in the present case fell within the jurisdiction of the
Industrial Council for the Furniture
Manufacturing Industry, Natal,
which is deemed by
s.7
of Schedule 7 to be a bargaining council (and
is referred to hereafter as the Council). At the time that is
relevant to this appeal,
the Council had applied in terms of
s.127
to be accredited to perform the function of resolving disputes
through conciliation. The application had not yet been approved,
but
s.21(A)(1)
of Schedule 7 permitted the Council to perform that
function in the interim.
[5] The secretary of the Council was
Mr Blignaut, who is the third respondent. He and a certain Mr
Churton, an independent consultant
with expertise in that field,
had been appointed by the Council to perform the function of dispute
resolution. Mr Blignaut had
been authorised by the Council to deal
with matters ancillary to that function, and in particular to decide
on its behalf whether
the time limit within which a referral is
required to be made ought to be extended in any particular case.
[6] It was submitted in argument that
it fell outside the powers conferred on the Council by its
constitution to confer that authority
upon Mr Blignaut, but in my
view that is not correct. Although its constitution permits the
Council to appoint committees from
amongst its members to perform
certain functions that does not purport to be conclusive of the
manner in which it is authorised
to conduct its business.
Furthermore, although the Act authorises a council to extend the
relevant time period, it does not expressly,
nor by necessary
implication, prohibit a council from delegating that power
(
Attorney-General OFS v Cyril Anderson Investments (Pty) Ltd
1965 (4) SA 628
(A) at 639). On the contrary, the matters that are
required to be considered when determining whether to accredit a
council for
the purpose of performing the function of dispute
resolution (see in particular
ss.127(4)(c)
- (g) of the Act) make it
clear that the legislature fully intended a council to delegate that
function, and by implication, the
functions ancillary thereto, to
one or more persons acting on its behalf.
[7] In the present case the dispute
was referred to the Council on 15 April 1997, which was outside the
time limit provided for
in
s.191.
In due course Mr Blignaut decided
that good cause had been shown for the referral of the dispute, in
circumstances which I will
return to later in this judgment.
[8] Notwithstanding that an attempt
to resolve the dispute by conciliation was made, the dispute
remained unresolved, and on 8 May
1997 Mr Blignaut issued a
certificate to that effect, as contemplated by
s.191(5)
of the Act.
That section provides that if such a certificate is issued, then
“the council or the Commission must arbitrate the
dispute at the
request of the employee.”
[9] The employee duly requested the
CCMA to arbitrate the dispute, and the fourth respondent was
appointed for that purpose. The
arbitration was held on 17
September 1997, and on 10 October 1997 the arbitrator issued an
award, declaring that the dismissal
of the employee was unfair, and
ordering the appellant to reinstate him.
[10] On 23 October 1997, the
appellant’s attorneys wrote to Mr Blignaut, informing him that
they had been requested by the appellant
to advise “on the
prospects of them successfully reviewing the decision of the
Bargaining Council to condone the late referral
of the dispute”,
and requesting him to furnish the record of the proceedings, his
reasons for granting condonation, and all
documents relating to the
condonation application. Mr Blignaut replied that no record of the
proceedings was kept, but he furnished
copies of the relevant
correspondence.
[11] On 23 December 1997 the
appellant launched its application to the Labour Court, in which it
sought an order setting aside Mr
Blignaut’s decision that good
cause had been shown for the late referral of the dispute to the
Council; and for an order setting
aside the arbitrator’s award.
[12] In response to that application,
Mr Blignaut furnished his reasons for acting as he did, and the
arbitrator filed the notes
that he had made in the course of the
arbitration, but neither of them formally opposed the application.
[13] It is convenient to deal with
each of the decisions in turn.
THE DECISION OF MR BLIGNAUT
[14] The authority to conduct an
arbitration in terms of
s.191
of the Act is dependant upon certain
conditions having been fulfilled. The dispute must have been
referred to conciliation, and
either the conciliator must have
certified that the dispute remained unresolved, or a period of
thirty days must have expired from
the date that it was received by
the Commission for Conciliation, Mediation and arbitration (“the
CCMA”) or a council, as the
case may be.
[15] In turn a dismissal dispute may
only be referred to conciliation if it is “ about the fairness of
a dismissal”, and is
referred to the commission or a council, as
the case may be, within 30 days of the date of the dismissal unless
the commission
or council condones the delay.
[16] It follows that a conciliator
has no authority to conduct conciliation proceedings unless either
the referral has occurred
within the 30 days period or the CCMA or
the Council has permitted a later referral which it can do on good
cause shown. It follows
also that in the case of arbitration, the
arbitrator will not have jurisdiction if the 30 days has not lapsed
or if no certificate
of outcome has been issued.
[17] But while it is necessary for
the relevant conditions to have been fulfilled in order for the
dispute to be subject to conciliation,
and subject to arbitration
thereafter, it does not lie within the power of either of those
functionaries to determine authoritatively
whether those conditions
have been fulfilled. To the extent that a conciliator or an
arbitrator is called upon to enquire into
whether they have been
fulfilled (
Shoprite Checkers (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration & Others
(1998) 19
ILJ 892 (LC) esp at 896 F - 897 A) that is dictated by practical
prudence rather than by legal necessity, for in neither
case will
the functionary’s decision be decisive of the issue. Their
authority to carry out their functions is dependant upon
whether the
conditions have been fulfilled in fact, and not upon whether either
one of them has decided that they have been.
[18] The principles that apply arose
in a different context in
Benicon Earthworks & Mining
Services (Edms) (Bpk) v Jacobs NO & Others
(1994) 15 ILJ
801 (LAC). That case concerned the validity of proceedings in the
Industrial Court in terms of the Labour Relations
Act 28 of 1956,
where it was alleged that the conciliation board which had
considered the dispute (an essential precondition for
the Industrial
Court’s jurisdiction) had not been properly constituted. I said
the following in that case, at 804 A, which
in my view is equally
applicable to the position of a conciliator or arbitrator under the
new Act:
“
The
validity of the proceedings before the Industrial Court is not
dependent upon any finding which that court may make with regard
to
the jurisdictional facts, but rather upon their objective existence.
Accordingly any conclusion to which the court may come
on this
issue has no legal significance. As pointed out by Leon J in
Pinetown Town
Council
, supra, at
179 B-D :
“
"Where the
jurisdiction of a tribunal is dependent on the existence of a
particular state of affairs, it cannot give itself
jurisdiction by
incorrectly finding that the conditions for the exercise of
jurisdiction are satisfied... (A) determination on
the
jurisdictional facts is always reviewable by the courts because in
principle it is no part of the exercise of the jurisdiction
but
logically prior to it."
Equally
the tribunal cannot deprive itself of jurisdiction by an incorrect
finding that the jurisdictional facts do not exist.
In
practice, however, a court would be shortsighted if it made no such
enquiry before embarking upon its task. Just as it would
be
foolhardy to embark upon proceedings which are bound to be
fruitless, so too would it be fainthearted to abort the proceedings
because of a jurisdictional challenge which is clearly without
merit. Between these extremes will be cases in which the court
is
called upon to exercise its judgment as to whether to proceed (at
the risk to the parties that the proceedings may prove to
be
invalid), or to decline to do so until an authoritative ruling has
been obtained from a competent court. The court's position
in this
regard is no different to that of an arbitrator whose jurisdiction
is placed in issue (see Mustill & Boyd: Commercial
Arbitration
2nd ed pp 574-5).”
[19] No doubt it was to assist an
arbitrator to satisfy himself or herself that the necessary
preconditions have been fulfilled
that the legislature provided for
a certificate to that effect to be issued by the conciliator. While
it would be prudent for
an arbitrator to ensure that such a
certificate exists before proceedings with an arbitration, what is
decisive is not whether
the arbitrator has found that such a
certificate has been issued, but rather whether the certificate was
issued in fact. Where
such a certificate has been issued and on the
face of it, it appears to be regular, the commissioner appointed to
arbitrate the
dispute has jurisdiction to arbitrate the dispute as
long as the certificate has not been set aside.
[20] Thus where the validity of the
conciliation process is placed in issue, it is not open to the
conciliator, or a subsequent
arbitrator, to make any authoritative
ruling upon the issue, for neither of them can by their own decision
create authority that
does not exist in fact. It will often be
prudent for an arbitrator in that situation to stay the arbitration
until the issue has
been resolved by a competent court, but even
that is not obligatory, though the risk of proceeding is that the
arbitration may
turn out to have been futile.
[21] It falls within the powers of
the Labour Court in terms of s.158 of the Act to review and set
aside a decision by a conciliator
to condone the late referral of a
dispute if that decision was not lawfully made. The effect of
setting aside such a decision
would be that the consequences that
followed upon that decision (including the conciliation,) would
equally be invalid, and liable
to be set aside. However, where a
certificate of outcome has already been issued, it is essential that
that certificate be set
aside first before it can be said that the
arbitrator has no jurisdiction to arbitrate the dispute because, if
it is not set aside,
he has jurisdiction. In this it was alleged
that Mr Blignaut’s decision was invalid and that the arbitration
proceedings had,
consequently, been invalid too.
[22] Considerations of practicality,
certainty, and finality dictate that a challenge to the exercise of
statutory powers should
be brought before a court without undue
delay. It is well established that proceedings to review the
exercise of such powers
must be brought within a reasonable time,
failing which the remedy might be refused (
Wolgroeiers Afslaers
(Edms)(Bpk) v Munisipaliteit van Kaapstad
1978 (1) SA 13
(A)).
The effect of the remedy being refused is that the particular
decision will acquire validity in fact (albeit not in law),
for no
reason but that it will no longer be capable of being found to be
invalid (
Harnaker v Minister of the Interior
1965 (1) SA 372
(C) at 381 A-F;
Metal & Electrical Workers Union of SA v
National Panasonic Co (Parow Factory)
1991 (2) SA 527
(C) at 532
I; Baxter: Administrative Law 360).
[23] The rule that review proceedings
must be brought within a reasonable time has its source in the
inherent jurisdiction of the
courts at common law, but the same
approach has been adopted in relation to review proceedings governed
by statute (
Harnaker’s
case, supra, at 380E). It was not
disputed that it applies equally to reviews by the Labour Court in
terms of s.158 of the Act.
[24] What constitutes a “reasonable
time” will necessarily depend upon the nature of the particular
statutory power, and the
circumstances of the particular case,
including any explanation that might be put forward by the
applicant. There is thus little
to be gained by considering
comparative decisions made in a different context (
Setsokosane
Busdiens (Edms) Bpk v Voorsitter, Nasionale Vervoerkommissie &
Another
1986 (2) SA 57
(A) esp at 86G and 87A).
[25] In my view what must be
evaluated in determining what constitutes a “reasonable” time
is the nature of the particular
statutory power, and the
consequences of it being exercised, bearing in mind that the purpose
of the rule is to achieve administrative
certainty, which must be
evaluated within its particular context.
[26] The decision that is in issue in
the present case is required to be made as a prelude to a procedure
that is designed to enable
labour disputes to be resolved
expeditiously and could affect the validity of the entire process.
By its very nature, it is a material
decision, with immediate and
important consequences. It is essential, in may view, that any
challenge to its validity must be initiated
without any undue delay.
[27] I do not think it is possible to
lay down a specific period of time that will be reasonable in every
case, for what is reasonable
will also depend upon the particular
circumstances, and, in particular, upon any explanation for the
delay.
[28] In the present case the
application to review the decision was launched seven and a half
months after the decision was made.
In the meantime, the entire
process had run its full course. The appellant gave no explanation
in its affidavits for why that was
permitted to happen.
[29] The proper approach to be taken
by a court in matters of this nature was set out by Miller JA in
Wolgroeiers Afslaers
, supra, at 39 B-D, in the following
terms:
“
Word
beweer dat die aansoekdoener nie binne redelike tyd die saak by die
Hof aanhangig gemaak het nie moet die Hof beslis (
a
) of die
verrigtinge wel na verloop van ‘n redelike tydperk eers ingestel
is en (
b
) indien wel, of die onredelike vertraging oor die
hoof gesien behoort te word. Weereens, soos dit my voorkom, met
betrekking tot
(
b
), oefen die Hof ‘n regterlike diskresie
uit, met inagneming van al die relevante omstandighede. (Sien
Shepherd v Mossel Bay Liquor Licensing Board
,
1954 (3) S.A.
852
(K) op bl. 857.)”
[30]
In
Setsokosane Busdiens
, supra, at 86 D-E read with 87A, Hefer
JA said that the first stage of the enquiry requires a “value
judgment” to be made,
taking into account all the circumstances,
including any explanation that is given by the applicant; and it is
only at the second
stage of the enquiry (if it becomes necessary)
that a discretion is required to be exercised as to whether the
undue delay ought
to be overlooked. In the exercise of that
discretion, any prejudice, or lack of it, to either of the parties
might properly play
a role, but is not necessarily decisive
(
Wolgroeiers Afslaers
, supra, at 42 C).
[31] The court a quo dismissed the
application to review the decision on the ground alone that there
had been undue delay, and the
learned judge said the following:
“
The
fact that there is no time limit within which reviews in terms of
section 158(1)(g) may be brought does not mean that the application
can be brought even after an unreasonable period has elapsed. One
of the objects of the Act is the effective resolution of disputes.

An effective dispute resolution system is one that is expedient and
ensures the resolution of disputes without delay.
....
In
this case the applicant did not issue any objection or legal
challenge to Blignaut’s ruling when it was made. The applicant
participated in the subsequent arbitration and did not seek a stay
or postponement thereof pending any challenge to the conciliation
process. It was only after the award was issued that the applicant
sought to review the condonation ruling made during the
conciliation.
This cannot be acceptable. It goes against the
objects of effectiveness and expedience which underpin the Act.”
[32] It was submitted on behalf of
the appellant that the learned judge erred, in that in that he did
not apply the two-stage enquiry
referred to in
Wolgroeiers
Afsalers
, supra, but found only that the delay was unreasonable.
Although the learned judge did not expressly separate his reasoning
into
two components, it does not follow that he did not apply his
mind to both issues in reaching his decision. Nevertheless, even if
he did not, I can find no fault with the conclusion which he
reached.
[33] I have already said that in my
view a party who wishes to challenge a decision of this nature must
act promptly or risk losing
the remedy. What will constitute “undue
delay” must invariably depend upon the particular circumstances of
each case. In the
absence of special circumstances or any
explanation, in my view a period of seven and half months is quite
beyond the reach of
what could be considered to be reasonable.
[34] The appellant’s counsel
pointed out that the appellant had challenged the validity of Mr
Blignaut’s decision at the outset
of the arbitration, and
submitted that in so doing, it was exhausting the remedies available
to it, which was a reasonable precaution
to have taken before
resorting to a court. Support for adopting that approach was sought
int he decision of the Labour Court in
Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration & Others,
supra, at 896F - 897A. It was
submitted, as I understand it, that it
was held in that case that the arbitrator was the proper person to
determine the question
of jurisdiction. We were also referred to the
decision in Dempster v Kahn NO & Others (1998) 19 ILJ1475 (LC)
in support of
the submission that the appellant was entitled to
believe that it might adopt the course that it did, but I do not see
how the
appellant could have relied upon that decision, which had
not yet been made. The answer to this submission is that that is an
explanation
which the appellant should have put up in an affidavit
explaining reasons for the delay and seeking condonation, it is not
the
kind of explanation which should be proffered from the Bar.
[35] I have already said that the
arbitrator has no power to determine his or her own jurisdiction,
and I do not think that
Shoprite Checkers
purported to find
otherwise. In that case a dismissed employee referred a dispute to
the CCMA for conciliation, out of time.
The dispute was not
resolved, and it was referred to arbitration. The arbitrator made
an award in favour of the employee. The
employer applied to set
aside the award on various grounds, one of which was that the late
referral of the dispute to the CCMA
had never been condoned. At
paras 20 and 21 Pretorius AJ said the following:
“
A
CCMA commissioner who seeks to apply the provisions of s 191(2) read
with s 191(1) and 190(1) of the LRA is enjoined to make a
factual
enquiry as to whether the referral is indeed out of time ...
Further, s 191(2) enjoins an employee to show good cause before
a
commissioner may permit her to refer the dispute after the 30-day
time limit has expired ... None of the above appears to have
been
done in this case. This being so, the (conciliator) had no
jurisdiction to conciliate the matter. It follows that the
arbitrator
also had no jurisdiction to deal with the matter.”
[36] As I understand the judgment,
the “CCMA commissioner” that was referred to at the commencement
of that passage was the
commissioner performing the conciliation
function, and not the arbitrator. Provided it is borne in mind
that the commissioner
(in that capacity) is only “enjoined” to
embark upon that enquiry by practical considerations, and not as a
matter of law,
what was said by the learned judge seems to me to be
unexceptional. This is, of course, subject to what I have said above
about
a case where a certificate of outcome had been issued and it
had not been set aside and an arbitrator is required to arbitrate a
dispute to which such a certificate relates. I have already
indicated that a commissioner, or council, to whom a dispute has
been
referred for conciliation, would be most imprudent if he or she
proceeded without first taking steps to enquire into whether he
or
she had the requisite authority, but I do not think the learned
judge suggested that the remedy of a person who is aggrieved
at a
decision made by the conciliator lies in approaching the arbitrator.
[37] Apart from the fact that the
decision in that case does not seem to me to support the appellant’s
submission, the added difficulty
is that nowhere in the appellant’s
affidavits is it alleged that that was the reason for the delay.
Indeed, it gave no explanation
at all for the delay, notwithstanding
that the issue had pertinently been raised.
[38] Bearing in mind the period of
the delay, and the absence of any explanation, in my view the court
a quo cannot be faulted for
having found that the delay was
unreasonable. I can also see no grounds upon which the court ought
to have found, in the exercise
of its discretion, that the delay
should be overlooked.
[39] In those circumstances I see no
reason to interfere with its decision.
[40] The learned judge went on to
find that, in any event, the decision was properly made by Mr
Blignaut, and in my view that portion
of its finding can also not be
faulted. Although it is not strictly necessary to do so, in view of
the conclusion I have reached,
because the matter was fully argued I
will deal briefly with that issue.
.
[41] It is not disputed that the
Council authorised Mr Blignaut to make the relevant decision, and I
have already found that it
fell within the powers of the Council to
do so. The remaining submissions made on behalf of the appellant
related to the manner
in which Mr Blignaut arrived at his decision.
[42] When the dispute was referred to
the Council, and came to his attention, Mr Blignaut immediately
appreciated that the time
limit had expired, and he wrote to the
union (with and sent a copy to the appellant) drawing that fact to
its attention and requesting
it to show “good cause” if the
delay was to be condoned. On 23 April 1997 the Union replied,
advising that the delay had come
about because the dispute “was
still being handled internally in terms of the internal procedures
of the collective agreement
between the parties”, and it attached
correspondence to support that allegation.
[43] Upon receiving that explanation,
Mr Blignaut decided that the delay should be condoned, and he then
notified the parties that
a conciliation meeting would be held on 7
May 1997. Some time thereafter he telephoned the CCMA, apparently
to seek its views
regarding the decision he had taken, and was told
by one of the commissioners “on the facts I put to him that he
believed that
good cause had been shown and the CCMA would probably
have dealt with it in the same way.”
[44] On 5 May 1997 Mr Blignaut
received a letter from the appellant, informing him that it had
advised the Union that good cause
did not exist for the late
referral, and it considered the matter closed and would not attend
the meeting. Mr Blignaut seems thereupon
to have resolved that he
should reconsider his earlier decision, for he then wrote to the
appellant, informing it that it should
attend the meeting “where
the issue of ‘good cause’ will be considered by the Council.”
He also telephoned the representative
of the appellant and urged
him to attend so that his representations could be considered.
[45] The appellant’s representative
duly attended the meeting. It is not disputed that representations
were made by both parties
on the question whether good cause existed
to condone the delay. According to Mr Blignaut, the appellant “did
not deny the constant
point made by (the Union) that the parties
were acting in accordance with internal procedures.” Mr Churton
was also at the
meeting, and he expressed the view that good cause
for the delay had indeed been shown. After considering what had
been said,
Mr Blignaut “reaffirmed” his earlier decision, and
the meeting proceeded to deal with the merits of the dispute.
[46] It is not necessary for purposes
of this appeal to decide whether Mr Blignaut was obliged to solicit
and consider the views
of the appellant before making a decision
that the delay should be condoned, as submitted on behalf of the
appellant, and I have
assumed that he was obliged to do so. The
appellant’s principal submission was that, once having purported
to make a decision
(albeit that it was invalid) Mr Blignaut was
disabled thereafter from reconsidering the matter, with the result
that his second
decision was also invalid.
[47] Generally, an administrative
official may not revisit his or her decision, but that rule is by no
means absolute, for the rule
is dictated by considerations of
finality and administrative efficiency, which are at times best
served by permitting the decision
to be reconsidered (see Baxter:
Administrative Law 372 - 382). However, the rule does not come into
play merely upon the completion
of the mental process involved in
arriving at a decision, but comes into play only when the decision
has been pronounced. In
Lek v Estate Agents Board
1978 (3)
SA 160
(C) at 168 C-D Friedman J said the following:
“
The
common law in respect of judgments of the Court is clear, viz that
it is the pronouncement of the decision that is the decisive
moment.
Until a judgment is pronounced, the Judge may change his mind but,
once a judgment has been pronounced, the judge becomes
functus
officio
. (See
Estate Garlick v Commissioner for Inland
Revenue
1934 AD 499
at 502.) The same principle applies in the
case of decisions taken by a corporate body, ie the latter is not
bound by its resolution
until it has been communicated to the person
affected.”
[48] That case concerned the decision
of a corporate body, but in my view the principle applies equally
to the decision of an individual.
The underlying reason is
perfectly clear: Until such time as the decision has been
pronounced, there is no potential for it to
have been relied upon,
which is the rationale for the existence of the rule (Baxter, op
cit, 372).
[49] In the present case there is no
suggestion that any of the parties were aware that Mr Blignaut had
made a decision, let alone
that he had pronounced it. It was
submitted that his conduct in convening the meeting was a
manifestation of the decision he had
taken. That act was equivocal,
but in any event, not even the appellant could have understood it to
mean that a decision had been
taken, for its letter, and its
subsequent conduct, was inconsistent with such a belief. Indeed,
the further submission made on
behalf of the appellant, to which I
will come, is also in conflict with the suggestion that the
appellant was aware that the decision
had been made.
[50] For that reason alone, in my
view it has not been shown that Mr Blignaut was functus officio at
the time he made the relevant
decision, and it is not necessary to
consider whether he might in any event have been entitled to
reconsider it.
[51] It was also submitted that Mr
Blignaut was under a duty to disclose to the appellant at the
meeting on 7 May 1977 that he had
taken a decision at an earlier
stage, and that he had taken advice from a commissioner of the CCMA.
If neither of those factors
resulted in him not exercising an open
mind (which the evidence establishes that he did) then in my view
they were irrelevant to
the exercise of his discretion, and were not
required to be disclosed.
[52] As to the merits of his
decision, in my view there were ample grounds for Mr Blignaut to
have exercised his discretion in the
manner in which he did, and his
decision does not justify an inference that he did not properly do
so.
[53] Accordingly, I agree with the
finding of the court a quo that no grounds were shown for setting
aside the decision.
THE DECISION OF THE ARBITRATOR
[54] It follows from the earlier
findings that there were no grounds for finding that the arbitrator
had no jurisdiction to make
the award.
[55] It has been held by this court
that an award made by an arbitrator may also be set aside if it is
not “justifiable in relation
to the reasons given for it,” which
requires a court to determine “whether the outcome is rationally
justifiable” (
Carephone (Pty) Ltd v Marcus NO & Others
(1998) 19 ILJ 1425 (LAC) at para 36). Although doubt was expressed
in
Toyota South Africa Motors (Pty) Ltd v Radebe & Others
(2000) 3 BLLR 243
(LAC) at para 40 as to the correctness of that
decision, and in
Shoprite Checkers (Pty) Ltd v Ramdaw NO &
Others
(Case No D409/99) Wallis AJ expressed the view that it
was wrong, it is not necessary to revisit the issue in the present
case.
Neither counsel suggested that we should not apply that test,
and in any event, in my view the award does not fall to be set aside
even on an application of the test adopted in
Carephone
. I
might add that counsel’s submissions were confined to persuading
us that the award was not “justifiable in relation to
the reasons
given for it” by the arbitrator.
[56] Before turning to the
arbitrator’s award, it is helpful to set out briefly the
circumstances in which the dismissal occurred.
[57] According to the record of the
internal disciplinary hearing, the appellant alleged that during the
weekend of 7 December 1996
certain bed-sets were stolen from its
warehouse. A private investigator was employed, who subjected
certain of the security personnel
to polygraph tests. The tests
pointed to one of them, Mr Riggien, as having knowledge of the
theft. Upon further questioning
Mr Riggien eventually admitted that
he was a party to the theft, and he deposed to an affidavit to that
effect. In that affidavit
he also implicated the employee, and
alleged that the employee had intimidated Mr Riggien into acting as
he did. After deposing
to that affidavit, Mr Riggien resigned,
and did not give evidence, either at the disciplinary enquiry, or at
the arbitration.
[58] Disciplinary proceedings were
instituted against the employee, it being alleged that he had “(been
involved) in the unauthorised
removal of company property from the
company premises on or about the 7
th
December 1996".
At the disciplinary enquiry, the only evidence implicating the
employee was the affidavit that had been deposed
to by Mr Riggien,
and an allegation by the person who convened the enquiry that the
appellant’s records reflected a telephone
call made by the
employee to Mr Riggien on 7 December 1996. The employee denied any
involvement in the theft, and protested his
innocence.
[59] The evidence presented to the
arbitrator was not materially different, except that the employee
gave evidence under oath, in
which he denied any involvement, and
was exposed to cross examination, from which nothing material
emerged.
[60] It is not necessary to traverse
the award in detail. The arbitrator found that the affidavit of Mr
Riggien was an insufficient
basis upon which to have found that the
employee was a party to the theft, for three reasons, which were
expressed by the arbitrator
as follows:
“
Firstly, Riggien was an accomplice
and the evidence of an accomplice should be treated with caution.
Secondly, Riggien never testified in
person and Khambule never had the opportunity to challenge Riggien’s
evidence.
Thirdly, I find it most improbable
that a senior security person would be so easily threatened into
jeopardising his job security
and betray his employer’s trust.”
[61] In finding that the award did
not fall to be set aside, the learned judge said the following:
“
A
critical element of fair administrative action is that the person
performing the task applied his mind to the matter before him
and
took account of relevant considerations and evidence placed before
him. Whilst it might be possible that based on the same
facts
someone else would come to a different conclusion, that however is
not the test. In my view (the arbitrator) was perfectly
entitled to
weigh up Riggien’s confession and reject it with reasons. His
decision and the reasons he gave for it do not support
the view that
he committed a reviewable irregularity. The review application of
(the arbitrator’s) award must also fail.
[62] It was submitted in this court
that the arbitrator had not been called upon to determine whether
the appellant had proved that
the employee was guilty of theft, but
only whether the appellant had a fair reason for dismissing him. It
was submitted too that
the reasons furnished by the arbitrator could
not justify his conclusion that there were no grounds for dismissal.
Whichever approach
one takes to the matter, the question remains
whether it was fair for the appellant to conclude that the employee
was a party to
the theft, for it was on those grounds that it
decided to dismiss him.
[63] I do not think the arbitrator
can be said to have misunderstood the nature of the enquiry. As to
the conclusion that he reached,
the question to be asked is not
whether his conclusion was correct, but rather whether it was
capable of being arrived at rationally
for the reasons that he gave,
or, to put it another way, whether there was “a rational objective
basis justifying the connection
made by the (arbitrator) between the
material properly available to him and the conclusion he ...
eventually arrived at.” (
Carephone
, supra, at para 37).
[64] Essentially, the arbitrator
found that the evidence upon which the appellant acted had the
inherent potential to be false for
two reasons, and in addition was
improbable, and thus ought not fairly to have been relied upon in
order to found a decision to
dismiss, bearing in mind the employee’s
denial. The learned judge found that those reasons provided a
rationally justifiable
basis upon which to reach that conclusion,
and I do not think that his finding can be faulted.
[65] In my view there are no proper
grounds to interfere with the decision of the court a quo in respect
of either of the decisions.
Both counsel submitted that the costs
should follow the result.
Accordingly, the appeal is dismissed
with costs.
R.W. NUGENT
ACTING JUDGE OF APPEAL
R.M.M. ZONDO
JUDGE PRESIDENT
C.R. NICHOLSON
JUDGE OF APPEAL
For the appellant: Adv. A.I.S.
Redding
Instructed by
Deneys Reitz, Durban
For the Respondent: Adv. R.G.
LaGrange
Instructed by
Cheadle Thompson & Haysom,
Johannesburg
Date of Hearing: 30 May 2000
Date of Judgment: