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[2016] ZALAC 45
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Lawrence v Mutual and federal (Pty) Ltd and Another (JA77/2014) [2016] ZALAC 45 (15 September 2016)
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA 77/2014
K M LAWRENCE
Appellant
and
MUTUAL & FEDERAL
(PTY)
LTD
First Respondent
LARRY SHEAR N.O.
Second Respondent
Heard:
22 September 2015
Delivered:
15 September 2016
Summary:
Review of private arbitration
award – employee contending that
arbitrator failing to apply his mind to material facts and to apply
section 193 of the LRA
– employee also contending that Labour
Court erring in not granting costs. Arbitrator guided in his function
by the terms
of reference. Arbitrator applying his mind to all
material facts – section 193 not applicable in private
arbitration and
arbitrator correctly granted relief in light of the
terms of reference. In respect of costs, court finding that the
Labour Court
correctly exercised its discretion and that such
discretion could not be interfered with in the absence of any
misdirection on
the part of the Labour Court. Labour Court’s
judgment upheld – appeal dismissed.
Coram:
Tlaletsi DJP, Coppin JA
et
Makgoka AJA
JUDGMENT
THE
COURT
[1]
This
is an appeal against parts of the judgment of the Labour Court
(Prinsloo AJ) handed down on 9 May 2014, in terms of which the
Labour
Court declined to review and set aside in its entirety, a private
arbitration award under the provisions of the Arbitration
Act.
[1]
The
Labour Court only set aside a portion of the award and substituted it
with its own determination. The Labour Court also declined
to grant
costs to the appellant. The appeal is with leave of the Labour Court.
The facts
[2]
The first respondent is a short
term-insurer, insuring among others, against motor vehicle accidents.
The appellant was employed
by the first respondent in June 2008 in
the position of General Manager: Claims Technical, based at the first
respondent’s
head office in Johannesburg. The first respondent
had a motor liability claims department (MLCD) which was housed in
some 25 branches
nationally. One of the primary responsibilities of
MLCD was to recover monies from third parties, which monies had been
paid out
to the first respondent’s policy holders, where third
party drivers are deemed to be at fault and responsible for motor
vehicle
accidents which gave rise to the claim. These claims had to
be enforced within a period of three years from the date of the
occurrence
of the incident giving rise to the claim. If not so
pursued, the claims would prescribe.
[3]
In November 2008, the first respondent
embarked on a restructuring project called “Claret” which
entailed, among others,
a re-evaluation of staff structures and
costing within the company. The 25 MLCD branches were reduced to five
hubs, which were
all centralised in Johannesburg. This resulted in a
reduction of 30% of MLCD staff. Staff in other branches which closed
had to
relocate to Johannesburg. There was resistance to this move,
which resulted in serious staff shortage in Johannesburg, while the
workload increased significantly. For example, the Johannesburg took
over a backlog of approximately 26 000 recovery files
from
branches that had been closed. In addition, about 50 000 new
recovery files were referred to the Johannesburg MLCD hub
annually.
From 1 December 2009, the MLCD came to fall under the
overall authority of the appellant.
The prescription of claims and the
appellant’s dismissal
[4]
During 2009, Mutual & Federal conducted
an investigation and determined that claims against third parties to
the value of R7,
6 million had prescribed. It is common cause that
this occurred whilst the MLCD was under the management of the
appellant. As a
result, on 4 August 2010, the appellant was suspended
pending a disciplinary enquiry on various counts of alleged
mismanagement.
The disciplinary hearing was instituted against the
appellant for gross negligence. The applicant was eventually found
guilty on
a charge of gross negligence and was dismissed in July
2011.
The arbitration agreement
[5]
Aggrieved with the substantive unfairness
of his dismissal, the appellant initially referred the matter to the
Commission for Conciliation,
Mediation and Arbitration (CCMA).
However, this was later withdrawn and the parties agreed to refer the
matter for private arbitration
in terms of an arbitration agreement
dated 5 October 2011. The private arbitrator was given the same
powers and functions as a
commissioner of the CCMA as contemplated in
s 135
of the
Labour Relations Act 66 of 1995
. The arbitrator was
required to determine the following issues:
(a)
whether the applicant (the appellant) is
guilty of gross negligence in that he failed to exercise due care
and/or grossly failed
to implement control and adequate monitoring
mechanisms regarding prescribed claims, thereby exposing the first
respondent to a
financial loss of R5 million – R10 million and
thereby causing an unwarranted premium reduction (“clause
3.1”);
(b)
If so, whether the dismissal of the
appellant was substantively fair (“clause 3.2”);
(c)
if not, the appropriate legal relief to be
awarded to the appellant (“clause 3.3”); and
(d)
whether the first respondent will be
entitled to deferred payment of the appellant’
s 2009
bonus,
plus interest thereon, from 16 February 2011 to date of payment, less
income tax to be deducted.
The arbitration
proceedings
[6]
The arbitration proceedings commenced on 11
October 2011. Seven witnesses, including the appellant, testified in
the proceedings.
It is not necessary to set out the evidence of each
witness. It was established during the evidence that about 750 files
had prescribed.
The question that became key and relevant during the
arbitration was whether there were effective measures and controls in
place
to prevent prescription. The first respondent contended, on the
one hand, that the appellant had failed to put in place any or
adequate control measures to prevent the prescription of claims.
Summary of key areas of the
evidence
[7]
One of the witnesses to testify on behalf
of the first respondent was Mr Mohamed Isaacs, to whom the appellant
reported. Mr Isaacs
testified that after it came to his attention in
July 2010 that some claims had prescribed, he communicated with the
appellant
to determine measures to prevent further claims from
prescribing. He further testified that after the interaction with the
appellant,
the latter would immediately initiate an action plan to
stem the flow of further prescription. However, this was not done.
[8]
On the other hand, the appellant contended
that there were various and sufficient control measures in place, and
that nothing more
could have been done to prevent prescription.
According to the appellant, MLCD was under extreme pressure and
barely able to cope
with the demands of current and new work, let
alone the work inherited from the various regions after operation
Claret. The appellant
testified that MLCD inherited a poor situation
from the “old regime” and would take at least 18 months
to turn the
situation around. He said that he and his team leaders
focussed their attention mainly on new and target files, which had a
better
chance of recovery. According to him, there was no point in
closing files in which claims were about to prescribe, as some work
would have been done on them, and some recovery of money was possible
on those files. As a measure, for example, MLCD introduced
an
incentive scheme for staff on recovery. During the first six months,
MLCD had requested a staff member to draft an action plan,
which was
presented to Mr Isaacs, and the latter was satisfied with it.
[9]
Ms Rene Van Coller, a previous employee of
the first respondent in MLCD, testified on behalf of the appellant.
She testified that
there were measures and controls in place in MLCD
to prevent prescription. These included age analysis, dairy systems
and target
files. Greater emphasis on target files as they had a
greater chance of recovery. According to Ms Coller, the recovery rate
was
10%. Ms Van Coller further stated that there were limited
resources available at MLCD and it took some prioritising to allocate
resources in the most efficient manner.
The arbitration award
[10]
The
arbitrator handed down a varied
[2]
arbitration award on 16 November 2011. The arbitrator found that the
appellant was not guilty of gross negligence, but only of
negligence,
for failing to take adequate and additional measures, as a general
manager in MLCD, to ensure that claims did not prescribe.
With regard
to the sanction, the arbitrator did not make any specific finding as
to whether the dismissal was substantively fair,
as required in the
private arbitration agreement. Instead, the arbitrator stated that he
“not entirely satisfied that dismissal
was the only and
necessarily appropriate sanction.”
[3]
Instead, the arbitrator ordered the first respondent to pay the
appellant the equivalent of six months’ salary as compensation,
calculated to be R550 000. The first respondent was also ordered
to pay the appellant 50% of his performance bonus for the
financial
year 2009, being R76 722.50 plus interest at the prescribed rate
from 1 October 2010 until 1 October 2011. The arbitrator
made no
order as to the costs.
[11]
In making the award referred to above, the
arbitrator took the following factors into account. He accepted that
the situation became
extremely difficult within MLCD in the
Johannesburg office after operation Claret. He also accepted that
certain measures were
in place, but were inadequate. In particular,
he found that the appellant failed to develop a clear plan to cope
with and deal
with the increased workload, especially in respect of
older files, which “were breathing their last breath” and
appeared
to have slipped through the control measures in place. The
arbitrator found that the appellant had fell short of his
responsibilities
and obligations as a general manager, in ensuring
that sufficient measures and procedures were in place, especially
after he was
alerted to the looming danger of prescription and the
consequences were the claims to prescribe.
[12]
On the above considerations, the
arbitrator concluded as follows on whether the appellant was guilty
of gross negligence:
‘
The
crisp question is whether the applicant was guilty of gross
negligence. It is my view that (the) applicant was not guilty of
gross negligence, but, I do believe that he was negligent in not
ensuring that whatever measures were in place were sufficient
and
properly monitored by himself and his staff. Applicant was the
general manager of claims, under which MLCD resided. He must
take
ultimate responsibility for any shortcomings within the department. I
do not believe that he is guilty of gross negligence
because the
evidence established that:
(i)
measures
were in place;
(ii)
the
department was understaffed;
(iii)
it
appears that the impact of Operation Claret was not properly thought
through by senior management;
(iv)
that
after Claret the department was severely understaffed.
However, despite these factors, (the)
applicant as the general manager, should have, and as a matter of
urgency, applied himself
to create the necessary safeguards to avoid
what did occur. In this regard, I believe he failed. A plan should
have been put in
place, but wasn’t.’
In the Labour Court
[13]
The appellant was dissatisfied with the
arbitration award, in particular, that the arbitrator did not order
that he be reinstated
to his position and that the arbitrator had
awarded him only 50% of his bonus. The appellant approached the
Labour Court seeking
to review and set aside the arbitrator’s
award and its variation on the grounds that the arbitrator had
committed several
gross irregularities in the arbitration
proceedings. The grounds of review were that the arbitrator had:
(a)
failed to determine directly one of the
issues he was required to determine in the terms of reference
contained in the private arbitration
agreement, namely, whether the
appellant’s dismissal was substantively fair;
(b)
failed
to critically analyse or make any findings on credibility or make a
determination on the probabilities on any of the evidence
adduced;
(c)
disregarded material evidence and argument
pointing to the appellant’s innocence of any negligence. Put
differently, it was
contended that there was no proper basis on which
to find the appellant guilty of any negligence. Alternatively, it was
argued
that the arbitrator had acted
ultra
vires
the powers given to him in the
private arbitration award in that he was not required to determine
whether the appellant was guilty
of negligence, but solely of gross
negligence;
(d)
failed to consider the prescripts of
s193(2)
of the LRA regarding reinstatement or re-employment as an
obligatory remedy;
(e)
failed to provide any cogent reasons for
awarding payment of only 50% of the appellant’
s 2009
performance bonus, or for the date determining interest on the
capital amount to be paid.
[14]
The
Labour Court heard the matter on 21 November 2013 and handed down its
judgment on 9 May 2014. After setting out the test applicable
on
review, the Labour Court considered the fact that the arbitration
award in the present case was pursuant to a private arbitration
agreement between the parties, and could only be reviewed in terms of
s 33 of the Arbitration Act, on the basis of the
dictum
in
Lufuno
Mphaphuli and Associates (Pty) Ltd v Andrews and Another.
[4]
[15]
The Labour Court then proceeded to consider
each of the appellant’s grounds of review and found the first
three of such grounds
to be unmeritorious and dismissed them. It
however, upheld the last ground, finding that the arbitrator’s
failure to provide
reasons for awarding only 50% of the appellant’s
bonus is reviewable. With regard to costs, the Labour Court stated
that
it took into account that “the applicant is an individual
who feels prejudiced and wanted this Court to consider his matter”
and that “in law and in fairness”, a costs order was not
appropriate.
[16]
In the result, the Labour Court made an
order dismissing the application for review on the first three
grounds relating to: failure
to determine the substantive fairness of
the appellant’s dismissal; acting
ultra
vires
the powers given in the private
arbitration agreement; and failure to consider the prescripts of
s193(2) of the LRA. Although not
expressly stated, the Labour Court
reviewed and set aside the portion of the arbitrator’s award
dealing with the appellant’s
entitlement to the performance
bonus, and substituted the following for it:
‘
The
applicant is entitled to his full performance bonus for the 2009
financial year being R165 567 plus interest at the prescribed
rate from date of accrual to date of payment, less income tax
deductions.’
[17]
The appellant, aggrieved with the dismissal
of his review application as far as the first three grounds of review
are concerned,
and the non-awarding of costs in his favour, applied
for leave to appeal on 30 May 2014. The appellant contended that the
Labour
Court erred in dismissing those three grounds of review, and
in not making a costs order in his favour. On 11 July 2014, the
Labour
Court granted leave to the appellant to appeal to this Court
on those grounds.
In this Court
[18]
In this Court, the appellant pursued only
the second and third grounds of appeal as initially argued in the
Labour Court, and the
costs order. In other words, the appellant
abandoned the first ground of appeal in which it was argued that the
arbitrator had
failed to make a finding as to whether the appellant’s
dismissal was substantively fair, as provided for in the private
arbitration
agreement. For completeness sake, the appellant’s
argument in this Court is premised on three grounds of appeal. They
are:
(a)
The Labour Court erred in dismissing the
appellant’s contention that the arbitrator had committed a
gross irregularity by
disregarding material evidence alternatively
failed to apply his mind to the evidence and argument presented in
the arbitration
proceedings;
(b)
The Labour Court erred in dismissing the
appellant’s argument that the arbitrator failed to consider and
follow the prescripts
of s193(2) of the LRA by not ordering the
reinstatement of the appellant.
(c)
The Labour Court erred in not making a
costs order in favour of the appellant despite his partial success in
the review application.
[19]
Before
we consider these arguments, it is prudent to restate the test for
reviewing a private arbitration award. Such an award can
only be
reviewed on the narrow grounds set out in s33 of the Arbitration Act,
and not in terms of the grounds set out in s 145
of the LRA.
[5]
Section 33 of the Arbitration Act provides:
‘
(1)
Where
(a)
Any
member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator or umpire; or
(b)
An
arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded its powers;
(c)
An
award has been improperly obtained,
the court may, on the application of
any party to the reference after due notice to the other party or
parties, make an order setting
the award aside.’
[20]
We turn now to consider in turn, the
appellant’s three grounds of appeal.
The arbitrator failed to consider
evidence
[21]
There
is no merit in this ground of appeal, and it is mentioned to be
dismissed. The arbitrator did consider all the evidence. That
explains how he came to the conclusion that the appellant was not
guilty of gross negligence, but only negligence. We have, in
paras
10-12 above, referred in some detail, to the reasoning of the
arbitrator in arriving at that conclusion. In short, the arbitrator
concluded that the appellant had failed to ensure that there were
proper control measures in MLCD. We agree with Mr
Van
As
,
counsel for the first respondent, that such a finding by a private
arbitrator, even if wrong, does not constitute a reviewable
irregularity. As explained by Harms JA in
Telcordia
,
the general principle is that “when parties select an
arbitrator as the judge of fact and law, the award is final and
conclusive,
irrespective of how erroneous, factually or legally, the
decision was.”
[6]
[22]
It was also contended that the arbitrator
failed to make credibility findings in respect of the witnesses who
testified during the
arbitration proceedings. The Labour Court was,
therefore, correct in its conclusion that the arbitrator’s
decision was not
reviewable on this ground.
Reinstatement
[23]
The terms of reference of the private
arbitration agreement gave the arbitrator the same duties and powers
of a CCMA commissioner
as contemplated in section 135 of the LRA.
Using that as a basis, the appellant argued that section 193 of the
LRA was applicable
and that the arbitrator failed to take into
consideration the prescripts of that section. The section concerns
remedies for unfair
dismissal and unfair labour practices, and it
provides as follows:
‘
(1) If the
Labour Court or an arbitrator finds that a dismissal is unfair the
court
or arbitrator may:
(a)
order
the employer to reinstate the employee from any date not earlier than
the date of dismissal;
(b)
order
the employer to re-employ the employee, either in the work in which
the employee was employed before the dismissal or in other
reasonably
suitable work on any terms and from any date not earlier than the
date of dismissal; or
(c)
order
the employer to pay compensation to the employee.
(2)
The
Labour Court or the arbitrator must require the employer to reinstate
or re-employ the employee unless:-
(a)
the
employee does not wish to be reinstated or re-employed;
(b)
the
circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c)
it
is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the
dismissal is unfair only because the employer did not follow a fair
procedure.’
[24]
The Labour Court approached this issue as
follows:
‘
The
applicant’s case is that once the arbitrator found that the
dismissal was substantively unfair, he had no option but to
reinstate
the applicant.
I
cannot agree with this submission.
It is evident that the arbitrator considered the appropriate remedy
and in doing so found that reinstatement is not the appropriate
remedy and he awarded compensation. The reasons for not reinstating
the applicant and for determining the amount of compensation
had been
fully set out in the arbitration award.
I
cannot find that the arbitrator failed to take into account of or
consider the prescripts of section 193 of the Act.
He considered the facts and his finding that the applicant was indeed
negligent and came to a finding that reinstatement would
not be
appropriate but compensation should be awarded. The arbitrator
provided reasons why he did not reinstate the applicant and
awarding
compensation, he carried out his mandate to determine the appropriate
legal relief.’
(Our
underlining for emphasis)
[25] This was a private
arbitration and section 193 of the LRA would have only been
applicable if the parties specifically made
the section applicable to
their arbitration, otherwise it does not apply automatically.
[26]
The arbitrator was only given the same powers and functions as a CCMA
commissioner as contemplated in section 135 of the LRA.
[7]
Section 135 only relates to powers and functions required to resolve
disputes through conciliation, and has nothing to do with
the
arbitration or the application of section 193 of the LRA.
[27] The arbitrator was
not given all the powers and functions of a CCMA commissioner. In any
event, even if he was given such powers,
it does not imply that
section 193 was applicable to the arbitration.
[28] The point raised by
the appellant regarding the applicability of section 193 was a bad
point and ought to have been dismissed
on the simple basis that the
section did not apply.
[29] It is clear from a
reading of the other terms of reference, in particular, clauses 3.1,
3.2 and 3.3, and the arbitrator’s
award, that he understood
exactly what his powers and functions were and that he complied fully
with the terms of reference.
[30] The arbitrator was
at liberty to determine the appropriate relief to be awarded to the
appellant if he found that the appellant’s
dismissal was not
substantively fair. In terms of clause 3.1 of the terms of reference,
he was to determine if the appellant was
guilty of gross negligence
in light of what was stated in that clause. In clause 3.2, it is
stipulated that if he finds that the
appellant was grossly negligent,
he (i.e. the arbitrator) had to determine whether the dismissal of
the appellant was substantively
unfair, i.e., the determination of
substantive fairness only had to be made if the arbitrator found that
the appellant was grossly
negligent for the reasons stipulated in
clause 3.1.
[31] In terms of clause
3.3, if the arbitrator did not find that the appellant was grossly
negligent he had to determine “the
appropriate relief to be
awarded to the [appellant]”.
[32] The terms of
reference clearly assume that the appellant was at least negligent.
The arbitrator found that the appellant was
not grossly negligent,
but negligent and in accordance with clause 3.2, he did not have to
specifically determine whether the appellant’s
dismissal was
substantively unfair, but, in accordance with clause 3.3, had to
determine the appropriate relief to be granted to
the appellant. The
arbitrator was of the view that the appropriate relief was
compensation and not reinstatement. He cannot be
faulted in that
regard. He fairly and reasonably complied with the terms of
reference.
Costs
[33] There remains the
issue of costs, to which we now turn. As stated earlier, the Labour
Court made no order as to costs in the
review application. Its
reasoning was as follows:
‘
With
regard to costs, I take into account the fact that the applicant is
an individual who feels prejudiced and wanted this Court
to consider
his matter. I do not in law and in fairness consider a costs order to
be appropriate.’
[34] The appellant argues
that the Labour Court erred in not granting costs in his favour. The
argument is premised on the fact
that the Labour Court had upheld one
of the three grounds of appeal, in terms of which the Labour Court
reviewed and set aside
the arbitrator’s award of 50% of the
appellant’s performance bonus, and ordered that the appellant
be paid his full
performance bonus for the year 2009. The appellant
contends that the Labour Court was supposed to grant costs in his
favour, as
he was at least partially successful in the review
application and being awarded financial relief as a result.
[35]
The
general approach to be adopted by a court of appeal when considering
an appeal against costs is trite. The award of costs and
the scale
thereof is a matter within the discretion of the court making the
order.
[8]
The appeal
court will not easily interfere with the exercise of that discretion.
It can only interfere where the discretion was
exercised on a wrong
principle or was capriciously made.
[36]
Put
differently, a court of appeal’s power to interfere is limited
to those cases where the exercise of the judicial discretion
is
vitiated by misdirection, irregularity, or the absence of grounds on
which the court below, acting reasonably, could have made
the order
in question.
[9]
In applying this principle to the present case, it should always be
borne in mind that the court not only granted costs against
a losing
party, but also that such costs were ordered on a punitive scale of
attorney and own client.
[37]
We
shall, for completeness sake, refer to the general principles
applicable in the Labour Court as regards costs. This is governed
by
s162 of the LRA, which provides that in making orders for payment of
costs, the Court has to have regard to the requirements
of law and
fairness. In deciding whether to order payment of costs, the court
may take into account, among others, the conduct
of the parties in
proceeding with the matter before the court and during the
proceedings. In
Moloi
v Euijen and Another,
[10]
it was observed that the framework of s162 supports the proposition
that when making orders of costs the requirements of law and
fairness
are paramount.
[11]
The requirements of law and fairness are on equal footing, and none
is secondary to the other. See in this regard
Callguard
Security Services (Pty) Ltd v Transport and General Workers Union and
Others
[12]
and
Xaba
v Portnet
.
[13]
[38]
The
rule of practice that costs follow the result does not govern the
making of costs orders in the Labour Court, and such orders
are made
in accordance with the requirements of law and fairness. See in this
regard
Member
of the Executive Council for Finance: Kwazulu-Natal and Another v
Dorkin NO and Another
[14]
where Zondo JP explained the rationale for that approach:
‘
[T]he norm
ought to be that costs orders are not made unless those requirements
[of law and fairness] are met. In making decisions
on cost[s] orders
this Court should seek to strive to strike a fair balance between, on
the one hand, not unduly discouraging workers,
employers, unions and
employers’ organisations from approaching the Labour Court and
this Court to have their disputes dealt
with, on the other, allowing
those parties to bring to the Labour Court and this Court frivolous
cases that should not be brought
to Court. This is a balance that is
not always easy to strike but, if the Court is to err, it should err
on the side of not discouraging
parties to approach these Courts with
their disputes…’
[15]
[39]
In the present case, it is clear from the
reasoning of the Labour Court, as set out in para 31 above, that its
disposition was to
grant costs against the appellant because he was
partially, and not substantially, successful. He had proffered four
grounds of
appeal. Only one was upheld. Accordingly, the Labour Court
decided against awarding costs against the appellant, on
considerations
of fairness and law. We do not see how it can be said
in those circumstances that the Court did not exercise its discretion
properly.
In our view, it did. There was neither capriciousness nor
misdirection in the manner the Court exercised its discretion. There
is therefore no merit in the appellant’s argument in this
regard.
Order
[41]
In the result the following order is made:
1.
The appeal is dismissed;
2.
There is no costs order in respect of the
appeal.
______________________
THE
COURT
Tlaletsi
DJP, Coppin JA and Makgoka AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv. J. Campanella
Instructed by Dewey
Herzberg Levy Inc
Sandton, Johannesburg
FOR THE FIRST
RESPONDENT: Adv. M.J.
Van As
Instructed by Moni
Attorneys, Killarney, Johannesburg
[1]
Act 42 of
1965.
[2]
The initial
award dated 29 October 2011 was found to be defective in the
calculation of the quantum of compensation awarded to
the appellant,
and with regard to the appellant’s entitlement to a
performance bonus. These errors did not in any way alter
the
essential reasoning in the initial arbitration award.
[3]
At para 106
of the arbitration award.
[4]
2009 (4) SA
529 (CC); 2009 (6) BCLR 527 (CC).
[5]
See
Stocks
Civil Engineering (Pty) Ltd v Rip N.O. and Another
[2002] 3 BLLR 189
(LAC) at para 52 and
Telcordia
Technologies Inc v Telkom
SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA) (
Telcordia)
.
[6]
At para 55.
[7]
Clause 2 of
the terms of reference states: “the arbitrator is given the
same powers and functions as a commissioner of the
CCMA as
contemplated in section 135 of the LRA 66 of 1995”.
[8]
Protea
Assurance Co Ltd v Matinise
1978 (1) SA
963
(A) at 976H;
Minister
of Prisons and another v Jongilanga
1985 (3) SA
117
(A) at 124B.
[9]
See
Attorney-General,
Eastern Cape v Blom
and
Others
1988
(4) SA 645
(A) at 670
D
– E.
[10]
(1999) 20
IJL (LAC).
[11]
At para 20.
[12]
(1997) 18
ILJ 380 (LC).
[13]
(2000) 21
IJL 1739 (LAC).
[14]
[2008]
6 BLLR 540 (LAC).
[15]
At para 17.