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[2017] ZALAC 5
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Moodley v Department of National Treasury and Others (JA13/2016) [2017] ZALAC 5; [2017] 4 BLLR 337 (LAC); (2017) 38 ILJ 1098 (LAC) (10 January 2017)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA13/2016
In the matter between:
K
MOODLEY
Appellant
and
THE
DEPARTMENT OF NATIONAL TREASURY
First
Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
P
G Z PEKALSKI
NO
Third
Respondent
M
S BALOYI
NO
Fourth
Respondent
Heard:
17 November 2016
Delivered:
10 January 2017
Summary: Substitution of a lesser
sanction with dismissal by an employer – chairperson of
disciplinary imposing demotion and
employer changing sanction to one
of dismissal – arbitrator ordering employer to revert to
chairperson’s sanction.
Appeal – arbitrator failing to
consider section 193 of the LRA – ie whether is practicable to
reinstate employee or
considering the nature of the misconduct for
which employee charged. Such failure vitiates the award.
Constitutional Court’s
judgment in Kruger restated. Appeal
dismissed Labour Court’s judgment upheld albeit for different
reasons.
Coram:
Ndlovu JA, Coppin JA and Savage AJA
JUDGMENT
COPPIN JA
[1] This is an appeal against the
whole judgment of the Labour Court (Tlhotlhalemaje AJ, as he then
was) in terms of which it reviewed
and set aside an arbitration award
made, in favour of the appellant (“
Ms Moodley
”),
by the third respondent (also referred to as “
the
arbitrator
” where the context allows) on 2 July 2012,
acting under the auspices of the second respondent (“
the
GPSSBC
”), and remitting the matter back to the GPSSBC for a
hearing
de novo
before someone other than the third
respondent. The court
a quo,
which made no order as to costs,
granted leave to appeal to this Court.
Background
[2] In about August 2007, the first
respondent (“
the Department
”) employed Ms Moodley
as Director: Facilities Management and her duties also included the
procurement of goods and/or services.
[3] On 19 April 2011, the Department
charged Ms Moodley with 11 counts of misconduct relating mainly to
non-compliance with procurement
procedures and the failure to
disclose her interests relating to certain transactions and the
receipt of a gift.
[4] The disciplinary hearing was
chaired by the fourth respondent (also referred to as “
the
Chairperson
” where the context allows), an independent
advocate, who was engaged by the Department. Ms Moodley was legally
represented
throughout the process.
[5] The Chairperson found Ms Moodley
guilty of nine of the 11 charges. The Chairperson imposed a sanction
in respect of each charge
– and then imposed an overall
sanction in respect of all the charges, which was “
dismissal
with an alternative of demotion
”. At some stage, the
Department asked the Chairperson for clarification of the sanction.
The Chairperson’s response,
in essence, was that “
the
sanction of dismissal was imposed with a demotion as an alternative
sanction
” and that paragraph 7.5.18 of the Employer’s
Employee Relations Guidelines applied. The Chairperson went further
to
explain the sanction as follows:
‘
Paragraph
7.5.18 of the Employer’s Employee Relations Guidelines empowers
the Chairperson of a disciplinary hearing involving
a member of the
SMS to impose a sanction of dismissal with the alternative of, inter
alia, demotion. Accordingly, the primary
sanction imposed is
dismissal and the alternative of demotion applies only should the
employee agree to be demoted instead of dismissal.
Paragraph
7.5.18 requires that the sanction as determined by me, namely,
‘dismissal with demotion as an alternative’,
must be
presented to the employee who must make an election whether to accept
dismissal (the primary sanction) or demotion instead
of dismissal
(alternative sanction). The employee is given an option to
accept a lesser sanction as an alternative to the
primary sanction of
dismissal. Should the employee elect demotion instead of dismissal,
the Employee Relations Guidelines provides
that such an employee
shall not be eligible to apply for a promotion before the expiry of
one year after the sanction was imposed.’
[6] It is common cause that Ms
Moodley, through her legal representative, in response to the
clarification by the Chairperson, and
in a letter dated 15 February
2012, addressed to the Department, accepted the lesser sanction of
demotion.
[7] The letter further states that Ms
Moodley “
can be contacted directly regarding the
arrangements for her return to work
”. There was a
disagreement in argument before us about the date when this
acceptance was communicated. Ms Moodley’s
legal representative
contends that it is the 15
th
of February 2012, being the
date appearing on the letter of acceptance, while the Department’s
counsel submitted that the
acceptance was actually communicated on 20
February 2012.
[8]
In any event, it is common cause, that notwithstanding the lesser
sanction imposed by the Chairperson, and Ms Moodley’s
acceptance thereof, by letter dated 15 February 2012 the
Director-General of the Department informed Ms Moodley that she was
“
discharged
from the Public Service, in terms of section 16B(1) of the Public
Service Act, 1994 (as amended), on account of misconduct
”,
having been found guilty of the charges referred to earlier in this
judgment. In addition, Ms Moodley was informed, that
she could have
recourse to “
the
dispute settlement mechanisms
”
provided by the Labour Relations Act
[1]
(“LRA”) if she did not agree with the sanction, and that
her dismissal was “
effective
immediately
”.
[9] Ms Moodley declared a dispute of
unfair dismissal and the matter, which had been referred to the
GPSSBC, ultimately went to
arbitration. The
crux
of Ms
Moodley’s complaint was that the Department could not have
substituted the Chairperson’s lesser sanction of demotion
with
a dismissal and that such a substitution was inherently unfair. Ms
Moodley sought reinstatement.
[10] Both Ms Moodley and the
Department were legally represented at the arbitration. It is further
common cause that no evidence
was led before the arbitrator. It is
not entirely clear precisely which documents were contained in, or
omitted, from the agreed
bundle that was placed before the
arbitrator. Indications from counsel are that the documents included
the outcome of the disciplinary
hearing prepared by the Chairperson
and that the parties (by agreement) addressed the essential issue,
namely the fairness of the
sanction of dismissal imposed by the
Department, by way of heads of argument that were submitted to the
arbitrator.
[11] At the arbitration, the facts
leading up to the dismissal were common cause and Ms Moodley did not
dispute the procedural fairness
and the outcome of the disciplinary
process chaired by the Chairperson. The only issue was the fairness
of the sanction of dismissal
imposed by the Department in the
circumstances sketched above.
[12] The arbitrator concluded as
follows in her award dated 2 July 2012, under the heading “
Analysis
of Evidence and Argument
”:
‘
The
duty of an arbitrator is to decide whether or not the dismissal was
fair. The arbitrators are precluded from imposing
the correct
sanction (De Beers Consolidated Mines Ltd v CCMA and Others (2000) 21
ILJ 105 (LAC).
The
first question to be answered is whether the Chairperson dismissed
the Applicant or not. The answer is clear from the
clarification of the chairperson’s sanction. Although she
decided that the primary sanction was dismissal, she afforded
the
Applicant a choice to be demoted instead of being dismissed.
The Applicant thereafter decided to elect the sanction of
demotion
instead of being dismissed, thus rendering the sanction of dismissal
ineffective.
It
is clear from the Respondent’s own interpretation and
understanding of section 16B of the Public Services Act, 1994 that
the employer may only execute the decision of the Chairperson and not
change or amend it. The sanction of demotion of the
Applicant
in accordance with the chairperson’s ruling in relation to the
sanction or demotion should thus stand. The unilateral
decision of
the Respondent to change the chairperson’s decision after the
Applicant elected to be demoted rendering the Applicant’s
dismissal unfair.
In
the premises I find that the applicant was unfairly dismissed.’
[13] The arbitrator proceeded to make
the following award:
‘
5.1
The sanction of demotion should stand and the Respondent is ordered
to reinstate the
Applicant retrospectively,
5.2
The Respondent is ordered to pay the Applicant her salary from 21
February 2012
calculated at the salary scale of the Applicant at the
time of her dismissal;
5.3
The said amount must be paid on or before 30 July 2012
5.4
I make no order as to costs.’
[14] The Department brought an
application in the Labour Court on 21 September 2012 in which it
sought to review and set aside the
award of the arbitrator. I shall
deal with the basis and grounds for review in due course. In
addition, it sought to have the matter
remitted to the GPSSBC for a
hearing
de novo
before a different arbitrator. As alternative
relief, it sought to review and set aside the Chairperson’s
sanction of demotion.
Its notice of motion expressly states that the
application is brought in terms of section 158(1)(h) of the LRA.
[15] The Department’s
application was opposed by Ms Moodley, who was legally represented.
Various sets of documents were exchanged
in those proceedings,
certain of which gave rise to issues which the court
a quo
had
to deal with, and which I will deal with later in this judgment.
[16] Having condoned the late bringing
of the review application by the Department, the court
a quo
in its judgment proceeded to find that the arbitrator’s award
could be reviewed in terms of section 145 of the LRA, notwithstanding
that the application stated expressly that it was one brought in
terms of section 158(1)(h) of the LRA, and pursuant to a request
and
disavowal of reliance on section 158(1)(h) by the Department’s
counsel at the hearing.
[17]
The court
a
quo
found that the arbitrator’s award did not fall within the “
band
of reasonableness
”.
According to the court
a
quo
,
arbitrators are required to determine, having regard to a variety of
factors (including those in Schedule 8 of the LRA),
whether the
sanction of dismissal was fair. And what was required was for the
arbitrator to determine what was fair and did not
require the
arbitrator to defer to the employer’s decision, but to consider
all relevant circumstances.
[18] The court
a quo
concluded:
‘
The
arbitrator clearly failed to apply his mind to issues which were
material to the determination of the case before him, and does
commit
a reviewable irregularity. The issue before him was not whether
he was required to impose a ‘correct sanction’
or not.
To the extent that the arbitrator approached the issue before him by
reference to imposing the ‘correct sanction’
it follows
that the arbitrator failed to appreciate his mandate, and essentially
misconceived the nature of the enquiry before
him and invariably
arrived at an outcome that did not fall within the band of
reasonableness.’
[19] As motivation for remitting the
matter back to the GPSSBC, the court
a quo
held, in effect,
that it was not in a position to determine whether the dismissal was
fair, because the decision to dismiss was
a decision of the
Department and not that of the Chairperson of the disciplinary
process and that for the court
a quo
to determine the fairness
of the sanction “
would be to countenance the circumvention
of the very express provisions of the LRA disavowed
” by the
Department.
[20] Ms Moodley sought leave to appeal
the court
a quo’s
judgment on certain grounds. In brief,
on the ground that the court
a quo
had erred in concluding
that the arbitrator’s award was unreasonable; and in finding,
in effect, that an employer may change
a sanction of the Chairperson
of the disciplinary enquiry even though that sanction is not merely a
recommendation; and in deciding
the review in terms of section 145 of
the LRA after the Department had forsaken reliance on section
158(1)(h) of the LRA; and in
failing to take into account the
Department’s “
wholesale
” disregard for the
rules and in condoning the Department’s failure to comply with
the rules.
[21]
The court
a
quo
granted leave to appeal to this Court,
inter
alia,
after having had regard, at that stage, to the most recent judgment
of this Court on the issue of whether an employer could substitute
the final sanction of a Chairperson of a disciplinary enquiry,
namely,
South
African Revenue Service v CCMA and Others
[2]
(which matter I shall refer to as “
the
Kruger case
”
or “
Kruger
”).
[22] In brief, in
Kruger
the
SARS’ employee had been found guilty by a chairperson of having
made serious racist statements. The chairperson there
imposed a
sanction of a final written warning valid for six months as well as a
suspension, without pay for 10 days, and had ordered
the employee to
undergo counselling. The employer (SARS), however, changed the
sanction to a dismissal without affording the employee
an opportunity
to challenge this “
new
” sanction. The employee
referred the matter to the Commission for Conciliation, Mediation and
Arbitration (“
CCMA
”) for conciliation and later
arbitration, challenging the fairness of his dismissal. The CCMA
commissioner was to decide
whether the employee’s dismissal was
procedurally and substantively unfair and whether the employer was
empowered to substitute
the sanction of a warning and suspension with
one of dismissal. According to the employee in that matter, the
employer could only
have altered the sanction through a review of the
chairperson’s decision in that matter in terms of section
158(1)(h) of
the LRA – which was not done.
[23]
The CCMA commissioner in
Kruger
found for the employee, namely, that it was not legally permissible
for the employer to change or substitute the sanction imposed
by the
chairperson of the disciplinary proceedings - the basis being that
the employer was bound by a collective agreement in terms
of which it
had effectively waived its power to alter the chairperson’s
sanction. At the time there were also other decisions
of this Court
that supported that conclusion, namely,
Country
Fair Foods (Pty) Ltd v CCMA
(“
Country
Fair Foods
”);
[3]
South
African Revenue Services v Commission for Conciliation, Mediation and
Arbitration
[4]
(referred
to as “
the
Chatrooghoon case
”
or “
Chatrooghoon
”)
and
Hendriks
v Overstrand Municipality.
[5]
[24] The arbitrator in
Kruger
,
apparently, having merely, albeit implicitly, found that the
employee’s dismissal was substantively unfair, ordered the
employer to reinstate the employee on the conditions stated by the
chairperson of the disciplinary enquiry, namely, a final written
warning for six months, suspension without pay for 10 days and an
order that the employee undergoes counselling.
[25] The employer (SARS) in
Kruger
unsuccessfully challenged the arbitrator’s decision in an
application for review in the Labour Court. The employer then
appealed to this Court. This Court, referring,
inter alia,
to
Country Fair Foods
and
Chatrooghoon
confirmed the
Labour Court’s decision and dismissed SARS’s appeal.
[26]
Sutherland JA writing for this Court in
Kruger
stated:
[6]
‘
The
established law about an employer being disallowed from interfering
in the outcome of a disciplinary enquiry where the Chair
has the
power to make a final decision, which is the crucial issue in this
appeal has as its aim the protection of workers from
arbitrary
interference with discipline in a fair system of labour relations.
The principle is worthy of preservation.’
[27] That was the state of the law on
the topic at the time leave to appeal in this matter was dealt with.
In the interim, the employer
in
Kruger
appealed to the
Constitutional Court.
[28]
The Constitutional Court gave judgment in that matter on 8 November
2016.
[7]
Granting the employer leave to appeal this Court’s decision,
the Constitutional Court, in effect, reversed this Court’s
decision in the matter. While the Constitutional Court seemingly
accepted that the commissioner in
Kruger
could have concluded that the dismissal was unfair, because of the
substitution of the sanction by SARS and in circumstances where
the
employee was not granted a hearing before the dismissal, it held that
having made such a finding, the commissioner was, nevertheless,
enjoined by the law, namely section 193(2) of the LRA, to determine
whether the employer was to reinstate or re-employ the employee
and
the commissioner could only order reinstatement in the circumstances
set out in section 193(2).
[29] The section provides that the
Labour Court or arbitrator (which includes a CCMA commissioner) “
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
”.
[30]
The Constitutional Court in
Kruger
held that the commissioner had failed to make the section 193(2)
determination and had in fact ignored and had failed to take into
account evidence that the reinstatement or re-employment of the
employee would be intolerable and that the failures were
unreasonable.
[8]
Mogoeng CJ, writing for a unanimous court, stated:
[9]
‘
After
concluding that Mr Kruger’s dismissal was unfair, the
arbitrator immediately ordered his reinstatement without taking
into
account the provisions of section 193(2). She was supposed to
consider specifically the provisions of section 193(2)
to determine
whether this was perhaps a case where reinstatement is precluded. She
was also obliged to give reasons for ordering
SARS to reinstate Mr
Kruger despite its contention and evidence that his continued
employment would be intolerable. She was
required to say
whether she considered Mr Kruger’s continued employment to be
tolerable and if so, on what basis. This was
not done. She does
not even seem to have considered whether the seriousness of the
misconduct and its potential impact in
the workplace, were not such
as to render reinstatement inappropriate and those are the
key-factors she ought to have considered
before she ordered SARS to
reinstate Mr Kruger.’
In this matter
[31] In this matter, counsel for the
Department, who had replaced earlier counsel, made submissions on the
merits of the review
and placed great reliance on the Constitutional
Court’s decision in
Kruger
. The argument of the
Department before us was, essentially, that the arbitrator in the
present matter had failed to do what she
was supposed to do before
ordering reinstatement. Reference was made to the serious nature of
the charges which Ms Moodley had
been found guilty of and the fact
that in respect of five of those nine charges, the arbitrator had
imposed dismissal as a sanction.
Counsel for the Department also
pointed out that the overall primary sanction was also dismissal even
though the arbitrator had
purported to impose demotion as an
alternative sanction. It was submitted, in effect, that the
arbitrator’s overall sanction
did not make sense, because one
could not impose a sanction of dismissal together with an alternative
sanction of demotion.
[32] As regards the merits, Ms
Moodley’s legal representative tried to distinguish the present
matter from that of
Kruger
on the basis that here there was no
evidence at all placed before the arbitrator. The parties had defined
the issues and by agreement
had only dealt with the matter by way of
argument. Ms Moodley’s counsel submitted that the Chairperson’s
sanction was
in line with paragraph 7.5.18 of the Department’s
Employee Relations Guidelines – which the Chairperson had also
referred
to in her sanction and in the clarification of the sanction.
Ms Moodley’s legal representative also continued with an attack
on the court
a quo’s
judgment on the procedural issues.
[33] I will deal with the procedural
attack later. In respect of the merits, it is apparent from the
arbitrator’s award that
he or she did not refer at all to
section 193 of the LRA. Like the arbitrator in
Kruger,
she, or
he, does not even seem to have considered whether the seriousness of
the misconduct and its potential impact in the workplace,
were not
such as to render reinstatement inappropriate. The arbitrator’s
failure to do so, in circumstances where she, or
he, was legally
obliged to do so, is justifiably criticised as being unreasonable and
as a failure to apply his or her mind to
the issues.
[34] The court
a quo
perhaps
presciently held that the arbitrator was required to consider all the
relevant circumstances and that the arbitrator had
“
essentially
misconceived the nature of the enquiry before him
[or her]”.
[35]
The appellant however has also attacked the court
a
quo’
s
entertainment of the Department’s review application. The
argument in this regard was that the court
a
quo
should
have dismissed the review essentially because the application was
fatally defective. It was submitted, in particular, that
the court
a
quo
erred in reviewing the arbitrator’s award in terms of section
145 of the LRA when the Department had expressly in its founding
papers made a case for a review in terms of section 158(1)(h) of the
LRA, and in circumstances where the
Department’s
counsel merely in oral argument at the hearing relied on section 145
and disavowed reliance on section 158(1)(h).
Secondly, for taking
into account the supplementary affidavit which the Department filed
in circumstances where it was not entitled
to do so and, thirdly, in
condoning the late bringing of the review application. I will
consider these arguments briefly.
[36]
The court
a
quo -
mindful
of the trite principles in motion proceedings, that a party should
stand or fall by its notice of motion and the averments
made in its
founding papers and that it was not permissible to make out a case in
the replying affidavit –
[10]
held that “
the
legal basis
”
of the Department’s claim was to a large extent founded on
section 145.
[37]
Applying the principle – stated in
Gcaba
v Minister for Safety and Security and Others,
[11]
albeit made there with reference to the determination of
jurisdiction, namely, that jurisdiction is determined by establishing
from the pleadings, properly interpreted, what the legal basis of an
applicant’s claim is– the court
a
quo
concluded that the Department’s founding papers, properly
construed, confirmed that its claim was “
largely
founded upon section 145 of the LRA
”.
[38] The court
a quo
reasoned
that despite the reference to section 158(1)(h) in the notice of
motion, the Department in prayer 1 of its notice of motion
sought to
review and set aside the award of the arbitrator and that prayer 3 of
the notice of motion, which related to the setting
aside of the award
of the Chairperson, which would ordinarily have been competent in
terms of section 158(1)(h), had been abandoned.
Further, that in the
founding affidavit the deponent for the Department had explained that
the purpose of the application was to
set aside the arbitrator’s
award on the basis that the arbitrator had committed a gross
irregularity. And, that in the Department’s
supplementary
affidavit it was expressly stated that the arbitrator’s award
was defective within the meaning of section 145
of the LRA. The court
a quo
also, seemingly, found that Ms Moodley had properly
anticipated the review in terms of section 145 and had sufficiently
dealt with
the averments in her answering papers.
[39] In this Court, the appellant (Ms
Moodley) did not complain of any prejudice that she sustained because
the matter was construed
as a review in terms of section 145, but the
argument made on her behalf emphasised the express reference to
section 158(1)(h)
in the notice of motion; the unacceptability of the
Department’s supplementary affidavit; and the disavowal by
counsel for
the Department at the hearing of a reliance on section
158(1)(h). I cannot see that the appellant was in any way prejudiced
by
the fact that the court
a quo
construed it as a section 145
review. It is trite that the awards of the kind, made by the
arbitrator in this case, are properly
reviewed in terms of section
145 and not in terms of section 158(1)(h) of the LRA.
[40]
Section 145 is for the review of awards made in relation to disputes
in arbitration proceedings under the auspices of the CCMA,
and,
though not expressly stated in section 145, also for the review of
awards made in relation to disputes in arbitration proceedings
conducted under the auspices of a duly accredited bargaining council.
The latter performs the function of dispute resolution in
place of
the CCMA
[12]
and a bargaining council may even enter into an agreement with the
CCMA in terms of which the CCMA is to perform on its behalf
its
dispute resolution functions.
[13]
[41] The reviews contemplated in
section 158(1)(h) are not in respect of awards of the kind made by
the arbitrator in this matter.
Section 158(1)(h) is intended to
generally empower the Labour Court to review other kinds of decisions
on such grounds as are permissible
in law.
[42] While I am sceptical of the court
a quo’s
recognition of the supplementary affidavit of
the Department, for the reasons I will briefly deal with later, I am
of the view
that it did not err in construing the review of the
arbitrator’s decision as one brought under section 145 of the
LRA. There
was clearly no resultant prejudice. In these
circumstances, the point, in my view, appears to be purely and overly
technical.
[43] In her notice of appeal, the
appellant does criticise the court
a quo’s
condonation
of the Department’s failure to comply with Rule 7A(8) of the
Labour Court Rules. In particular the appellant
criticises the court
a quo
for allowing the supplementary affidavit which was
filed, despite the fact that no Rule 7A(8) notice and no record had
been delivered,
and even though the supplementary affidavit had been
filed eight months late.
[44] It is indeed so that a general
condonation application was delivered by the Department in which it
sought condonation for “
the late serving
” of its
review application as well as for the “
the transcribed
record”,
“
the explanatory affidavit on compliance
of Rule 7A
”, even in respect of “
the answering
affidavit
” and its notice of motion and supplementary
affidavit, its notice of intention to amend, its notice of motion
with reference
to paragraph 25 of its replying affidavit and for the
late delivery of the very condonation application.
[45] It is common cause that this
application for condonation application was bizarre in some respects,
in that condonation was
sought, for example, for the late filing of
the appellant’s “
answering affidavit
”, and
for the late delivery of documents that had never been delivered at
all. This condonation application was seemingly
brought in
anticipation that certain documents would be delivered, but which
were never delivered.
[46] Nevertheless, before us the
appellant’s criticism was largely levelled at the court
a
quo’s
condonation of the late bringing of the review
application and its, seeming, admission of the Department’s
supplementary
affidavit.
[47]
It is trite that condonation requires the exercise of a discretion in
deciding whether good or sufficient cause has been shown
for the
failure to comply with the rules.
[14]
The discretion has to be exercised judicially, taking into account
all relevant facts and circumstances, but, in the final analysis,
it
is a matter of fairness requiring the balancing of at least the
following factors: the degree of lateness, the explanation for
the
delay, the prospects of success and the importance of the case. A
slight delay and a good explanation may make up for weak
prospects of
success and on the other hand, the importance of the issues and good
prospects of success may make up for a long delay.
[15]
[48] A court on appeal will only
interfere where it is shown that the discretion has not been properly
and judicially exercised.
[49] The Department’s
application had to be brought within six weeks of the award in terms
of section 145(1)(a) of the LRA.
The award in this matter was issued
on 2 July 2012 and the application for review was only brought on 21
September 2012, meaning
that it was brought about six weeks late, as
was also found by the court
a quo
.
[50] The appellant gave an explanation
for the delay. The matter had previously been handled by another
state attorney and had been
taken over by the deponent to the
affidavit in support of the condonation application, who assumed that
certain steps had been
taken in time, whereas they were not. The
deponent, at the time of deposing to the affidavit, also seems not to
have appreciated
that the application was one in terms of section 145
which ought to have been brought in six weeks.
[51] The court
a quo
concluded
as follows on the issue of condonation:
‘
[17]
I have regard to the extent of the delay, which in my view is not
excessive in the extreme. I
further had regard to the
explanation proffered for the delay, which in my view is
satisfactory. Crucially however is the
prejudice to be suffered
by the applicant if condonation was not granted, especially in view
of the circumstances that led to the
dismissal of Moodley, the fact
that she did not challenge the verdict of the Chairperson, and the
party’s prospects in respect
of the main claim. In my
view, considerations of justice in the light of the material
circumstances of this case dictate
that condonation should be
granted.
[18]
Further in the light of the above considerations, it is also deemed
appropriate to condone the
applicant’s non-compliance of
[sic]
the
provisions of Rule 7A. Account is also taken of the first
respondent’s late filing of the record in terms of Rule
7A(4)
of the Rules of this Court on 27 November 2012, which was accompanied
by an ‘explanatory affidavit’ in view of
non-compliance
with the time period. The delay essentially was caused by the
arbitrator who had not responded to the first respondent’s
repeated requests to file a record.’
[52] I cannot find that the discretion
had been exercised wrongly. The court
a quo
was conscious and
took into account the relevant facts in coming to a pragmatic and
fair conclusion. The delay was not unduly excessive
and the weak
explanation was compensated for by the fact that the issues were of
great importance and the prospects of the application
were good. In
my view, the supplementary affidavit as such added no further
substance to the grounds relied upon by the Department.
The main
issue is very narrow. In any event, the appellant had an opportunity
to, and did in fact, answer to the Department’s
founding papers
as supplemented.
[53] I do not agree with the reasoning
of the court
a quo
on the merits, but I find that its
conclusion that the arbitrator’s award had to be set aside is
correct. I have earlier pointed
out why the arbitrator’s award,
in light of the Constitutional Court’s decision in
Kruger
,
is unreasonable, or not an award a reasonable arbitrator would have
made.
[54] The order of the court
a quo,
including the order that the matter be referred back to the GPSSBC
for a hearing
de novo,
cannot be faulted, although I do not
agree with the reasons given by the court
a quo
for remitting
the matter. This Court can only do what the arbitrator ought to have
done if it is placed in possession of all the
facts that were before
the arbitrator. In this instance, the record or bundle that was
before the arbitrator was not filed and
there is an issue about
whether the arbitrator was bound by law to have called for further
information in deciding whether an order
of reinstatement was
appropriate in the circumstances.
[55] I am of the view, taking into
account all of the circumstances and the law and fairness, that,
notwithstanding the outcome
of this appeal, there should be no order
as to costs.
[56] In the result,
the appeal is dismissed.
__________________
P Coppin
Judge
of the Labour Appeal Court
Ndlovu JA and Savage AJA concur in the
judgment of Coppin JA.
APPEARANCES:
FOR THE
APPELLANT:
B Conradie of Bradley Conradie
Halton Cheadle
Attorneys
FOR THE RESPONDENTS:
B R Tokota SC with M Gwala
Instructed by The State Attorney
Pretoria
[1]
Act
No. 66 of 1995.
[2]
[2016]
3 BLLR 297
(LAC); (2016) 37 ILJ 655 (LAC).
[3]
(2003)
24 ILJ 355 (LAC).
[4]
[2013]
ZALAC 26
; now reported in (2014) 35 ILJ 656 (LAC). See at para 35.
[5]
[2014]
ZALAC 49
; now reported in (2015) 36 ILJ 163 (LAC).
[6]
At
para 48.
[7]
See
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2017]
1 BLLR 8 (CC).
[8]
See
para [44].
[9]
See
at para [44].
[10]
This
principle has been restated in many cases and was restated recently
by the Constitutional Court in
Betlane
v Shelly Court CC
2011 (1) SA 388
(CC) at para 29 and
Khumalo
and Another v MEC for Education: KwaZulu-Natal
2014 (3) BLLR 333
(CC) at para 87.
[11]
2010
(1) BCLR 35
(CC) at paras 74 to 75.
[12]
See
section 28(1)(c) of the LRA read with section 127(1)(a) and (b) and
section 51 of the LRA.
[13]
See
section 51(6) of the LRA.
[14]
See
example
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A) at 532B-E.
[15]
Ibid.