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[2006] ZALCJHB 11
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United Transport And Allied Workers Union obo Rooyen v Plaatjies NO and Others (JR1091/03) [2006] ZALCJHB 11 (15 September 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1091/03
In
the matter between:
UNITED
TRANSPORT AND ALLIED WORKERS
Applicant
UNION
obo S G VAN ROOYEN
and
SAM
PLAATJIES N.O
First
Respondent
THE
TRANSNET BARGAINING
COUNCIL
Second
Respondent
TRANSNET
LIMITED t/a
TRANSWERK
Third
Respondent
JUDGMENT
SANGONI
AJ
THE
PARTIES
[1]
The applicant is United Transport and Allied Union (UTATU) previously
called United Transport and Allied Workers Union which
has undergone
a name change subsequent to an amalgamation with some other unions.
It is a union registered in accordance with the
Labour Relations Act
(LRA). It acts in these proceedings on behalf of one S G Van Rooyen,
its member.
[2]
The first respondent is cited herein in his capacity as an arbitrator
appointed by the Transnet Bargaining Council (TBC) to
arbitrate under
the latter’s auspices.
[3]
The second respondent is the Transnet Bargaining Council duly
established in terms of the LRA.
[4]
The third respondent is Transnet Limited a registered company wholly
owned by the State.
INTRODUCTION
[5]
The dispute in the arbitration before the first respondent concerned
whether it was an unfair labour practice or not for the
third
respondent to appoint one Van Rensburg to a vacant post without it
being advertised, effectively excluding Van Rooyen who
would have
applied and perhaps appointed.
[6]
The first respondent came to the conclusion that the second
respondent lacked jurisdiction to arbitrate the dispute as the
appointment of Van Rensburg was the product of an agreement entered
into by and between the applicant union, third respondent and
other
relevant unions.
[7]
This is an application for the review of the arbitrator’s
award, if needs be, to set it aside or correct it.
CONDONATION
[8]
It is common cause that this application was brought 24 days outside
the period of six weeks stipulated in section 145 (a)
of the LRA. The
award was telefaxed to the applicant union on 25 April 2003. These
proceedings were instituted on 2 July 2003.
[9]
In support of the application for condonation the applicant union
alleges that it took time to contact Van Rooyen to advise
him of the
award and to obtain instructions. Coupled with that is the fact that
the union official, handling the matter on behalf
of Van Rooyen,
forgot to diarise the relevant file. As a person without training in
the proper administration processes to ensure
the timeous filing of
applications of this nature, he claims he slipped and was not able to
do it within the stipulated time.
[10]
I am of the view that this is not the best kind of explanation
regarding the reasons for lateness and the degree thereof. I,
however, think fairness to both parties is a real and material
consideration. As will be shown hereunder in this judgement, I hold
the view that there are prospects of success. I thus grant the
application for condonation.
THE
FACTS
[11]
The applicant was at all material times, and still is, the employee
of the third respondent. During or about December 2001
he was
employed as an Inventory Manager. Without the position of Profit
Centre Manager having been advertised, Van Rensburg was
appointed to
it. The applicant complained about the fact that the post had not
been advertised nor were there interviews held for
the appointment.
[12]
The basis of the opposition of the current application is that the
applicant union is a signatory to the constitution (“the
constitution”) of the Transwerk Joint Transformation Committee
(TWJTC) drawn and signed by the third respondent’s management
and labour, the latter represented by several labour unions on 21
July 1998. It is the third respondent’s case that as a
consequence to the constitution, a collective agreement was entered
into between the parties, appointing Van Rensburg to the position
in
question. The applicant union signed the said agreement. The
contention of the third respondent is thus that the applicant
is barred or estopped from challenging its own decision and therefore
Van Rooyen, its member, stands to suffer the same fate.
[13]
The document, recording the supposed collective agreement, is
annexure B to the founding papers. It reflects that it was signed
on
14 November 2001 by eight persons from management and labour. One of
them is Mr B Jonker (Jonker) signing on behalf of applicant
union.
The document is headed TRANSWERK: UITENHAGE. There is nowhere on the
document where what is being agreed upon is expressed.
It sets out
only the details relating to the position in question as well as Van
Rensburg. They are recorded as follows:
POSITION
-
Profit
Centre Manager(RER)
SALARY GROUP
- 109
NAME
-
F Janse van Rensburg
EMPLOYEE NUMBER
-
578252
REASON
-
Vacancy
WHITE
- 1
BLACK COLOURED INDIAN -
FEEDING
SOURCE
-
Operations
(RFR)-110
Mr
Hutchinson has, however, conceded from the bar that the
recommendation to appoint Van Rensburg was made but there is nothing
to show that it was communicated to the person who has the power to
appoint or that it was acted upon.
[14]
The applicant contends that annexure B embodies a recommendation made
by a local working committee of the TWJTC, a structure
that has no
decision making powers except to make recommendations. This is in
terms of clause 5.3.4 which reads:
“
Working
committees shall make recommendations to the TWJTC and shall have no
decision making powers”.
[15]
A dispute of fact should have confronted the commissioner. The
respondent averred that local working committee was mandated
to take
decisions regarding junior personnel. A further such dispute was that
the position in question was a senior post. The commissioner
has not
dealt with this issue in his award.
[16]
At the arbitration the representative of the third respondent argued
that annexure B embodied an agreement between the parties
to nominate
Van Rensburg with a view to avoiding possible retrenchment of its
employees, which would be possible if the post had
been advertised.
If advertised, a person from outside Transwerk could be appointed,
that would then lead to retrenchment of at
least one of the internal
employees. The commissioner also referred to annexure B as a
nomination form and that the approval and
appointment of Van Rensburg
was done by the third respondent. In the opposing affidavit it is
stated on behalf of the third respondent
that annexure B “records
that Janse Van Rensburg is appointed as Profit Centre Manager by
reason of a vacancy”. This
is not reconcilable with the
arguments of the respective parties before him. One argument says the
parties to the agreement appointed,
the second one speaks of a
recommendation. No one speaks of appointment by the third respondent
or approval of a nomination.
[17]
Another issue is whether the commissioner should not have considered
whether the ‘agreement’ falls within the ambit
of the
constitution. It would appear that the genesis of the constitution
was the quest for transformation. TWJTC is described
in the
constitution as “Corporate and final decision making body of
the transformation process in Transwerk”. Counsel
agreed
though, that the objective to be achieved relates to the
transformation process. Nothing in the constitution indicates that
the constitution is all about transformation matters. I can only
express some doubts that appointing a person from a non-designated
group accords with the transformation process. Mr Makka, for the
respondent, submitted that the appointment was about restructuring
which is closely related to transformation. The question of whether
the appointment fits in with transformation was not placed
before me
nor the arbitrator. I am thus making no decision in this regard.
[18]
Section 10 of the constitution reads:
“
Failing
all good faith attempts to achieve consensus, disputes between the
parties shall be resolved in terms of the Transnet JTC
guidelines.
This does not in anyway infringe on the right of any party in terms
of the Transnet Bargaining Council and the
Labour Relations Act of
1995
”.
[19]
A reasonable interpretation seems to be that each union, including
individual members thereof, retain their rights envisaged
in the LRA.
One of such rights is the right to refer the dispute to the relevant
bargaining council. The argument presented on
behalf of the third
respondent was that the applicability of
section 10
was not raised
before the commissioner. Indeed the point was not raised at the
arbitration. Mr Makka conceded, fairly in my view,
that had the point
been taken it would have been appropriate for the arbitrator not to
uphold the point
in
limine.
The
concession takes care of the submission to the effect that Van
Rooyen, being a member of the applicant union that signed the
agreement to appoint Van Rensberg, waived his right to challenge the
appointment.
[20]
What remains to be determined in this regard, is whether the omission
to take that point before the commissioner precludes
the commissioner
from considering it. For the purpose of his award the constitution
was placed before him. The main issue he had
to decide was whether
annexure B bound Van Rooyen, having regard to the fact that it was
signed by the applicant union of which
he was, and still is, a
member. That exercise would necessitate the perusal of the
constitution. Whether the provisions of
section 10
thereof were
raised specifically or not, would be immaterial. Failure to consider
such provisions, points to the commissioner misconducting
himself in
relation to his duties as an arbitrator. Such omission also
constitutes gross irregularity, justifying the setting aside
of the
award.
[21]
The respondent has abandoned its prayer for costs because of the
employment relationship that still exists between it and Van
Rooyen.
In deciding on costs I take into account the said relationship and
also the fact that this case has its own history. At
some stage the
applicant withdrew the application and later resuscitated it due to
some misunderstanding between the applicant
union and Van Rooyen. My
view is that costs should not follow the result.
I
thus make the following order:
a) The
award of the arbitrator made on 17 April 2003 is hereby set aside;
b)
The matter referred to the second
respondent for arbitration by by an arbitrator other than the first
respondent;
c)
Each party to pay their own costs.
___________________
C
T SANGONI
ACTING
JUDGE OF THE LABOUR COURT
For
applicant:
Advocate E Hutchinson
(instructed
by Fluxmans Incorporated)
For
the respondent: Mr Ajay Makka
(instructed
by Hofmeyr Inc)
Date
of hearing: 23
August 2006
Date
of judgment: 15 September 2006