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[2009] ZALCJHB 83
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Workers Equally Support Union of South Africa (WESUSA) obo Modise and Others v Slabbert Burger Transport (Pty) Ltd; In Re: Slabbert Burger Transport (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (J745/06; J184/05) [2009] ZALCJHB 83 (3 February 2009)
NOT
REPORTABLE
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. J 745/06
WORKERS
EQUALLY SUPPORT UNION OF SOUTH AFRICA
(“WESUSA”)
obo AMOS MODISE & 4
OTHERS
Applicant
and
SLABBERT
BURGER TRANSPORT (PTY) LTD
Respondent
CASE
NO. J 1840/05
In
the matter between:
SLABBERT
BURGER TRANSPORT (PTY)
LTD
Applicant
and
NATIONAL
BARGAINING COUNCIL
FOR
THE ROAD FREIGHT INDUSTRY
First
Respondent
COMMISSIONER
P COHEN
N.O.
Second Respondent
AMAWU
obo P NTULI & 5
OTHERS
Third Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
There are two applications before the Court. The first (under
case number J745/06) is an application in terms of section
158(1)(c)
of the Labour Relations Act in terms of which the Applicant (to which
I shall refer as the union) seeks to have a settlement
agreement
concluded with the Respondent made an order of this Court. The second
application (under case number J1840/05, and in
respect of which I
refer to the applicant as “the Respondent” for the sake
of convenience) is one in which the Respondent
seeks to have the
settlement agreement reviewed and set aside, alternatively an order
directing that the agreement is of no force
and effect. Other parties
to that application are a Mr Motime (substituted for Mr Cohen, who
was mistakenly cited) and the Bargaining
Council for the Road Freight
Industry. Neither of these parties opposes the application.
[2]
The factual circumstances in which these applications arise are not
contentious. The Respondent dismissed the individual applicants
who
referred a dispute, categorised as a dispute concerning an unfair
labour practice, to the bargaining council. A telephonic
conciliation failed to resolve the dispute and a certificate of
outcome confirming that the unfair labour practice dispute remained
unresolved, was issued.
[3]
The dispute was referred to arbitration on 17 August 2005 before
Mr Motime, to whom I shall refer as "the arbitrator".
In the absence of a pre-arbitration meeting, the arbitrator suggested
that the parties might wish to conduct such a meeting and
in this
context, enquired whether the Respondent was prepared to settle the
case. The Respondent’s representative at
the proceedings,
Mr Beer, indicated that for commercial reasons, the Respondent
was prepared to consider a settlement. At
the same time, Mr Beer
avers that he drew the arbitrator's attention to the fact that he
intended to argue that the bargaining
council had no jurisdiction to
arbitrate the dispute since the dispute referred was one concerning
an unfair labour practice rather
than an unfair dismissal. Having
said that Beer, on his own version, was aware that the arbitrator was
not necessarily bound by
the characterisation of the dispute in the
referral form. It bears mentioning too that Beer's
jurisdictional point
was limited to the characterisation of the
dispute - he did not allege, nor was it contended in these
proceedings, that the bargaining
council had no jurisdiction over the
parties in the sense that they were engaged outside of its registered
scope or that the dispute
was not otherwise the subject of a proper
referral.
[4]
The arbitrator separated the parties and engaged in what was referred
to as “
to-ing and fro-ing”
between them to discuss
a possible settlement. Beer disclosed to the arbitrator that he had a
mandate to settle the claims on terms
that would give each of the
individual Applicants the equivalent of 3 months remuneration. During
the course of the discussions,
the arbitrator disclosed to Beer that
the Union was prepared to accept payment of the equivalent of 7
months’ remuneration
in respect of each of the individual
Applicants. Beer replied that he had no mandate to settle on that
basis, but attempted to
contact one of the Respondent’s
directors. In this context, Beer avers that the arbitrator made it
clear that the case was
scheduled for arbitration and would be
finalised on that day.
[5]
Beer was unable to contact a director and could not get a mandate to
settle the dispute on the basis of the Union’s proposal.
He says that he conveyed this to the arbitrator and was told by him
that if the matter did not settle “
that he would be asked,
and had the power to make an award of a year’s salary …”.
Further, Beer avers that the arbitrator indicated that there was
a strong possibility that the union's members had a good chance
of success since the union had alleged that its members were not
allowed to be represented by the trade union at their hearings
and
that if he found that the Applicant had not followed a fair procedure
he would have the power to make a significantly greater
award than 7
months. Beer avers further, “
the Second Respondent
[the
arbitrator]
reiterated and told me that he could make an award of
12 months’ salary and that the Third Respondent
[the
union]
would ask that he do so if we did not settle."
[6]
On this basis, Beer avers that he was "overwhelmed and unsure”
as to what the Applicant’s rights were, and
that he was out of
his depth. He submits that under an unacceptable level of pressure,
coercion and duress, he was compelled to
sign the agreement on the
basis proposed by the Union and supported by the arbitrator.
On his return to Cape Town,
having explained to the Applicant’s
directors what had transpired, he was instructed to seek legal advice
and the application
to review was launched.
[7]
I do not intend for the purposes of this judgment to canvas all of
the arguments submitted by the Respondent in support of its
contention that the arbitrator committed a reviewable irregularity.
One of the Respondent’s primary contentions is that the
arbitrator ought to have enquired into the merits of the dispute, and
ascertained, in particular, whether the bargaining council
had
jurisdiction to entertain the dispute. It was also
submitted that the arbitrator ought to have investigated the
facts
and made a determination on the basis of what the Union had pointed
out its case to be. In short, it was submitted that the
arbitrator
orchestrated an environment for settlement discussions to the
prejudice of the Respondent and that he failed properly
to advise
Beer of his rights and obligations.
[8]
I am not persuaded, on the Respondent’s own version, that it is
entitled to the relief that it seeks. The LRA acknowledges
mediation (the nature of the process undertaken by the arbitrator in
the pre-arbitration phase) as a preferred form of dispute
resolution.
Mediation is often a robust process in which the mediator will seek
to persuade and cajole parties, using techniques
that rely on gentle
and less gentle pressure to reach agreement. Obviously, a mediator
cannot overstep the mark and act dishonestly,
or misrepresent a
position to the parties, or engage in conduct that amounts to
intimidation. In
National Union of Metalworkers of SA &
others v Cementation Africa Contracts (Pty) Ltd
(1998) 19
ILJ
1208 (LC) Waglay J said:
“
While a
commissioner may not advise the parties on the merits or compel
parties to adopt any particular view, he or she may indicate
to the
parties making the claims or demands the possible weaknesses in their
claims or demands.”
[9]
There may often be a fine line involved here, but there are a number
of self-evident guidelines that might apply in a situation
where a
panelist attempts, with the parties’ agreement, to explore the
prospect of a settlement before arbitrating a dispute.
First, the
hallmark of the process is its voluntary nature. The panelist must
therefore protect the voluntary participation in
the process of each
party, and respect the right of the parties to reach their own
agreement. Secondly, the panelist should conduct
the process
impartially. By this, I mean not only that the panelist should avoid
a conflict of interest, but also that the panelist
should avoid
communicating any pre-existing opinion that might bring her integrity
and impartiality into question. Any conduct
that might compromise the
position of the panelist as a neutral intermediary should be avoided.
This does not imply, as the quote
from the
Cementation Africa
judgment suggests, that the panelist is not entitled to provide an
evaluation of a party's position nor sketch likely outcomes
should a
dispute proceed to arbitration. But the panelist should avoid any
expression of her own views to the parties on the merits
of their
positions.
[10]
I am not persuaded that in the present instance, the arbitrator acted
unethically. This is evident from Beer's own evidence
in which the
arbitrator's language is expressed in tentative terms. He avers that
the arbitrator stated that if the matter proceeded
to arbitration he
would
be asked and
would
have the power to award the
employees a year’s remuneration. These are the arbitrator's
powers under the LRA, and the union
would have been quite within its
rights to seek that relief. It does not appear from Beer's evidence
that the arbitrator expressed
his own opinion on the outcome of any
arbitration, or that he ever stated that he would make an award less
favourable to the Respondent
than the terms of the union's proposal.
In other words, there is no evidence that the arbitrator pointed out
anything other than
a range of possibilities should the matter
proceed to arbitration. It was for Beer to assess the Respondent's
risk in the light
of those possibilities, and to decide whether to
settle the dispute on the terms proposed. In short, I am unable to
find on the
evidence before me that the arbitrator made any
misrepresentations to Beer, that he subjected Beer to any form of
duress, or that
he acted otherwise in a manner that was unbecoming.
[11]
In relation to the submission that the arbitrator was obliged to have
dealt with the jurisdictional point, nothing precluded
Beer from
persisting with the point rather than agreeing to participate in the
conciliation process. It was always open to Beer
to contest the
merits of the dispute (which included any jurisdictional point about
the characterisation of the dispute) rather
than seek a settlement.
Beer does not suggest that he participated in the process against his
will - on the contrary, he had arrived
at the proceedings with a
mandate to settle the dispute based on a payment of 3 months'
remuneration to each of the dismissed employees.
Instead, Beer
elected to remain a participant in the conciliation proceedings, and
concluded the settlement agreement on behalf
of the Respondent in
circumstances where he knew he had exceeded his mandate. On his
return to Cape Town, he had to face the wrath
of his principals. The
irresistible conclusion is that this is what ultimately prompted this
application. Beer's conduct is of
course not a basis on which the
agreement may be set aside - Beer held himself out to have the
Respondent's authority to sign the
agreement and the union acted on
that representation. There is accordingly no reason for this
Court to set aside the agreement.
[12]
Finally, the individual applicants joined the union that initiated
these proceedings (the Workers Equally Support Union of
South Africa)
after the referral of the dispute to the bargaining council. Until
then, another union had acted on their behalf.
In these
circumstances, there must be some doubt whether the union is a
genuine trade union as contemplated by the LRA and the
guidelines
that apply to the determination of genuine trade unions and employer
organisations. In these circumstances, it is prudent
to order that
all monies due to the individual applicants in terms of the
settlement agreement be paid directly to them, and that
none of them
be obliged to make over any amounts to the union or any of its
officials.
[13]
I therefore make the following order
1
The agreement concluded under the Bargaining Council’s
reference number D454/JHB/4740/05A on 17 August 2005 is made an Order
of Court;
2
The full amounts payable to the individual applicants in
terms of the
settlement agreement, with interest payable at 15% from the date of
the agreement shall be paid directly to them,
and none of them shall
be required to pay over any part of the amount to the union or any of
its officials;
3
the application to review and set aside the settlement
agreement is
dismissed;
4
there is no order as to costs.
________________________
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
3
February 2009
APPEARANCES
For
the Applicant:
C Ndlovu (Union
Official)
For
the Respondent: Attorney Grant Marinus
Jan S De Villiers