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[2009] ZALCJHB 9
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NEHAWU obo Jefferson v Department of Water Affairs and Others (JR1368/08) [2009] ZALCJHB 9 (18 June 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR 1368/08
In
the matter between:
NEHAWU
obo J A
JEFFERSON Applicant
and
DEPARTMENT
OF WATER AFFAIRS & OTHERS
Respondent
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside a decision made by the
third respondent, who was the arbitrator in a dispute
between the
individual applicant Mr Jefferson and the first respondent, the
Department of Water Affairs, Mr Jefferson's
employer. The
arbitrator ruled that a subsidised vehicle provided to an official in
terms of the applicable policy was a working
tool and not a benefit
for the purposes of the definition of unfair labour practice
contained in Section 186(2) of the Labour Relations
Act. The
arbitrator held that the Bargaining Council, to which the dispute had
been referred, accordingly lacked jurisdiction to
entertain a claim
in which Jefferson claimed that the first respondent had committed an
unfair labour practice by withdrawing its
approval initially granted,
that he would be allocated a subsidised vehicle.
[2]
The facts relevant to the application are broadly not in dispute.
Jefferson was transferred from a provincial department
in the Free
State to the provincial Department of Agriculture, Conservation,
Environmental and Land Affairs in Gauteng. On 17 October
2006, he was
transferred to the first respondent. Jefferson had, in the course of
his employment, been furnished with a subsidised
motor vehicle in
terms of the applicable policy. He drove that vehicle in
circumstances in which a total amount of 37 000
kilometres had
been travelled on it. Afterwards, Jefferson sold the vehicle in
circumstances in which he had not travelled what
is referred to as
the 84 000 official kilometres that, in terms of the applicable
policy, he was obliged to do travel in the
subsidised vehicle.
[3]
After his employment by the respondent, Jefferson applied for the
allocation of a subsidised vehicle. The allocation was initially
approved. The approval was later withdrawn on the basis that
Jefferson had not complied with the requirement that he travel at
least 21 000 a year for a period of four years, and that having
sold the vehicle prior to travelling the required official
kilometres, he was not entitled to be allocated a further subsidised
vehicle.
[4]
In these proceedings, which, as I have indicated, were initiated to
review and set aside the ruling made by the third respondent,
there
is no record of any evidence that may have been led at the
arbitration hearing. It is evident from the arbitrator's award
that
the first respondent raised a point
in limine
at the outset of
the arbitration proceedings to the effect that the Bargaining Council
had no jurisdiction to arbitrate the dispute,
on the basis that a
subsidised vehicle constituted a working tool and not a benefit. The
parties then appeared to have submitted
what seems to be heads of
argument on the point. In his response, the applicant's
representative contended that the applicant was
engaged as an
official in a category that entitled him to the benefit of a
subsidised vehicle. The heads filed on behalf of the
applicant
concluded:
"We request to pray
to the commissioner to rule that the matter might be arbitrated after
satisfying himself that the GPSSBC
has absolute right to entertain
the matter at arbitration level (sic)."
[5]
The arbitrator appears to have made a ruling that the vehicle did not
constitute a benefit on the basis only of the written
submissions
made by the parties. It is trite that the material properly before a
commissioner or a Bargaining Council arbitrator,
as is the case in
this instance upon which he / she can base a decision is ordinarily
limited to evidence under oath, whether this
is introduced
viva
voce
or by affidavit, or to evidence introduced by agreement
between the parties. In this regard, see
DB Thermal v CCMA and
others
2000 (10) BLLR 1163
(LC). In the present matter, there was
no proper evidentiary basis on which the third respondent could make
a jurisdictional ruling.
No evidence was led before him, and there is
no evidence before me of any agreement that evidence might be
introduced by the parties
on affidavit or by any other means. On the
contrary, the applicants, in their written submissions, clearly
expected that evidence
would be led in order to substantiate their
claim that Jefferson qualified for a subsidised vehicle based only on
his occupational
level.
[6]
The applicant's claim, i.e. that despite the wording of the official
policy, subsidised vehicles were allocated to officials
above a
certain level as a matter of course, and that the allocation of a
vehicle was therefore a right, should have been determined
after
hearing evidence. The heads of argument submitted to the arbitrator,
and on which basis he made his ruling, clearly do not
constitute
evidence. It follows then that the arbitrator ought to have heard
what was categorised as an objection to jurisdiction
by conducting an
arbitration hearing. This is especially so since the jurisdictional
ruling sought effectively raised the substance
of the dispute i.e.
was the applicant entitled, in terms of the applicable policy or in
its application, to a subsidised vehicle.
The policy, on which the
third respondent relied in upholding the jurisdictional ruling, was
but one component of a matrix of factors
that ought to have been
considered.
[7]
The third respondent's failure to hear evidence constitutes, in my
view, a reviewable irregularity, as did the making of a
jurisdictional ruling in the absence of any evidence. In these
circumstances, the jurisdictional ruling stands to be reviewed and
set aside.
I
therefore make the following order:
1. The
ruling made by the third respondent on 28 May 2008 is
reviewed and set aside.
2. The
matter is remitted back to the GPSSBC for rehearing before another
commissioner.
3.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of Hearing: 17 June 2009
Date
of judgment: 18 June 2009
Appearances:
For
the applicant: Adv Dladla
Instructed
by: Nehawu
For
the 1
st
Respondent: Adv T Masevhe
Instructed
by: The State Attorney