About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2009
>>
[2009] ZALCD 15
|
|
IMATU and Another v SALGBC and Others (D505/06) [2009] ZALCD 15 (20 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Case No: D505/06
REPORTABLE
In
the matter between:
IMATU
First Applicant
SAMWU
Second Applicant
and
S.A.L.G.B.C
First Respondent
ETHEKWINI
MUNICIPALITY
Second Respondent
A
J RYCROFT N.O
Third Respondent
JUDGMENT-
LEAVE TO APPEAL
MOSHOANA,
AJ
INTRODUCTION
[1]
This is an application for leave to appeal against the whole judgment
of this court on 18 December 2008, in terms of which this
court
dismissed an application to review and set aside an award by the
Arbitrator. Before the application for leave could be heard,
I made
an order condoning the late filing of the application for leave.
Therefore, I say no more with regard to the application
to condone.
The application was heard on 30 April 2009.
BACKGROUND
FACTS
[2]
The Applicant and the third Respondent had a dispute about the
interpretation and application of a collective agreement. Both
parties were concerned about an interpretation and application of the
collective agreement in so far as calculation of leave days
is
concerned. The collective agreement did not make specific provision
for shift workers. In brief the applicant contended that
a proper
interpretation calls for definition of the phrase: “working
day”. According to the applicant working day should
be to the
exclusion of days on which the shift workers do not work. On the
other hand the third Respondent contended that the interpretation
leads to absurd and unfair outcome in that the shift workers would be
entitled to about 48 days leave. That contention was upheld
by the
arbitrator. In the applicant’s view the interpretation is
wrong. Such therefore suggests that the arbitrator has not
interpreted the collective agreement as tasked. This court applying
the test developed in
Bato Star
and
confirmed to be applicable in arbitration awards in
Sidumo
dismissed the application. The applicant was not satisfied with this
court’s judgment hence this application.
GROUNDS
FOR LEAVE
[3]
The applicant has presented various grounds, which, for the purposes
of this judgment are not to be repeated herein. However
central to
all is that another court may reasonably come to a conclusion that
the award is so unreasonable and reviewable. In argument
Pillemer SC
for the applicant rounded the grounds to effectively this: “
How
far off the mark should an arbitrator be to render his or her award
issued as a result of a task contemplated in Section 24
of the Labour
Relations Act unreasonable?
” It
was argued that there exists a reasonable possibility that another
court may find that if an arbitrator is wrong in his
or her
interpretation then the award is unreasonable to a point of being
reviewable as contemplated in the test developed this
far.
EVALUATION
[4]
The test in matters of this nature will always be that of a
reasonable possibility that another court may come to a different
conclusion than the one the court below has arrived at. It is not
incumbent on an applicant to demonstrate that the court hearing
the
application that it was indeed wrong. It is sufficient for an
applicant to demonstrate a reasonable possibility of another
court
coming to a different conclusion. It is not unusual for a court above
to agree with the court
aquo’s
approach but disagree with the outcome. If the court is not shown a
reasonable possibility an applicant must fail. In
casu
,
I am not convinced that another court may come to a different
conclusion in so far as the applicable test. In this court’s
view the LAC would also be bound by the test developed in Bato Star.
In dealing with the role of the court, the Honourable O’Regan
J
had the following to say:
“
In
such circumstances a court should pay due respect to the route
selected by the decision maker. This does not mean, however, that
where the decision is one which will not reasonably result in the
achievement of the goal, or which is not reasonably supported
on the
facts or not reasonable in the light of the reasons given for it, a
court may not review that decision. A court should not
rubber-stamp
an unreasonable decision simply because of the complexity of the
decision or the identity of the decision-maker”
This,
the Honourable judge echoed after having accepted that what
constitutes a reasonable decision will depend on the circumstances
of
each case.
(Administrator
,
Transvaal, and Others v Traub and Others 1989(4) SA 731 (A)).
As
factors to be considered, the following have been mentioned: nature
of the decision, the identity and expertise of the decision
maker,
the range of factors relevant to the decision, the reasons given for
the decision, the nature of the competing interests
involved and the
impact of the decision on the lives and well-being of those affected.
In recognising the important distinction
between appeal and review,
the court had the following to say:
“
Its
(court) task is to ensure that the decisions taken by administrative
agencies fall within the bounds of reasonableness as required
by the
Constitution.”
Most
importantly, the court having analysed the decision of the Chief
Director, said the Chief Director’s decision may or
may not
have been the best decision in the circumstances, but that is not for
the court to consider.
[5]
However, since interpretation is a question of law, there exists a
possibility that another court may conclude that if the
interpretation is wrong same is unreasonable. In other words, an
arbitrator tasked with an interpretation of a collective agreement,
he or she must be right in his or her interpretation. As argued, a
court of review must agree with the interpretation as being
correct.
To steal the words of the Honourable judge:
not
rubber-stamp
, even if wrong in this
instance. Should a court of review not agree, then it follows
axiomatically that the award is unreasonable.
This court still holds
a view that as held in
Engen
and confirmed in
Sidumo
,
an arbitrator must apply his own sense of fairness when considering
an unfair dismissal claim. Such should apply to an arbitrator
considering a Section 24 dispute. Similarly a court of review must be
slow to interfere with the interpretation of an arbitrator
as doing
so may amount to usurping the statutory function of an arbitrator.
This court, recognising that interpretation is an elastic
matter of
law, took a view that much as it may not like the arbitrator’s
interpretation, it is not the issue for it to consider.
However this
court finds persuasion in an argument that perhaps a slightly
different approach may apply in matters of interpretation-since
such
undeniably involves a question of law. It is on this aspect alone
that I am inclined to grant leave to appeal. In my view
this is an
important question of law to this parties and the entire labour law
community. I agree with Van Niekerk SC that the
LAC may not uphold an
interpretation that yields absurdity and unfairness. However the
issue is, if the LAC does not find such
an absurdity, can it uphold
the applicant’s contention if the arbitrator’s
interpretation is wrong. Simply put, the
LAC should decide the issue
of bounds-how far off the mark should an arbitrator be? I am also
inclined to agree with Van Niekerk
that interpretation being an
elastic process cannot be confined to one approach. An arbitrator is
allowed to apply any method of
interpretation, inclusive of a
purposive approach as approved by the Constitutional Court. This may
be so; however another court
may approve the approach but find the
results to be wrong to a point of being unreasonable. It could be so
that such threatens
the distinction between review and an appeal.
Probably in attempt to determine reasonableness that path is worth
travelling, despite
the inherent and apparent pitfalls. This should
arrest the attention of the LAC, particularly for interpretation
disputes. Like
matters of jurisdiction, which involves a question of
law, it matters not that an arbitrator finds jurisdiction where it
does not
legally exist, a court of review is bound to set aside the
outcome, even if the reasoning is beyond reproach. Can it be so that
in questions of interpretation the same applies despite it being an
elastic exercise? - Maybe not, maybe yes.
CONCLUSION
[6]
In the light of the above I come to the conclusion that the applicant
has satisfied the test in applications of this nature.
Although this
court is convinced that it was correct in its judgment, the task of
the applicant was not to show that this court
was wrong. That is the
task of the court of appeal. All the applicant had to show and had
shown is a reasonably possibility. In
the result I make the following
order:
LEAVE TO APPEAL IS HEREBY
GRANTED. COSTS TO BE COSTS OF APPEAL.
____________________________
G.
N MOSHOANA
Acting
Judge of the Labour Court
Date
of Judgment: 20 May 2009
APPEARANCES
For
the Applicant: Adv. M. Pillemer SC instructed by Shanta Reddy
Attorneys
For
Third Respondent: Adv. G.O. van Niekerk SC instructed by
Shepstone and Wylie Attorneys