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[2011] ZALCCT 32
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PAWUSA obo Skosana and Others v Public Health and Social Development Sectoral Bargaining Council and Others (C972/2009) [2011] ZALCCT 32; [2011] 11 BLLR 1079 (LC) (17 June 2011)
SHAI AJ
1
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO: C972/2009
In
the matter between:
PAWUSA
OBO PAUL SKOSANA and 3 Others
........................................
APPLICANT
and
THE
PUBLIC HEALTH AND SOCIAL
DEVELOPMENT
SECTORIAL BARGAINING
COUNCIL
.....................................................................................
FIRST
RESPONDENT
PANELIST
LUNGILE MATSHAKA N.O.
…........................
SECOND
RESPONDENT
DEPARTMENT
OF HEALT FOR THE
PROVINCE
OF WESTERN CAPE
….........................................
THIRD
RESPONDENT
THE
MEMBER OF EXECUTIVE COUNCIL
RESPONSIBLE
FOR THE DEPARTMENT OF
HEALTH
FOR THE PROVINCE OF
WESTERN
CAPE
…................................................................
FOURTH
RESPONDENT
DATE
OF HEARING : 03/03/20011
DATE
OF JUDGMENT: : 17/06/2011
JUDGMENT
___________________________________________________________________
SHAI
AJ
Introduction
[1]
This is an application by which the applicant seeks to review and set
aside the arbitration award, the “award” issued
by the
second respondent, the “arbitrator”, dated 14 October
2009, under case number PSHS447-08/09 issued under the
auspices of
the first respondent. The applicant further seeks to have the
decision of the arbitrator that the third respondent
had correctly
interpreted and applied the provisions of a collective agreement
being the Occupational Specific Dispensation, which
consisted of
Resolution 3 read with
Nursing Act No 33 of 2005
, Circular H123 of
November 2007, in respect of Mr. P Skosana, Mrs. G Jeftha, Mrs. Louw
and Mrs V Makie ‘the member’
be substituted with the one
that says the second respondent has failed to correctly interpret and
applied the aforesaid collective
agreement in respect of the
members.
The
facts
[2]
On or about 21 August 2009, the applicant referred a dispute to the
first respondent on behalf of members. The nature of this
dispute was
categorised as an interpretation and /or application of a collective
agreement dispute.
[3]
This dispute relates to the application and interpretation of the
Occupation Specific Dispensation of Nurses, which consisted
of
Resolution No 3 of 2007 of the Public Health and Social Development
Bargaining Council as read with the
Nursing Act No 33 of 2005
,
Circular H123 of November 2007, Circular H129 of November 2007,
Circular H63 of June 2008 and Circular H97 of August 2008.
[4]
The primary objectives of Resolution 3 included inter alia:
[4.1]
To introduce an occupational specific remuneration and career
progression system for professional nurses, staff nurses and
nursing
assists, who fall within the registered scope of the First Respondent
and
[4.2]
To introduce differentiated salary scales for identified categories
of nursing professionals based on a new remuneration structure.
[5]
Resolution 3.1.3.1 makes provisions for a differentiation in salary
scales in professional nurse categories of general nursing,
speciality nursing / primary health care, specialist nurse
practitioner and nursing educator.
[6]
Resolution 3.2.5.2 sets out the two phases in which the transition
would be done:
[6.1]
Phase 1 being the minimum translation to the appropriate salary scale
attached to the post as contained in annexure “B”
to the
agreement, and;
[6.2]
Phase 2 in respect of production levels / grade which involves:
“
The
re-calculation of relevant experience obtained by a person who
occupies a post on a production level after registration in the
relevant nursing category, based on four years service as of 31 March
2007, in order to a higher salary at a production level subject
to
and within the limits of the measure for such recognition contained
in Annexure C.”
[7]
Circular H123/2007 provides amongst others that:
[7.1]
The OSD is not a tool to rectify malpractices and current and past
misulitisation of nursing staff, nor is it a general salary
increase
for nurses. It is a specific occupational dispensation which provides
for higher salaries and more diverse career opportunities
for nursing
staff, subject to specific provisions and criteria.
[7.2]
Certain posts have been identified as non-nursing posts, annexure “A”
containing a list of “nursing”
and “non-nursing”
posts, 2.6.1.
[7.3]
In terms of annexure “A” the post of nursing,
Administration: Personnel Matrons at ‘hospitals’ in
general is categorised as non-nursing posts.
[7.4]
The affected professional nurses who occupy non-nursing in terms of
annexure “A”, were given the option to either
remain in
their current posts in which case they will forfeit the option to
participate in the OSD for nurses, or decide on an
option for
participation in the OSD for nurses.
[8]
The option for participation in the OSD for nurses will be for
relocation to a production or management level post on a similar
salary scale in one of the nursing career streams, provided that the
employee complies with the applicable educational qualifications
and
appropriate experience as required for such jobs / posts on a similar
salary scale in one of the nursing career streams could
be determined
and calculated based on the appropriateness of experience in the
previous non-nursing posts.
That
should the affected nurses have occupied a non-nursing management
post, and not a production level post the principles and
measures for
restructuring as indicated in the HR Restructuring Framework for the
CSP will be applied for the matching and placement
of said incumbent.
A list of vacant and funded post will be submitted to the affected
nurse to indicate her/his preference for
placement in accordance with
the appropriate experience, skills and competencies of such affected
nurse as well as the requirements
for the vacant management post.
[9]
The applicant’s referral document indicated that the dispute
arose on 24 September 2008, as this was the date on which
the members
were advised that their grievance had not been resolved by the third
respondent to their satisfaction.
[10]
The dispute was set down on the 8 April 2009. The dispute was
dismissed for non-attendance by the members’ representative.
The said dismissal was rescinded and the dispute was re-scheduled on
the 21 September 2009 before the second respondent.
[11]
The applicant contends that at the commencement of the arbitration
proceedings Mr. F Rodriquez, the third respondent’s
representative requested a postponement on the third respondent’s
behalf because they were not prepared for the arbitration
which
applicant’s representative objected as the third respondent had
enough time to prepare.
[12]
In response to the objection, Mr. Rodriquez indicated that:
[12.1]
The facts in respect of the matter were not in dispute.
[12.2]
The third respondent would be withdrawing their witnesses.
[12.3]
The Third respondent would only argue legal principles applicable to
the collective agreement.
[12.4]
There should not be any oral argument as this would be a waste of
time as “we would just be going backwards and forwards”.
The parties should argue the matter on paper and submit heads of
arguments.
[13]
The applicant contends further that members caucused during
adjournment that although they would agree to postponement there
were
a number of issues in dispute and it was not correct that there were
no issues in dispute.
[14]
The applicant further contends that when the proceedings
re-commenced, the applicant’s representative, Faraah September,
indicated to the arbitrator, that applicant would consent to
postponement but that Rodriguez and the third respondent were
incorrect
when they indicated that there were no facts in disputes.
[15]
The said facts in dispute were the following according to the
applicant:
[15.1]
Whether there were managerial level vacant funded posts at the Groote
Schuur Hospital, or elsewhere, which the members were
qualified to
fill and which the members should have been aligned to at the time
when the Occupational Specific Dispensation was
applied in request of
them.
[15.2]
Whether managerial level funded posts became vacant at the Groote
Schuur Hospital, or elsewhere, which members were qualified
to fill,
after the date on which the members were aligned to production level
posts, and which the members should have been aligned
subsequently.
[15.3]
Whether or not the third respondent had submitted, alternatively, was
required to submit, a list of vacant funded posts to
the members so
that they would indicate their preference for placement in those
vacant funded posts.
[15.4]
Whether or not Thorpe, as a Head at District / Institutional offices
had submitted to the Directorate Nursing services, for
attention of
Tendani Mabuda, a complete lists of all the Professional Nurses who
opted to Participate in the Occupational Specific
Dispensation for
Nurses, indicating their current rank, category and workstation /
area, vacant posts at the Groote Shcuur Hospital
where members could
absorbed were possible and Professional Nurses who opted to remain in
their current Occupational Specific Dispensation
posts.
[15.5]
Whether or not the posts of personnel Matron existed at Groote Schuur
Hospital and whether or not the members were employed
as personnel
Matrons.
[16]
The applicant further contends that the arbitrator did not give
applicant the opportunity to inform him that the above facts
were in
dispute and why they were material to the resolution of the dispute.
[17]
In response to the applicant’s attempt to do as in paragraph 11
above the arbitrator allegedly respondent as follows:
“
Faraah
September, the employer says that there are no facts in dispute. If
the employer says there are no facts in dispute then
there are no
facts in dispute.”
[18]
The applicant further contends that at that stage Rodriquez
interjected and stated that the parties should agree on a time
table
for the exchange of documents and heads of argument.
[19]
The applicant contends that such a time table was agreed upon and was
as follows”
“
40.1
28 September 2009 – submission of the applicant’s
documents and heads of argument to the respondents;
40.2
1 October 2009 – submission of the third respondent’s
documents and heads of argument to the applicant as well
as the first
and second respondent; and
40.3
5 October 2009 – final submission by the applicant to the first
and second respondent”
[20]
The applicant contends further that at the time the agreement was
reached the applicant’s representative had an express
understanding that after the exchange of documents there will be a
set down for hearing for oral evidence.
[21]
It is further contention by the applicant that when its
representative asked the arbitrator whether there was going to be a
next hearing the arbitrator did not respond but indicated that he had
fourteen days to issue the award. Had the applicant’s
representative knew that there was not going to be a next hearing he
would not have agreed to the timetable and would have insisted
that
oral evidence be heard first to be followed by the said exchange of
the documents.
[22]
On the other hand the respondent contents that the parties agreed
that there were no facts in dispute and as a result the matter
could
be disposed off by way of arguments. Following the agreement parties
agreed to the timetable of exchange of documents as
outline in
paragraph 19 above.
[23]
In relation to time table referred to above, the applicant delivered
its bundle of documents and heads of argument to the respondent
on or
about 28 September 2009 to which the Respondent did not respond to.
The applicant,
after a
number of communications with the respondent regarding failure to
comply with the agreement in paragraph 1(a) above,
the
applicant filed its final submission on the 5
th
October 2009 and served only the
first and second respondents as per the said agreement.
[24]
The respondent contends that the agreement was reached at the
arbitration that there were no facts in dispute and that the
arbitration should be conducted based on the submission of head of
arguments by the parties to the second respondent. Further that
the
agreement was to the effect that the applicant would submit its heads
of argument to the second respondent and third respondent,
since the
onus was on the applicant to prove it’s case while the third
respondent would submit its heads of argument to the
second
respondent. The respondent contends further that there was no
discussion or agreement that the applicant would have the
right to
reply to the third respondent’s heads or argument, given that
this does not constitute part of the stipulated legal
rules,
procedure and practice. It is contested further on behalf of the
respondent that there was also no agreement to exchange
bundles but
that such bundle would be annexed to the heads of arguments in the
form of the third respondent’s heads of argument.
Grounds
of review
[25]
The applicant raises the following complaints against the award of
the arbitrator:
[25.1]
The arbitrator committed a misconduct in relation to his duties as an
arbitrator by failing to conduct proceedings in a fair
manner, in
that he did not allow a full and proper ventilation of all the facts
and issues in dispute as raised by both parties.
[25.2]
The arbitrator committed a material error of law by not allowing
proper evidence to be placed before him for consideration.
The heads
of argument and bundles of documents, in the absence of oral
evidence, does not constitute proper evidence when there
is no
agreement between the parties that the facts are common cause.
[25.3]
The arbitrator committed a misconduct by disregarding relevant
evidence, alternatively misconstruing submissions, documents
and
evidence before him to such an extent that he misconstrued the
dispute.
[25.4]
The arbitrator committed a misconduct be reaching a conclusion which
was not supported by any submissions or “evidence”.
The
conclusion that he reached that there were no factual issues in
dispute and that he could make an award in respect of this
dispute
without hearing evidence basis solely on documents and closing
arguments, alternatively, heads of arguments being submitted,
was not
supported by any submission and / or evidence before him.
[25.5]
The arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings by not allowing the Applicant’s
case to
be fully and fairly determined and thereby failing to comply with the
principles of natural justice, particularly, no principle
of
audi
ulteram patem.
[24.6]
That the arbitrator committed gross irregularity in the conduct of
the arbitration proceedings in that his reasoning was
so flawed that
one must conclude that there had not been a fair trial of the issue.
[24.7]
That the arbitrator committed a gross irregularity in the conduct of
the arbitration proceedings in that the proceedings
were so irregular
that there was no proper hearing then undermining the integrity of
the proceedings in that arbitration is required
to hear and consider
oral evidence save for when the parties agree that the facts are
common dispute.
[25.8]
The arbitrator committed a gross irregularity in the conduct of the
arbitration proceedings in that he displayed deference
in the third
respondent’s submissions and / or evidence and improperly
rejected the applicant’s submissions and / or
evidence.
[25.9]
The arbitrator exceeded his powers and / or made a decision that nor
reasonable decision maker could have made, when he decided
that the
third Respondent had correctly interpreted and applied the said
collective agreement, as this decision was not rational
or
justifiable in terms of the reasons given for it and the evidence
properly before him.
[25.10]
The arbitrator exceeded his powers and / or made a decision that a
reasonable decision maker could not have made, was not
rational,
justifiable in terms of reasons given for it and the evidence
properly before him, when he decided not to allow, alternatively,
call for, the hearing of oral evidence, either at the arbitration
proceedings on 21 September 2009 or subsequent to receiving the
applicant’s heads of arguments and final submissions on or
about the 28 September 2009 and 5 October 2009 respectively, to
determine various material disputes of facts including but not
limited to facts in dispute as outlined in paragraph 1(b) above.
[25.11]
The arbitrator exceeded his powers and / or made a decision that a
reasonable decision maker could not have made when he
decided that
the third respondent had correctly interpreted and applied the
collective agreement when none of the required lists
were submitted
to either the members or to Mabuda. This decision was not rational
and / or justifiable in terms of the submissions,
documents and
evidence before him.
[25.12]
The applicant added three more grounds of review through the
supplementary affidavit of Faraah September and they are as
follows:
[25.12.1]
Failure to keep a record of all the evidence given in an arbitration
hearing, including all documents handed in to the
panellist during
the hearing;
[25.12.2]
The failure by the first and / or second respondent to keep a record
of the oral proceedings of the arbitration in that
he failed to keep
a record of the oral proceedings of the arbitration on 21 September
2009 by either legible hand written notes,
electronic notes or by
means of a mechanical, magnetic or electronic recording of sound, and
[25.12.3]
It was apparent from the heads of argument / closing submissions
delivered by the parties that there were material disputes
of facts
between the parties. That the facts material to the dispute were not
common cause and that the second respondent was required
to hear oral
evidence in order to resolve these disputes of fact.
Application
for condonation
[26]
The third respondent’s answering affidavit was late by 17 days.
The reason for lateness was because the instructing attorney,
Pamela
Melapi went on maternity leave on 7 April 2010. Thereafter, one
Shireen Karjiker a fellow state attorney, assumed responsibility
for
Melapi’s files. Again at a meeting held on the 23
rd
April 2010, a decision was taken that one Colleen Bailey, would
assume responsibility for Melapi’s files. It was only when
she
saw the letter from the applicant’s attorney on 19 May 2010
requesting for an agreement that the matter be referred back
for
arbitration that she attended to the file.
[27]
She then briefed counsel to draft answering affidavit. It appears
that both Bailey and counsel did not have all papers, in
particular
annexures FS2 to FS9 as they were not annexed to the review
application. The heads of arguments were also not in the
state
attorney’s file and not in counsel’s brief.
[28]
The third respondent requested the applicant to furnish the said
document to no avail and as a last resort, Bailey attended
to the
Labour Court and uplifted the court file and made the relevant copies
and made them available to the counsel. The respondents
contends that
due to the complexity and the voluminous nature of the affidavits and
documents in the proceedings, it took time
to comply with relevant
time frames.
[29]
The third respondent contents further that the applicant do not enjoy
good prospects of success in having the arbitration award
reviewed as
is evident from the answer to the grounds of review.
[30]
The third respondent content further that the case is important to
the third and fourth respondent because it is a precedent
setting
case which, if the application for condonation is rejected by this
Honourable Court, will have major financial and budgetary
implications. Further that, it will also undermine the restructuring
process the nursing sector that is undergoing on a national
level.
[31]
This application is vigorously opposed by the applicant. The basis of
the opposition appears to be that the respondent having
failed to
deliver on time was requested on a number of occasions to comply but
in vain. The complication appears to have occasioned
by the fact some
annexures were not attached to the answering affidavit and that some
documents were not properly copied and caused
further delay in the
delivery of the replying affidavit.
[32]
The law relating to condonation of non compliance with the rules has
been laid down in a number of court decisions. In
Melane
v Santam Insurance Co Ltd,
1
laid
down the law as follows:
“
In
deciding whether sufficient cause has been shown, the basic principle
is that the Court have a discretion, to be exercised judicially
upon
a consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefore, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decirise, for that would be
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
pint in granting condonation.”
2
[33]
In the case of
Kritzinger
v CCMA and Others,
3
.
Molahlehi
J said the following in relation to test as initiated in
Melane
v Sanlam Co Ltd:
“
These
factors are not individually decisive but are interrelated and must
be weighed against each other. In weighing the factors
for instance a
good explanation for the lateness may assist the applicant in
compensation for week prospects of success. Similarly
strong
prospects of success may compensate for the inadequate explanation
and the long delay
.”
4
[34]
In the case of
Siegelaar
v Minister of Safety and Security
,
5
Murphy
AJ
in
dealing with the test for condonation said the following:
“
In
other words, in determining whether the delay in bringing the
proceedings is unreasonable the Court is obliged to exercise a
judicial discretion taking into account all the relevant
circumstances. Guidance can also be sought from cases dealing with
applications
for condonation for special leave to appeal. In
Brummer
v Gorfil Brothers Investments Pty Ltd and Others
[2000] ZACC 3
;
2000
(2) SA 837(CC)
the Constitutional Court Stated:
‘
This
court has held that an application for leave to appeal will be
granted if it is in the interest of justice to do so and that
the
existence of prospects of success, though an important consideration
in deciding whether to grant leave to appeal, is not the
only factor
in the determination of the interest of justice. It is appropriate
that an application for condonation be considered
on the same basis
and that such an application should be granted if that is in the
interest of justice and refused if it is not.
The interest of justice
must be determined by reference to all relevant factors, including
the nature of the relief sought, the
extent and cause of the delay,
the nature and cause of any other defect in respect of which
condonation is brought, the effect
on the administration of justice,
prejudice and reasonableness of the applicant’s explanation of
the delay or effect.”’
6
The
court went further and said:
“
In
other words, the interests of justice are central consideration in
deciding whether to grant condonation for unexplained delay.
So too
is the observance of the appropriate standards in the administration
of justice. Applications for condonation must be properly
made in the
appropriate manner in order to ensure they can be effectively
adjudicated.”
7
[35]
In this instance of this case the delay is not very long and the
reasons for the delay are reasonable taking into account change
in
personnel dealing with the matter and the fact that some documents
were attached to the notice of motion. I have taken into
account also
that delivery by both parties of their papers was less than perfect
and parties took time communicating with each
other with the purpose
of obtaining unattached annexures. Further that I have taken into
account that the documentation herein
is voluminous and the nature of
the dispute quite complex. The case is very important in that it may
create a precedent and would
be in the interest of Justice that the
merits be heard. In the premises, I conclude that the respondent has
made a good case for
condonation and hence the late filing of the
answering affidavit is condoned.
Application
for review
The
legal position
.
[36]
The law is now settled with regards to the test for review as
enunciated in the well known case of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
8
being:
“whether the decision reached by the commissioner is one that a
reasonable decision maker could not reach”.
[37]
In
Sidumo
Ncgobo J was of the opinion that although the
provisions of
Section 145
of the LRA have been suffused by the
Constitutional standard, that of a reasonable decision maker, when a
litigant who wishes to
challenge the arbitration award under
Section
145(2)
must found his or her cause of action on one or more of these
grounds of review and said the following:
“
The
general powers of review of the Labour Court under
Section 158(1)(g)
are therefore subject to the provisions of
Section 145(2)
which
prescribe grounds upon which arbitral awards of CCMA Commissioners
may be reviewed. These grounds are misconduct by the Commissioner
in
relation to his or her duties; gross irregularity in the conduct of
the proceedings; where Commissioner exceeds his or her powers;
or
where the award was improperly obtained. These are the only grounds
upon which arbitral awards of CCMA Commissioners may be
reviewed by
the Labour Court under
Section 145(2)
of the LRA. It follows
therefore that a litigant who wishes to challenge an arbitral award
under
Section 145(2)
must found his or her cause of action on one or
more of these grounds of revie
w”
9
[38]
In
Southern
Sun Hotel Intererests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others,
10
the
Court acknowledged the test for review of Commissioner’s award
as enunciated in the
Sidumo
decision
(reasonable decision maker test) but said:
“…
.
Section 145
of the Act clearly invites a scrutiny of the process by
which the result of an arbitration proceedings was achieved, and a
right
to intervene if the Commissioner’s process related to
conduct is found wanting. Of course, reasonableness is not irrelevant
to this inquiry – the reasonableness requirement is relevant to
both process and outcome.
”
11
[39]
The applicant raised 14 grounds of review in its papers and for
convenience will be categorised as follows:
39.1
Grounds 25.5, 25.6, 25.10.
These
grounds are closely related and will be dealt together. The crux of
these grounds of review is that the arbitrator committed
an
irregularity in the conduct of the proceedings in that he displayed
deference to the third respondent when he rejected the applicant’s
submission that there were factual issues in dispute, to the extent
that she was not allowed to explain what the factual issues
were in
dispute.
39.2
The applicant in its papers allege that the respondent’s
representative, Rodriquez requested a postponement of the arbitration
because he was unprepared. Further that, he had indicated that there
were no facts in dispute, that the matter could be argued
on the
legal principles applicable to the collective agreement and that the
matter would be argued on papers only.
39.3
Applicant further argues that its representative, September had
indicated that although she agrees to the postponement of the
proceedings she denied that there were no facts in dispute.
39.4
The arbitrator allegedly refused to allow September to inform him of
which facts were in dispute and uttered the following
words:
“
If
the employer says that there are no facts in dispute then there are
no facts in dispute.”
39.5
It is the Applicant’s argument that even though September
agreed on a timetable for the exchange of heads of argument,
it was
her understanding all along that the heads of argument were merely a
summary of the case and that oral evidence would be
led at a later
stage.
39.6
The respondent responded as follows:
39.6.1
That
the third and fourth respondent deny that Rodriquez requested a
postponement because he was unprepared. Such a reason for a
postponement is extremely improbable because Rodriquez who is a full
time employee and would not give such a reason.
39.6.2
That the third and fourth respondent deny that the second respondent
refused to allow September to inform him of which facts
were in
dispute and that there were facts in dispute in that:
-
It is improbable that a commissioner would have denied a party the
right to state her or his case or to take submissions in such
a
flagrant manner.
-
September, as a reasoned trade unionist consist who has extensive
experience of representing employees in conflictual situations,
would
not have allowed such blatant suppression by the second respondent.
It is improbable given her allegation, that there were
dispute of
facts; she would have reached an agreement on a time table for heads
of argument in circumstances where she alleges
what she was silenced.
39.6.3
The third and fourth respondents deny that September understood all
along that the heads of argument were merely a summary
of the case
and that oral evidence would be led at a later stage because
September is a seasoned unionist and familiar with arbitration
proceedings; and that if she was clueless on the rules he would not
have been sent to represent members, for to do so would amount
to
negligence in the extreme.
39.6.4
September, in contradiction of the above allegation in her heads of
argument pray for relief of a written apology from GSH
Nursing and HR
Management depending on the outcome of the award.
39.6.5
Further that the third and fourth respondent contention finds support
in the arbitrator’s award where she says “it
is a
deliberate untruth and misleading for the applicant’s
representation to say that the respondent requested postponement
due
to the fact that they were unprepared” and further that he said
“I accepted the proposal as understood and agreed
upon by both
parties.”
[40]
The determination of this point would be made difficult by the fact
that the said agreement was not reduced to writing nor
recorded in
any manner. However, the final submissions dated the 5 October 2009
and contained at page 58 to 59 (“F54”)
gives a clear
state of mind of Faraah September, the applicant’s
representative, at the time of the said proceedings and
probably
until the time the award was issued, contrary to her vehement denial
that there was agreement that the dispute could be
disposed of on
papers only. I say so because at the end of the said submissions
Faraah September says the following words “we
await your
award”. Faraah September would not have said the said words if
all along she was of the view that after submission
there would still
be a hearing. Instead she would have ended by saying “we are
awaiting a date of hearing” or something
to that effect. Taking
this and the other factors state above that she is a seasoned
unionist, and the fact that she agreed to
the time table for
submissions etc. I have safely come to the conclusion that the
parties concluded an agreement that there were
no facts in dispute
and that the matter could be disposed of by way of written arguments
and therefore find no irregularities on
the part of the arbitrator in
this regard.
Grounds
25.1, 25.2, 25.4, 25.10.
[41]
The above grounds are related to each other and will be dealt with
together and can be summarised as follows:
-
that arbitrator committed a misconduct in relations to his duties as
an arbitrator in conducting the proceedings based on heads
of
arguments and bundles of document on the basis that:
-
There were too many material dispute of facts and therefore;
-
He should have requested that oral evidence should be heard.
[42]
The third and fourth respondent’s response to the applicant’s
submissions in this regard is that there was an agreement
that the
dispute should be resolved on paper and that in any event those
factual dispute were capable of being resolved on papers
or were not
material to the dispute.
[43]
I have concluded above that on the balance of probabilities the
parties agreed that there dispute would be resolved on papers
for
reasons state there. The remaining issue in this regard is whether
the said facts are material and whether they were capable
of being
resolved on papers only.
[44]
The said facts in dispute are stated by the Applicant’s as
follows:
-
Whether there were managerial level vacant funded posts at Groote
Schuur Hospital. The third respondent had denied that there
were such
vacancies and therefore the applicants were aligned to production
level posts. Thus if there had been such posts, the
applicants would
have been aligned to these posts.
-
Whether such managerial level funded posts had become vacant after
the date the applicants had been aligned to production level
posts
and which they should have been subsequently aligned.
-
Whether or not the third respondent had submitted, alternatively, was
required to submit, a list of vacant funded post to the
applicant’s
so that they could indicate a preference for placement in there
vacant funded posts.
-
Whether or not Thorpe had submitted a complete list of all the
professional nurses who opted to participate in the OSD with other
particulars’ to Mabuda, and whether she was required to do so,
since the applicants had not received a copy of such a list.
-
Whether or not the post of personnel Matron existed at Groote Schuur
Hospital and whether or not the applicants were employed
as matrons.
[45]
It is trite in our law that the disputes of fact are resolved through
evidence. The trier of facts has to rely on assessment
of the
evidence and make credibility findings in respect of witnesses. In
our law that is how the truth is established. On this
point the court
in the case of
Stellenbosch
Farmers Winery Group Ltd and Another v Martel ET CIE and Others
12
held
that:
“
to come
to a conclusion of disputed issues a court must make findings on: (a)
the credibility of various factual witnesses; (b)
their reliability,
and (c) the probabilities. As to (a) the court’s findings to
the reliability of a particular witness will
depend on its
impressions on a variety of subsidiary factors, not necessarily in
order of importance, such as (i) the witness contour
and demeanour in
the witness-box; (ii) his bias, latent and gallant, (iii) internal
contradictions in his evidence, (iv) external
contradictions with
what was pleaded or put on his behalf, (v) the probability or
improbability of particular aspects of its version,
(vi) the calibre
and cogency of his performance compared to that of other witnesses
reliability will depend from the other facts
mentioned under (a)
(ii), (vi) and (v) above.”
13
[46]
The third and fourth respondents submitted that it was irrelevant to
the findings and decisions made by the arbitrator whether
or not
there were vacant funded managerial posts before or after the
member’s alignment on 1 July 2007 because the arbitrator
upheld
the third respondent version that because the post of Personnel
Matron was not a managerial post, they could only be aligned
to
production posts. third and fourth respondent submitted further that
even though the arbitrator noted that there was a dispute
concerning
the existence of such vacant managerial funded posts, such dispute
was not relevant to the decision that the members
were correctly
aligned at a production and not management level in terms of
Resolution 3 of 2007. The logical conclusion of this
is that even if
it was to be found that there were management funded posts, the
members could not have been aligned into such posts.
[47]
It is suggested that the above facts in dispute were apparent in
papers and whether such facts were material or could be disposed
of
on papers is another matter. The crux of this question is whether the
position of personnel matron was a management position
or not. Once
this is determined all the other facts would easily be determined. It
is common between parties, and as is clear from
the documents that
the occupation of these positions by members did not result in
monetary benefit or promotion from one level
to another. The members
were Chief Professionals Nurses when they occupied the position of
Personnel Matrons and remained so even
after occupation of such
positions. It is also common between parties that although the
members remained Chief Professional nurses,
which move resulted in
the enhancement of their status in that they now assisted the nursing
manager in execution of his / her
duties albeit after hours. It is
clear from the papers that this did not translate into officially
occupying a managerial position
as such. It appears that this were an
internal arrangement to easy the load of the nursing manager.
[48]
However, I must comment on the anomaly that I think the department
occasioned by allowing Groote Schuur to create an anomaly
of this
nature. I say so because the third respondent in its papers contends
that the position of personnel Matron was declared
a non-nursing post
while on the other hand it contents that they did not occupy a
nursing management position. This I think created
expectation on the
side of the members. However the fact that the Respondent created
this anomaly does not mean that the members
are entitled to a
management position. The fact that the deployment did not result in
monetary improvement and their designation
did not change thereafter;
clearly indicate that it was a deployment meant to assist the Nursing
Manager after hours and therefore
not a promotion into a substantive
management position.
[49]
The arbitrator in his award accepted that the members were not
occupying non-nursing management post but a production level
post and
rightly so because this was based on their actual official position
of Chief Professional Nurse, which they were at all
times. In this
regard I find no fault with the arbitrator’s conclusion.
[50]
Once I accept that the commissioner’s conclusion is correct as
mentioned above it follows that all the facts in dispute
are
irrelevant for the purpose of deciding whether the third respondent
currently interpreted and applied resolution 3 of 2007.
Had he found
contrary to this then it will follow that other disputes would become
relevant and evidence would be necessary to
determine whether such
positions were available or not. Since this is not the case I found
that they would not be relevant to a
finding whether the third
respondent had correctly interpreted and applied to Resolution 3 to
the members.
[51]
In a supplementary affidavit applicant raised the following three
more grounds of review. The first two will be dealt together
and they
amount to a complaint that the arbitrator failed to keep the record
of the proceedings including all documents handed
in at the hearing:
[51.1]
The general approach in our law has been to require a record to
enable the Court to exercise its review function without
any
hindrance.
14
[51.2]
However, there are exception to the above rule in that the Court may
consider the review even in the absence of the record
when it has
been shown that the parties are unable to reconstruct the record. In
such instance the Court may determine the review
application on the
evidence that was before the arbitrator including also on basis of
the arbitration award. See in this regard
Nathaniel v Northen
Cleaners Kya Sands (Pty) Ltd & Others (2004) 25 ILJ 1250 LAC ;
JDG Trading Pty Ltd t/a Russels v Whitcher
N.O. and Others
[2001]
3 BLLR LAC. In this instant parties agreed that the dispute should be
determined on papers and agreed on the time table of
delivery of
documents. The arbitrator should have recorded this but did not do
so. Even if he recorded he would have recorded that
the parties
agreed as aforesaid and no more than that. It is not difficult to
arrive at what the parties agreed upon from the papers.
Even if it
can be said that an irregularity has occurred such irregularity is
not material to the extent of vitiating the proceedings.
It is
therefore my determination that commissioner committed no reviewable
irregularity.
[51.4]
The final attack on the arbitrator’s award namely that it was
apparent from the submissions that there are facts in
dispute and
therefore the arbitrator should have called for oral evidence has
been dealt with together with above. In brief, even
though such facts
in dispute existed they were not material to a finding of whether the
Third Respondent correctly interpreted
and applied Resolution 3 of
2007 to the members.
[52]
Can it be said that the arbitrator reached a conclusion a reasonable
decision maker could not reach? I do not think so.
[53]
In the circumstances my order is as follows:
[1]
The application for the review and setting aside of the award issued
by the arbitrator under case no PSHS447 is dismissed.
[2]
Applicant to pay the costs.
SHAI,
AJ
FOR
THE APPLICANT:
ADV. Graham Leslie
Instructed
by Bowman Gilfillan
FOR
THE RESPONDENT:
ADV. R Nyman, State Attorney
1
1962
(4) SA 531
(A)
2
Id
at p 532 C - D
3
JR2254/05
/
[2007] ZALC 85
(9 November 2007)
4
Id
at para 11
5
[2005]
26 ILJ 133 (LC)
6
Id
at para 35
7
Id
at para 36
8
2008
(2) SA 24
CC
9
Id
at para 189
10
(2010)
31 ILJ 452(LC)
11
Id
at para 14
12
3003
(1) SA 11 (SCA).
13
Id
at para 5.
14
See
UEE Dantex Explosives (Pty) Ltd v Maseko and Others
(2001) 22
ILJ 1905 (LC) at 21