About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2011
>>
[2011] ZALCD 10
|
|
Lovemore Bros Transport (Pty) Ltd v National Bargaining Council for the Road Freight Industry and Others (D543/08) [2011] ZALCD 10 (20 June 2011)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN DURBAN)
CASE
NO: D543/08
In
the matter between:
LOVEMORE
BROS TRANSPORT (PTY) LTD
….........
Applicant
and
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
…..............
First
Respondent
MOKSHA
NAIDOO
….................................
Second
Respondent
LOUIS
KOEN
…..............................................
Third
Respondent
JUDGEMENT
__________________________________________________
LALLIE
AJ:
Introduction
[1]
The applicant applied in terms of Section 145 of the Labour Relations
Act 66 0f 1995 (the LRA) to review and set aside an arbitration
award
issued by the second respondent (arbitrator) under the
auspices of the first respondent on 13 June 2008.
[2]
The applicant applied for the condonation of the late filing of its
supplementary affidavit. The application was not opposed
by the third
respondent. It was granted because the applicant furnished good
reasons for the delay.
The background facts
[3]
The third respondent was employed by the applicant. After he was
involved in a motor vehicle collision he was charged with damage
to
property, reeking of alcohol at work and damage to a third party’s
private property in Bamboo Lane. A disciplinary enquiry
was scheduled
for 3 March 2008. He failed to attend it and it was held in his
absence and he was dismissed.
[4]
He referred an unfair dismissal dispute to the first respondent. A
conciliation was scheduled for 23 April 2008 before commissioner
Zwane (Zwane). Both parties failed to attend the conciliation and
Zwane issue an outcome certificate and a dismissal ruling. In
the
dismissal ruling which is a standard form it is stated that the
conciliation/arbitration was dismissed in terms of section
138(5)(a)
of the LRA or Rule 13 and 30 of the NBCRFI interim dispute resolution
procedures for the parties’ failure to attend.
[5]
The dispute was referred to arbitration and it was arbitrated by the
second respondent on 13 June 2008. It is the arbitration
award which
was issued at the end of the arbitration that forms the basis of this
application.
Arbitration
award and grounds for review
[6]
The main attack on the arbitration award is that the second
respondent ought to have adjourned the arbitration in order to give
the applicant an opportunity to call witnesses because its
representative lacked knowledge of the arbitration process.
[7]
Another ground the applicant sought to rely on was that the
arbitrator failed in his duty to ensure that the dispute before
him
was properly ventilated in accordance with rules of natural justice
and committed misconduct by allowing an unrepresented (the
applicant
was referring to legal representation) party to present its case
where it was patently obvious that such party was not
aware of the
arbitration process and needed to lead oral evidence.
[8]
It was argued on behalf of the applicant that the arbitrator had no
jurisdiction to arbitrate the dispute as the matter had
been
dismissed by Zwane on 23 April 2008 and his failure to apply his mind
to what transpired at the conciliation rendered his
award reviewable.
[9]
With regard to the first and second grounds for review the arbitrator
made the following comment in the arbitration award.
“
Waller
was the only person to testify on behalf of the respondent and her
testimony is set out hereunder:
Waller
testified that she would be reading from the minutes of the
applicant’s disciplinary enquiry but that she did not attend
the said enquiry nor was she a witness to any event that allegedly
establishes the applicant’s guilt in the above mentioned
charges.
I
did inform Waller that it would be difficult for me to accept such
evidence if there is no valid reason as to why the authors
of the
statements were not here to testify themselves. Waller informed me
that she understood my concern but carried on with her
case”
[10]
After rejecting the evidence of the applicant’s only witness on
the grounds that it was hearsay evidence which could
not be tested
and subjected to the rules of natural justice the arbitrator
concluded that the third respondent’s dismissal
was both
substantively and procedurally unfair and reinstated him.
Test
for review
[11]
The grounds upon which an award is reviewable in terms of Section
145(2)(a) of the LRA are as follows:
‘
that
the commissioner –
(i)
committed misconduct in relation to the duties of the commissioner as
arbitrator;
(ii)
committed a gross irregularity in the conduct of the arbitration
proceedings; or exceeded the commissioner’s powers;
…..”
[12]
The test for review as enunciated by the
Constitutional Court in
Sidumo &
another v Rustenburg Platinum Mines & others
[2007]
12 BLLR 1097
(CC) as follows:
“
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?”
[13]
In
Relyant Retail Limited t/a Bears Furnitures v Commission for
Conciliation, Mediation and Arbitration & others
reported in
[2009] JOL 24327
(LC) the Labour Court found its function in
considering whether or not to interfere with the arbitration award on
review limited
to those grounds provided for in term of section 145
of the LRA, as suffused by the constitutional standard of
reasonableness.
The reasonableness standard entails the applicant
having to show that the decision reached by the arbitrator under the
statutory
arbitration system is one which a reasonable decision-maker
could not reach.
[14]
In
Edcon Ltd v Pillemer NO & others
[2011] BLLR 1
(SCA)
after referring to
Sidomo
(
supra
) the SCA held as
follows:
“
It
is inevitable that courts, in determining the reasonableness of an
award, have to make a value judgment as to whether a commissioner’s
conclusion is rationally connected to his/her reasons taking account
of the material before him/her. That this is the correct approach
has
been stated on a number of occasions by the LAC, this Court in the
Sidumo matter as well as the Constitutional Court in the
same
matter.”
[15]
In determining this review application, I have therefore to consider
whether the second respondent’s conclusion is rationally
connected to his reasons taking into account the material before him.
Evaluation
[16]
In the main grounds for review the applicant alleges that a
reasonable decision-maker would have adjourned the proceedings
in
order to allow the applicant who was unrepresented to call witnesses
in support of the evidence which it presented through documentation
only. It was also submitted that the arbitrator failed in his duties
by not guiding the applicant’s representative.
[17]
The arbitration award paints a totally different picture. It is clear
from the arbitration award that after Waller who was
both a
representative and the only witness for the applicant testified that
she would be reading from the minutes of the third
respondent’s
disciplinary enquiry minutes and that she was not present at this
disciplinary enquiry. She also did not witness
any event which would
establish the third respondent’s guilt in any of the charges.
The second respondent told her that it
would be difficult for him to
accept her evidence in the absence of the authors of the statements
without valid reason. Waller
informed the second respondent that she
understood his concern and took a decision to continue giving
evidence. The applicant is
bound by the decision of its own
representative particularly because she was warned of the
consequences of not calling the authors
of the statements she sought
to rely on at the arbitration. The arbitrator performed his duty of
guiding Waller in that she took
an informed decision having been
advised of the consequences of not calling the authors of the
statements as witnesses. The second
respondent cannot be expected to
take responsibility for Waller’s decision. If Waller needed a
postponement in order to call
witnesses she should have asked for it.
Her failure to ask for a postponement cannot be laid at the second
respondent’s door.
In
Sidumo
(
supra
) the Constitutional Court confirmed that
the grounds for review are stated in Section 145 of the Act as
suffused by the constitution.
The
applicant’s first 2 ground for review have no basis as the
applicant failed to substantiate them and prove that the arbitrator
conducted himself in a manner that rendered his arbitration award
reviewable as envisage in section 145 of the LRA.
[18]
Turning to the question of jurisdiction, it was argued on behalf of
the applicant that the arbitration award stand to be reviewed
and set
aside on the grounds that the outcome certificate is unsigned and
invalid and the arbitration should not have been held
as the third
respondent’s case was dismissed at the conciliation stage.
[19]
An outcome certificate is valid until it has been set aside by a
court of competent jurisdiction, it stands and must be treated
as
valid and all concerned can act upon it. See
Fidelity Guards
Holdings (Pty) Ltd
v
Epstein No and others
(2000) 21 ILJ
2382 applied in
NUM
v
Hernie Exploration (Pty) Ltd
[2003]
4 BLLR 319
(LAC).
[20]
The Court further found in
Fidelity Guards (supra)
that a
review application challenging the jurisdiction of the CCMA to
arbitrate must be filed within a reasonable time from the
date it was
issued.
[21]
In both
Fidelity Guards and JDG Trading
(
supra
) the
Labour Appeal Court expressed the view that an unreasonable delay is
inconsistent with the purpose of the LRA.
[22]
In
Premier of Guateng and another v Ramabulena NO and others
[2008] 4 BLLR 299
(LAC) the Court interpreted the meaning of
dismissing a case owing to an employee’s absence at a
conciliation as follows:
“
In
light of the above, it seems to me that to construe “dismiss
the matter” in rule 30(1)of the CCMA Rules as meaning
that the
employee loses his right to take the dispute to arbitration or
adjudication, ….. would be to give the phrase a
construction
that is in conflict with section 191(4) of the Act.
The
conciliator has no power to “dismiss” the referral in the
sense of dismissing it on the merits or in the sense of
precluding
the employee party from pursuing the dispute to arbitration. What he
or she could do, I would imagine, is to make a
decision if the
relevant rules of the bargaining council permitted him or her to do
so, the effect of which would be that the dispute
could not longer
bet set down for another conciliation meeting either at all or at the
request of the employee party, ….
In such a case, if the
matter is not again placed on the “conciliation roll”
within the prescribed period, including
an extended prescribed
period, the employee is entitled, once the 30-day period has lapsed,
to request that the CCMA or the bargaining
council to arbitrate the
dispute and, if he makes that request, the CCMA or the bargaining
council is obliged to arbitrate the
dispute”.
[23]
If the applicant intended to challenge the validity of the outcome
certificate, it should have done so shortly after it had
been issued.
As the certificate had not been set aside by this court it remained
valid. The third respondent correctly acted on
it and the second
respondent cannot be faulted for accepting it. At the commencement of
the arbitration proceedings the applicant
had another opportunity to
raise the point that the first respondent lacked jurisdiction to
arbitrate the dispute. It did not.
It waited until it was too late
for the point to be raised. The delay is unreasonable and
inconsistent with the purpose of the
LRA. I find no basis for
concluding that the second respondent’s conduct of proceeding
with the arbitration in the face of
the certificate and the dismissal
ruling.
[24]
For these reasons the application stands to be dismissed and there is
no reason for the costs not to follow the result.
[24]
In the circumstances I make the following order:
24.1
The application is dismissed with costs.
________________
LALLIE AJ
Date of hearing: 16 March
2011
Date
of judgement: 20 June 2011
Appearances:
For
Applicant: J. Forster
For
Third Respondent: K. Allen
Obo
Purdon Attorneys