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[2012] ZALCJHB 98
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Randfontein Local Municipality v South African Local Government Bargaining Council and Others (JR 2688/09) [2012] ZALCJHB 98; [2013] 3 BLLR 300 (LC) (19 September 2012)
7
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR 2688/09
In the matter between:
RANDFONTEIN LOCAL
MUNICIPALITY
.......................................................
Applicant
and
SOUTH AFRICAN LOCAL
GOVERNMENT
BARGAINING COUNCIL
......................................................................
1
st
Respondent
COMMISSIONER S KHOZA
NO
..........................................................
2
nd
Respondent
SAMWU
.................................................................................................
3
rd
Respondent
T LUTHERS AND ANOTHER
...............................................................
4
th
Respondent
Date of application: 11
July 2012
Date of judgment: 19
September 2012
__________________________________________________________________
judgment
___________________________________________________________________
VAN NIEKERK J
[1] This is an
application to review and set aside an arbitration award issued by
the second respondent (‘the commissioner’)
under case
number GPD 100721 on 13 July 2009. In her award, the commissioner
found that the dismissal of Messrs Luther and Marite
(cited jointly
as the fourth respondent in this application and to whom I shall
refer as ‘the employees’) was substantively
unfair. The
commissioner ordered their reinstatement with retrospective effect.
[2] The proceedings under
review concerned allegations of misconduct made against the
employees. These related to alleged breaches
of terms and conditions
of employment in the form of a failure to perform work diligently and
in particular, their failure to discharge
responsibilities of the
employees for the preparation of VAT calculations and payments.
[3] In her award, the
commissioner found that the employees had provided an explanation for
their conduct and on the basis that
their evidence in this respect
had not been challenged by the applicant in the arbitration hearing,
she concluded that the employees’
dismissal was substantively
unfair.
[4] The arbitration award
under review incorporates a prior jurisdictional ruling made by the
same commissioner. The background
to that ruling is of some
significance to the present proceedings and is briefly the following.
[5] The employees had
contended that the disciplinary hearing that they were required to
attend was irregularly constituted. In
particular, they challenged
the appointment of an outside chairperson, an attorney, on the basis
that the applicable collective
agreement did not contemplate or
authorise the appointment. On or about 3 August 2005, the employees
referred a dispute to the
bargaining council concerning the
interpretation and application of the relevant collective agreement.
On 12 September 2005, the
bargaining council issued a certificate to
the effect that a dispute concerning the interpretation and
application of a collective
agreement remained unresolved.
[6] On 4 October 2005,
the employees were found guilty of the charges against them and
dismissed.
[7] On 11 October 2005,
the employees referred a dispute to the bargaining council for
conciliation, categorising the dispute as
one concerning an unfair
dismissal and contending that the applicant had utilised an
inappropriate procedure in effecting the dismissal.The
terms of the
referral made to the bargaining council categorised the dispute is
one concerning an unfair dismissal. In relation
to the procedures
followed, the employees state that "
the respondent acted
inappropriately by utilising an inappropriate disciplinary tribunal
committee against that the collective agreement
about the
disciplinary procedure.
" In relation to the desired outcome,
the employees recorded that they wished to be reinstated with
retrospective effect.
[8] On 26 October 2005,
the employees referred a dispute to the bargaining council
arbitration where the issue in dispute was defined
as the ‘
alleged
interpretation/application of collective agreement
’. The
dispute concerned that part of the collective agreement that
regulated disciplinary procedures, and in particular,
the appointment
of persons to share disciplinary hearings. At issue was the right of
the applicant to appoint an independent professional
person to chair
the disciplinary hearing.The relief sought by the employees was that
thearbitrator nullifies the findings of the
disciplinary hearing and
that the hearing be reconstituted in compliance with the employees’
understanding of the terms of
the collective agreement. The referral
was made under case number GPD 080511.
[9] The arbitration was
held on 29 November 2005. On 15 December 2005 commissionerSekhabisa
issued an arbitration award in which
he found that the applicant was
entitled in terms of the relevant provisions of the collective
agreement to appoint a legal practitioner
to preside at a
disciplinary hearing after a review of the evidence, commissioner
Sekhabisa concluded that the applicant had discharged
the onus of
proving a fair reason for dismissal and that it had followed a
preferred procedure in dismissing the employees. The
commissioner
issued the following award:
‘
1
.
The applicants dismissal was both substantively and procedurally
fair.
2. I hereby dismiss
the application brought by the applicants.
3. No order as to
costs is made
.’
[10] On 10 April 2008,
the bargaining council issued a certificate of outcome recording that
as at that date, the unfair dismissal
dispute referred by the
employees remained unresolved. On 14 April 2008, the employees
referred a dispute to arbitration under
the auspices of the
bargaining council. The dispute concerned the unfair dismissal of the
employees and their claim for retrospective
reinstatement. The
dispute was categorised as one concerning an unfair dismissal.
[11] In the subsequent
arbitration hearing before commissioner Khoza, the applicant raised a
point
in limine
that the matter was
res judicata
and
the bargaining council did not have jurisdiction to arbitrate the
dispute. The applicant submitted that the issue referred
to
arbitration had already been the subject of an award issued by the
commissioner Sekabisa under case number GPD 080511. The award
rendered the matter that the employees referred to arbitration
res
judicata
[12]
CommissionerKhozaissued a ruling on 23 August 2008. She ruled that
the applicant ought to have raised the issue of
res judicata
at the rime of conciliation, prior to the issuing of a certificate of
outcome. On the basis of the judgement of the Labour Appeal
Court in
Fidelity Guards
, the commissioner held that although the
issuing of a certificate of outcome is an administrative act, it
acquires the force of
law if left unchallenged within a reasonable
period of time. The employees’ failure to challenge the
validity of the certificate
within a reasonable time had the effect
that the certificate remained valid. The certificateconferred
jurisdiction on the bargaining
council to arbitrate the unfair
dismissal dispute referred by the employees. After the ruling, the
arbitration proceedings and
then resumed, culminating in the award
that is the subject of these proceedings.
[13] The applicant was
raised three grounds for review. The first is that the commissioner
committed misconduct in relation to her
duties as arbitrator;
secondly, that she committed a gross irregularity in the conduct of
the arbitration proceedings; and thirdly,
that she exceeded her
powers as commissioner. In relation to the first ground, the
applicant avers that the commissioner committed
misconduct in that
she ruled that she had jurisdiction in circumstances where the issue
referred to arbitration had already been
decided upon.(In other
words, the
res judicata
point.There is also an averment
relating to the failure of the commissioner to recuse herself when
called on to do so, but this
issue was not seriously pursued).
[14] The basis of the
averment relating to gross irregularity appears to concern an alleged
failure by the commissioner to take
into account the fact that the
employees failed to give evidence in the disciplinary hearing, and
that they showed disrespect to
the applicant by walking out of the
hearing. The applicant conceded this was not an issue are before the
commissioner. It is trite
that an arbitration hearing is a hearing de
novo. Whether or not the employees gave evidence at the disciplinary
hearing is of
no consequence. During the arbitration, the applicant
led only the evidence of the externally appointed attorney who had
prosecuted
the hearing on behalf of the applicant. The employees’
evidence, in which they provided an exculpatory explanation for the
errors in the VAT calculation, was not challenged, nor was it dealt
with in the evidence presented by the applicant. For these
reasons,
there is no merit in this ground for review. Similarly, to the extent
that the ground of irregularity and/or bias extends
only to the
applicant’s complaint that the commissioner made factual
findings in favour of the employees, this is not a matter
that
ordinarily stands to be canvassed under the umbrella of gross
irregularity as a ground for review but for the reasons recorded
above, in any event, it has no merit. In short, the only ground for
review that has any potential merit is that concerning the
applicant’s plea of
res judicata
.
[15] Here, the
applicant’s contentions are misconceived. The applicable test
is not one that is rooted in s 145 of the LRA,
or in the concept of
reasonableness. This court is required to determine the correctness
or otherwise of the commissioner’s
ruling. The jurisdictional
ruling was issued in August 2008. Itwas not challenged at the time,
nor was any reference made to it
at the commencement of the
arbitration hearing, not even in the form of a reservation of rights.
Indeed, it is only in the founding
affidavit in the present
application that the ruling is obliquely attacked, as an element of
the broader contention that the commissioner
had committed gross
misconduct in relation to her duties.
[16] To the extent that
the commissioner’s finding in the jurisdictional ruling is that
the applicants had failed to raise
the jurisdictional issue within a
reasonable time and was thus precluded from doing so, her finding is
consistent with the authority
on which she relied (
Fidelity guards
Holdings (Pty) Ltd v Epstein NO & others
(2001) 21
ILJ
2382 (LAC), and the later authority of
Bombardier Transportation
(Pty) ltd v Mtiya NO & others
(2010) 31
ILJ
2065 (LC).
Even if the certificate of outcome did not confer jurisdiction on the
council to arbitrate the dispute, the applicant’s
failure to
challenge the jurisdictional ruling within a reasonable time was
fatal.
[17] More fundamentally
though, as stated above, the dispute about the application and
interpretation of the collective agreement
was conciliated before the
employees were dismissed. It follows that the fairness of their
dismissals could never have been an
issue that was required to be
determined at arbitration. The employees accept that in the request
for arbitration (which was made
after the dismissals) they sought a
ruling that the dismissals be nullified. But this is clearly a
consequence of the primary ruling
that they sought in the arbitration
hearing, i.e. that the chairperson had been irregularly appointed. It
was therefore not open
to commissioner Sekhabisa to make any ruling
concerning the fairness of the dismissals.
[18] In short: in making
her jurisdictional ruling, the commissioner came to the correct
conclusion. There is nothing in the record
in in the terms of the
record of the later arbitration proceedings or in her award that
reflects that she misconducted herself
or committed any gross
irregularity. The decision to which she came regarding the fairness
of the employees’ dismissal is
clearly one which, on the
available evidence, falls within the band of decisions to which
reasonable decision makers could come.
The application accordingly
stands to be dismissed.
[19] In so far as the
question of costs is concerned, the court has a broad discretion in
terms of s 162 to make orders for costs
according to the requirements
of the law and fairness. I must necessarily take into account the
delay in prosecuting this review.
The record was filed only in
January 2011 (the application having been filed on 19 October 2009),
without any explanation for the
delay. For these reasons, the
applicant ought to pay the respondents’ costs. The dismissals
that are the subject of this
application were effected almost seven
years ago. In my view, the application was misguided, and the
applicant has itself to blame
for the consequences of my ruling.
I make the following
order:
The application is
dismissed, with costs.
Andre van Niekerk
Judge of the Labour Court
Representation
For the Applicant: Mr.
Kubayi, Novani Eddie Kubayi Inc.
For the Respondent: Adv
FJ Nalane, instructed by Cheadle Thompson &Haysom