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[2012] ZALCPE 8
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Ferreira v Tyre Manufactures Bargaining Council and Others (P 22/11) [2012] ZALCPE 8; (2013) 34 ILJ 364 (LC) (18 May 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
IN PORT ELIZABETH
JUDGMENT
Case
no: P 22/11
In the matter between:
NEWTON FERREIRA
Applicant
and
THE TYRE MANUFACTURERS BARGAINING COUNCIL
First Respondent
BOTHA DU PLESSIS (
N.O.
)
Second Respondent
GOODYEAR SOUTH AFRICA (PTY) LTD
Third Respondent
Heard
:
08 May 2012
Delivered
:
18 May 2012
Summary:
(Review - ruling dismissing referral to arbitration
for dilatoriness - ultra vires).
JUDGMENT
LAGRANGE, J
Introduction
This is an application to set aside a ruling by an arbitrator, the
second respondent, who was appointed to arbitrate an unfair
dismissal dispute referred to the New Tyre Manufacturers Bargaining
Council (‘the bargaining council’), by the applicant,
Mr
N Ferreirra.
The arbitrator did not arbitrate the dismissal dispute but issued a
ruling on 15 November 2010 that the applicant’s referral
of
his dispute to arbitration should be dismissed. The respondent
employer, Goodyear South Africa (Pty) Ltd (‘Goodyear’)
had objected to the late hearing of the matter, even though it was
common cause that the original referral of the dispute for
arbitration was within the prescribed time limit.
Brief chronology of the matter
I do not intend to detail every exchange between the parties, but
simply to outline the process leading up to this ruling for
the sake
of contextualising the issues. The sequence of events summarised in
the ruling is essentially not in dispute, save that
the arbitrator
erred in stating that in February and March 2008, Goodyear’s
attorneys requested dates for an arbitration
meeting but received no
response.
The applicant was dismissed in June 2006 for alleged poor work
performance. He timeously referred an unfair dismissal dispute
to
the bargaining council and after conciliation he referred it to the
first respondednt, a bargaining council (‘the council’
or ‘the bargaining council’), for arbitration on 31
October 2006, also within the statutory time limits. In November
that year the parties agreed that legal representatives could appear
in the arbitration proceedings and the parties would provide
mutually suitable dates for the hearing. Thereafter progress in the
matter was slow.
In May 2007, Goodyear furnished the applicant with a letter of
pre-arbitration issues to which the applicant did not reply. The
following month, the applicant withdrew his mandate from his
previous representative and instructed his present attorney of
record in the matter, Mr W van Rensburg, to represent him.
Between July 2008 and March 2008 the respondent made various
attempts to elicit a response to its pre-arbitration enquiries.
The
applicant, after not responding for some months, requested
documentation from the respondent and made a partial response
in
early December 2008, but did not answer further repeated requests to
complete his response. In June 2009, following a silence
of nearly
three months on the part of the applicant, he contacted the
respondent to try to identify a suitable date for a hearing.
On 17 June 2009, in answer to this request, the respondent first
indicated its view that the applicant had waived his right to
pursue
the matter and thereafter advised it would resist any attempt to set
the matter down. The respondent pointed out that
seventeen months
had elapsed since it had made a preliminary bundle of documents
available to the applicant and he had failed
to respond to its
pre-arbitration enquiries.
In October 2009, the matter was set down for arbitration but the
hearing was again postponed because of the unavailability of
the
respondent. The respondent subsequently formalised its objection to
the arbitration proceeding after the delay in convening
the hearing.
Some of the details in the sequence above are set out in more detail
in evaluating the merits of the application.
The ruling
The basis of the arbitrator’s ruling may be summarised as
follows:
It is an objective of the Labour Relations Act 66 of 1995 (‘the
LRA’ or ‘the Act’) to promote the effective
resolution of disputes and this entails an expeditious process.
The respondent never waived its right to bring the application to
dismiss the referral to arbitration.
The applicant never communicated his view that he was not obliged
to respond to its pre-arbitration enquiries to the respondent.
As an arbitrator he had a discretion to decide whether or not to
allow the arbitration to proceed and in exercising that discretion
he was guided by the principles of justice and fairness.
It was unfair for an employer to have a sword hanging over it
indefinitely and was entitled to finality.
In conclusion, the applicant had thwarted the fundamental
objectives of the LRA and infringed the respondent’s right
to
the expeditious resolution of disputes.
The arguments
The first issue is a legal one.The applicant maintains that the
arbitrator had no power and, by implication, no discretion to
make
the ruling he did. Secondly, in so far as the respondent might have
suffered prejudice resulting from the delay it must
accept part of
the blame because it was entitled to approach the bargaining council
to set the matter down, and the parties had
agreed they would find a
mutually convenient date. In any event, the applicant argues the
respondent had failed to place any
evidence of the prejudice it had
suffered before the arbitrator.
The respondent points out, correctly, that the Labour Court has
deprived applicants of the right to pursue remedies in circumstances
where an applicant has unduly delayed the prosecution of a claim. It
is now a common practice when an applicant has delayed unduly
in
prosecuting a review application for a respondent to bring an
application dismissing the review proceedings under Rule 11
of the
Labour Court rules. Similarly, where an applicant has been
excessively slow in finalising the steps necessary to have
a matter
set down for trial once pleadings have closed, the court will also
entertain such applications. If the respondent is
right on the legal
question, the second issue is whether the arbitrator’s
decision was in some other way irregular or unreasonable.
The powers of the arbitrator
The key legal question is whether bargaining councils or the CCMA
may also entertain similar applications. The first point to
make is
that this court’s power to dismiss referrals and applications
for lack of diligence on the part of applicants in
pursuing their
matters is not derived from the Rules of Court, as such. Rule 11 is
merely a convenient procedural vehicle for
bringing an application
before court for consideration. The power to dismiss matters is a
power that the court exercises in the
course of exercising its own
inherent powers as a high court.
1
A commissioner or panellist of a bargaining council performs a
quasi-judicial statutory dispute resolution function and exercises
no inherent jurisdiction like a court. Their powers must be sourced
in the provisions of the governing statutes.
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2006] ZACC 9
;
2007
(1) SA 343
(CC)
, the Constitutional Court reaffirmed the
principle that:
'(t)he doctrine of legality, which requires that power should have
a source in law, is applicable whenever public power is exercised
. .
. . Public power . . . can be validly exercised only if it is clearly
sourced in law.'
2
A commissioner or an arbitrator charged with the obligation to
determine a dispute can only dismiss an applicant’s claim
on
the basis of excessive delays in prosecuting the claim, if that is a
power which is expressly granted, or is reasonably necessary
for
exercising their express powers.
“
It is trite that the power to do that
which is expressly authorised includes the power to do that which is
necessary to give effect
to the power expressly given.”
3
If a dismissed employee fails to refer an unfair dismissal dispute
timeously to conciliation under s 191(1)(b)(i), or subsequently
fails to refer the dispute to arbitration in terms of s 136(1)(b),
the employee may be barred from proceeding in the absence
of
obtaining condonation. The CCMA and bargaining councils are
specifically empowered to permit an employee to refer the dispute
for conciliation after the 30 day time limit under s 191(2) of the
LRA, or to arbitration after the 90 day time limit under s
136
(1)(b), on good cause shown.
Once the conciliation phase has passed, the council or the CCMA
‘must arbitrate the dispute at the request of the employee’
in terms of s 191(5)(a)(i). Section 191(5A)(c) further states that
the council must commence the arbitration immediately after
certifying the dispute remains unresolved if the dispute concerns an
alleged unfair dismissal for misconduct or incapacity, if
no party
has objected to the matter being dealt with in terms of that
section. The latter provision was clearly introduced to
reduce the
delay between conciliation and arbitration, where possible.
It is plain from the provisions of s 191(5)(a) that the council is
under an obligation to arbitrate the dispute if the employee
refers
it to arbitration within the 90 day period in s 191(1)(b)(ii). The
council has a statutory duty to convene the arbitration
hearing once
it receives a timeous referral, or if condonation for a late
referral is granted.
Clause 14 (5) of the bargaining council’s constitution
provides:
"the arbitration proceedings must be conducted in accordance
with CCMA practice and procedure, and well as with the provisions
of
section 138 and 142 and, if applicable, sections 139, 140 and 141, of
the Act, read with the changes required by the context."
In terms of s 138(1), once the appointed arbitrator has the matter
before her, she is empowered to conduct the arbitration in
a manner
that she “considers appropriate in order to determine the
dispute fairly and quickly, but must deal with the substantial
merits of the dispute with the minimum of legal formalities”.
Section 138(9) states:
“
(9) The commissioner may make any
appropriate arbitration award in terms of this Act, including, but
not limited to, an award-
(a) that
gives effect to any collective agreement;
(b) that gives effect to the provisions and
primary objects of this Act;
(c) that
includes, or is in the form of, a declaratory order.”
Rule 31(1)(c) of the CCMA rules provides for a party to bring
preliminary or interlocutory applications, and rule 31(10) provides
that the application may be determined in any manner the arbitrator
deems fit.
Section 1(d)(iv) of the LRA provides that a primary object of the
Act is the “
effective resolution of labour disputes
”.
A number of decisions of the courts have held that an important
characteristic of an effective dispute resolution is
that it should
be expeditious.
4
It follows, in my view, that a party that is dilatory in exercising
its rights under the Act may, in cases of unjustifiable delay,
thwart the aim of an expeditious dispute resolution process, and can
be prevented from dragging a matter out indefinitely by
its own
inaction. I believe that it is clear also that an arbitrator does
have the power to dismiss a matter referred to arbitration
in such
cases, because this is reasonably incidental to a commissioner’s
power to make an award which gives effect to one
of the primary
objects of the Act, in terms of s 138(9)(b). In this instance, the
bargaining council constitution has also adopted
that provision as
applicable to arbitrator’s performing its statutory dispute
resolution functions, and has expressly adopted
the CCMA practices
and procedures, which include the consideration of interlocutory
applications. Even though the primary responsibility
for advancing
the matter rested with the applicant, the respondent did have
another remedy of approaching the bargaining council
to set the
matter down for arbitration and the bargaining council would have
been obliged to perform its statutory obligation
to arbitrate the
dispute, if necessary on pain of the respondent obtaining a mandamus
compelling the council to do so. But I
do not believe it was
confined to that remedy.
The arbitrator’s exercise of his power to dismiss the
claim
In this instance, the respondent was the party trying to get the
arbitration proceeding underway. It drafted a notice for a
pre-arbitration minute. On the topics of common cause facts, facts
in dispute and issues the arbitrator was required to decide,
the
relevant paragraph of the notice read:
“
With a view to determining those facts
that are common cause and those that are in dispute between the
parties, and in order to
determine the precise ambit of the issues
that the arbitrator is required to decide, the Applicant is called
upon to respond to
the issues/enquiries raised hereunder.
2.1 In precisely what respect, if at all, does the Applicant
contend that his dismissal was substantively unfair? Full and proper
particulars are required.
2.2 In precisely what respect, if any, does the Applicant contend
that his dismissal was procedurally unfair?”
The two questions posed in 2.1 and 2.2 ought to have been relatively
simple to answer, even if only in outline, and without having
to
provide details that would be the subject matter of evidence. It was
only on 17 October 2007 that the applicant’s attorney
of
record requested a copy of the documents the respondent intended
relying on in the arbitration proceedings. This came after
several
requests were made by the respondent for a response from the
applicant to the pre-arbitration notice queries and to hold
a
pre-arbitration conference. The respondent suggested that documents
could be exchanged at the pre-arbitration meeting and it
did not see
why its queries could not be answered without the documents. The
applicant then made a limited response, but claimed
he needed the
documents to do anything more. On the central questions mentioned
above, all the applicant was prepared to say
was that his dismissal
was substantively and procedurally unfair and that he would provide
full particulars once documentation
was received. A less forthcoming
response could not have been made.
Despite the fact that no pre-arbitration meeting took place, the
respondent did make disclosure of certain documents to the applicant
on 21 January 2008 to facilitate a response. Despite three requests
during February and March 2008 to respond to the pre-arbitration
enquiries, no response was forthcoming from the applicant. It was
only more than a year after this that he contacted the respondent,
out of the blue, with a view to identifying a suitable date for the
hearing. As the respondent also notes, by then it was three
years
after the applicant had been dismissed. Notably, the applicant had
provided no further answers to the pre-arbitration notice
in all the
intervening time and now simply wanted to proceed to arbitration
directly. The applicant adopted the view that unless
the bargaining
council had directed that a pre-arbitration meeting be held, he was
under no obligation to attend one, nor to
respond to the queries in
the pre-arbitration notice. This stance had never previously been
conveyed to the respondent. On the
contrary, he had conveyed the
impression that he was not averse to meeting with the respondent to
conclude a pre-arbitration
minute, once he had enough information
from it to do so.
At this juncture the respondent made its view clear, namely that it
regarded the applicant as having waived his right to pursue
his
dispute and that it would oppose any attempt to set the matter down
for arbitration. On 15 January 2010, the respondent launched
an
application at the bargaining council to dismiss the applicant’s
unfair dismissal claim, and the award in that application
is the
subject matter of this review.
The applicant was indeed entitled to have his dispute arbitrated,
but he adopted a virtually supine attitude to advancing the
matter
once agreement had been reached to settle on agreed dates for the
hearing. There is no evidence of him trying to reach
agreements on
future dates with the respondent. When the respondent started to
advance the process by means of a proposed pre-arbitration
minute,
the applicant’s assistance was negligible at best. Before the
applicant attempted in June 2009 to set the matter
down for
arbitration, more than nine months of complete silence on his part
had passed.
In the circumstances, the applicant’s approach can only be
characterised as an abuse of process. Merely because he had
a right
to proceed to arbitration did not mean that he did not have an
obligation to exercise his right timeously. It could never
have been
the intention of the legislature that once a request for arbitration
had been made, but an employee party had made
an arrangement with
the employer party in terms of which the parties would revert on
dates which suited them, that the employee
could elect on any date
in the future to invoke his right to arbitration, irrespective of
what subsequently transpired. Once
agreement on a mutually
acceptable date was not forthcoming within a reasonable time for
whatever reason, the applicant should
have requested the bargaining
council to set the matter down. In this case, there is little
evidence that he even made much effort
to arrange a convenient date
with the respondent.
In the circumstances, I am satisfied in this instance that there was
nothing unreasonable about the arbitrator’s exercise
of his
power to dismiss the applicant’s claim for the reasons he gave
on the facts before him.
Order
Accordingly,
The applicant’s review application to set aside the
arbitrator’s ruling of 01 December 2010, under the first
respondent’s case number NTBC30/2006 is dismissed.
The applicant is ordered to pay the respondent’s costs.
_______________________
R LAGRANGE, J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: W van Rensburg of Wikus van Rensburg Attorneys
FIRST RESPONDENT: J Partington instructed by Chris Baker Attorneys
1
Solidarity
& Others v Eskom Holdings Ltd
(2008) 29
ILJ
1450 (LAC)
at 1466-7,[38]-[39]
2
Per
Langa, CJ at 372-3,[68]
3
Per
Ngcobo, J in
Matatiele Municipality and Others v President of
the RSA and the RSA and Others
2006 (5) SA 47
(CC)
at
64,[50] where the learned judge also cited with approval the dictum
of Van Zyl, J in
Moleah v University of Transkei and Others
1998 (2) SA 522
(Tk)
at 536H-537D, viz: “
When the
scope of the authority of an administrative organ has to be
determined the rules of interpretation are often used to
determine
whether there are implied powers (see Steyn Die Uitleg van Wette 5th
ed at 208--14). Applying the principles applicable
to the
interpretation of statutes, it is clear that,
if certain
conduct is required or authorised, the authorising act should be
interpreted as impliedly including authorisation to
do that which is
'reasonably necessary' to achieve the main purpose or to perform the
action effectively or that which is 'reasonably
incidental' or
'reasonably ancillary' to those powers expressly conferred.
Such implied powers are construed according to the so called ex
consequentibus (quando lex aliquid alicui concedit conceditur et
id
sine quo res ipso esse non potest) and ex accessoris eius, de quo
verba luquuntur rules of construction. (See Steyn (op cit
at 51--4,
209--13); Devenish Interpretation of Statutes at 86--8; Baxter (op
cit at 404--5); Johannesburg City Council v Makaya
1945 AD 252
;
Lekhari v Johannesburg City Council
1956 (1) SA 552
(A); Jauka v
Port Alfred Municipality
1960 (4) SA 296
(E); Pretoria City Council
v South African Organ Builders (Pty) Ltd
1953 (3) SA 400
(D); Yanqua
Middeldrift (Edms) Bpk v Aspoortbesproeiingsraad
1974 (4) SA 473
(C); Middelburg Municipality v Gertzen
1914 AD 544
; Bloemfontein
Town Council v Richter
1938 AD 195
; Brakpan Town Council v Burstein
1932 TPD 335
and Maris en Andere v Verkiesingsbeampte, Galeshewe
Munisipaliteit, en Andere
1990 (2) SA 531
(NC).) It is clear from
the reading of the aforementioned decisions that the Courts seldom
draw a clear distinction between these
grounds for interpretation by
implication. It is, however, for purposes of this judgment not
necessary to comment thereon. It
is sufficient to state that the
scope of authority of an administrative organ can be held to be
impliedly extended if such authority
is 'reasonably necessary' or
'incidental' to the authorised power.”
(emphasis added)
4
See,
for example,
CWIU v Darmag Industries (Pty) Ltd
[1999] 8 BLLR 754
(LC)
at
759,[32]
and
POPCRU
obo Sifuba v Commissioner of the SAPS & others
[2009]
12 BLLR 1236
(LC) at 1243,[30]
relying
on
National Education Health and Allied Workers Union v
UCT
2003 (3) SA 1 (CC)
at
paragraph 31.