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[2012] ZALCD 23
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Independent Municipal and Allied Trade Union obo Gurriah v Ethekwini Municipality and Others (D350/09) [2012] ZALCD 23 (14 April 2012)
3
Not Reportable
Of interest to other
judges
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
Case no: D350/09
In the matter between:
INDEPENDENT MUNICIPAL
AND
ALLIED TRADE UNION obo
D GURRIAH
.....................................................
Applicant
and
ETHEKWINI MUNICIPALITY
.............................................................
First
Respondent
SOUTH AFRICAN
MUNICIPAL WORKERS’
UNION
...........................................................................................
Second
Respondent
SOUTH AFRICAN LOCAL
GOVERNMENT BARGAINING
COUNCIL
.......................................
Third
Respondent
B S HLEHLA N O
...........................................................................
Fourth
Respondent
Heard: 26 April 2011
Delivered: 14 April
2012
Summary:
This is a Review of an arbitration award. The commissioner,
having spent three hours on an attempt to conciliate the dispute,
then
proceeded to arbitrate the dispute. He interfered more than was
required. Furthermore, it was alleged that the commissioner was
not
properly accredited in terms of arbitration qualification at the time
of the hearing.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
PATHER A.J.
Introduction
[1] This is an
application:
to review, set aside
and remit to Arbitration before a different Commissioner, the
Arbitration Award issued by the Fourth Respondent
(“the
Commissioner”), as a commissioner of the Third Respondent;
alternatively
for the Fourth
Respondent’s Arbitration Award to be substituted with an
Award, granting to the Applicant (“the employee”),
protected promotion; and
for condonation of the
late filing of the Review application.
[2] The First Respondent
(the Municipality) opposes the application. Despite being invited to
make submissions, the Third Respondent
has failed to do so.
[3] The Commissioner
found that the employee had failed to prove that in failing to
promote him, the employer had committed an unfair
labour practice.
Background and common
cause facts
[4] The employee has been
employed by the employer, the First Respondent since 1991. At the
time of the arbitration hearing before
the Fourth Respondent (the
Commissioner), he held the position of Subsidy Administrator. During
or about March 2008, the employee
applied for the post of
Administrative Officer. His application was unsuccessful. He was
unhappy about not being appointed, and
filed this dispute claiming
that in not appointing him to the post, the First Respondent had
committed an unfair labour practice.
The arbitration
[5] According to the
record, the arbitration hearing was preceded by the Commissioner’s
unsuccessful attempt to resolve the
dispute by conciliation. Such
attempt lasted approximately three hours, from 9.00 a.m. to
approximately 12.00 p.m. on 12 February
2009, that is, the day the
arbitration hearing was scheduled to take place. As the dispute could
not be resolved, the arbitration
hearing presided over by the
Commissioner, commenced. This appears from page 2 of the record at
lines 20 to 25. However, page 105
of the record, Section A, which has
been completed by the Commissioner, indicates that the attempt at
conciliation lasted only
one and a half hours. Page 105 is the Third
Respondent’s Result Sheet, as it contains details of the
hearing and the eventual
outcome. Nothing turns on this
contradiction, although it is difficult to understand why the
Commissioner would understate the
time spent on trying to resolve the
dispute, in his reporting to the Third Respondent. There is no doubt
that in his introduction
when the arbitration proceedings commenced,
the Commissioner correctly reflected the time spent on his
unsuccessful attempt to
resolve the issue, as the record reflects
that he sought confirmation from the parties of his summary of what
had transpired, before
the arbitration proceedings began.
[6] Only the employee
testified. His evidence was that he had been interviewed by a panel
comprising three persons from the Municipality.
Despite having met
the essential requirements of the position, he was not appointed. In
his opinion, the interview went well. However,
he believed that he
had not been given an opportunity and that the Municipality’s
management had selected a candidate for
the position prior to the
interview. When the Commissioner asked him to explain his statement
about not having been given an opportunity,
the employee stated that
he may have been marked down. The record indicates that the
mechanical recording of the arbitration proceedings
had been turned
off at this point. On resumption and in response to the
Commissioner’s question as to whether he wished to
pursue the
point about underscoring, Mr Chetty who represented the employee
stated that they (presumably he and the employee) would
“check
that question”.
[7] This concluded the
employee’s case. Mrs Callahan, an officer in the employ of the
Municipality at the time and who represented
it at the arbitration
hearing, began her cross-examination of the employee. Before she
could phrase her first question, the Commissioner
requested that the
matter be stood down. The record reflects that on resumption, the
Commissioner explained that during the interlude
he had “advised”
the Applicant that it had not raised the issue of demographics. This,
despite the Municipality having
indicated, during the attempt at
conciliating the dispute, that one of its defences to the Applicant’s
claim was that of
the demographics. (By this, it is presumed that the
Municipality would plead that the Interviewing Panel had considered
gender
and race as criteria as well, in filling the vacancy).
[8] During a
not-too-lengthy cross-examination, the employee conceded that
contrary to his evidence in chief, he had been notified
by the Human
Resources Department that he had not been successful. In response to
the question of whether he had been short-listed
for the position,
the employee stated that he had been. An extract from the record and
quoted below, indicates the dialogue that
ensued:
‘
COMMISSIONER:
I think that was retracted.
MRS CALLAHAN: No, he retracted the
part where he said that somebody had already…
COMMISSIONER: He retracted all three.
MRS CALLAHAN: You retracted all three?
COMMISSIONER: That he was not given an
opportunity, that someone pre-empted and that…
MRS CALLAHAN: Okay, I understood it
that only the one part was. David, if I …’
[9] At this stage, Mrs
Callahan completed her cross-examination. The Commissioner then asked
Ms Benn, who had appeared on behalf
of Mrs N C Mthimkhulu, the latter
being the successful candidate, whether she wished to cross-examine
the employee. (Mrs Mthimkhulu
had been cited as the Second Respondent
in the dispute before the Bargaining Council). When Ms Benn stated
that she did not so
wish, the Commissioner took the unusual step of
placing on record her response, even though this was audible enough
for the purpose
of the mechanical recording device. The Commissioner
then sought Ms Benn’s confirmation, also apparently for the
record.
Not content, he proceeded to address Mrs Mthimkhulu directly,
asking whether she had understood what her “representative has
just done…” Mrs Mthimkhulu answered in the affirmative.
Clearly perplexed, the Commissioner asked Mrs Mthimkhulu whether
this
(Ms Benn’s electing not to cross-examine the employee) was in
accordance with her instruction.
[10] During a subsequent
re-examination, yet another exchange took place between the
Commissioner, and, this time Mr Chetty, the
employee’s
representative. This discussion related to whether Mr Chetty was
entitled to ask the employee whether he had been
given the reason as
to his non-appointment. According to the Commissioner, Mr Chetty was
not permitted to ask that question, as
the cross-examination of the
employee had been confined to whether he had been informed that he
had been unsuccessful in his application.
The record reveals the
conversation thus:
‘
COMMISSIONER:
You can ask the question, but just remove the reason part of it
MR CHETTY: But that’s what I
want to know, the reason part.
COMMISSIONER: Oh, okay, then you
cannot ask the question, because cross-examination wanted whether he
was not informed, not whether
reasons were given why he was not
appointed. Yes, any more re-examination?’(sic)
[11]
After a break and on resumption of the hearing, the
parties arranged the dates for the submission of their respective
closing arguments
which were to be in writing.
The application for
condonation
[12] The grounds upon
which the condonation application is based are set out in paragraphs
15 to 17 of the Founding Affidavit, page
8 of the Applicant’s
indexed documents. The application for review was made seven weeks
outside of the period provided in
the rules. In summary, these are
that the Applicant’s Internal Dispute Resolution Committee had
decided at a meeting, that
there was merit in an application to have
the Commissioner’s Award dated 9 March 2009 reviewed. A
consultation with the employee
had been arranged for 14 May 2009. In
the interim, on 11 May 2009, the Applicant became aware that the
Commissioner was not properly
accredited in terms of the Bargaining
Council’s Policy document. This document, a copy of which
appears at page 27 of the
Applicant’s indexed documents, sets
out the Bargaining Council’s policy and procedure for the
appointment of external
panelists to conduct its dispute resolution
function. As a consequence of this information becoming known to it,
the Applicant
submitted as a further ground of review, that the
Commissioner had exceeded his powers by arbitrating a dispute at a
time when
he was not properly accredited to do so.
[13] In this regard, Ms S
Jikela, who appeared for the Municipality, argued that the
application was lacking in that it failed to
address:
the question of whether
there had been fault on the part of the Applicant;
the degree of lateness
adequately; and
prospects of success.
[14] Given that strong
prospects of success exist which will be dealt with later in this
judgment, condonation for the late filing
of the review is granted.
The grounds of review
[15] In the main these
are that the Commissioner had:
15.1 misdirected himself
by discussing the matter for approximately three hours prior to the
commencement of the arbitration hearing.
It is further submitted that
the Commissioner had, during such discussion, advised the Applicant
of the possible consequences it
would face should it have raised the
issue of “demographics”, seemingly, contrary to the
Commissioner’s advice;
15.2 committed a gross
irregularity in not accepting the employee’s version of the
dispute, given that such version was the
only one presented at the
arbitration hearing; and
15.3 exceeded his powers
in that as at the date of the arbitration hearings, the Commissioner
lacked the required CCMA accreditation
to arbitrate the dispute. It
was submitted further that according to the Bargaining Council’s
policy, the Commissioner had
to have been accredited by the CCMA.
Evaluation
[16] For reasons that
will become clear, I will confine myself to the grounds of review
based on the contentions that the Commissioner
had misdirected
himself and that he had exceeded his powers.
[17] On behalf of the
Municipality, Ms Jikela argued that the pre-arbitration proceedings,
referred to on page 2 of the record,
had been recorded manually.
According to her, this had been an attempt at resolving the dispute
through conciliation. Ms Soni,
appearing for the Applicant, argued
that the discussions that preceded the arbitration were conducted off
the record. Ms Jikela’s
argument cannot be sustained, for the
reason that a pre-arbitration discussion is usually aimed at
narrowing the issues for adjudication.
Furthermore, the parties to
any pre-arbitration discussion, where agreement on the issues is
reached, may conclude a written document
incorporating such terms.
Such document then forms part of the record. An attempt at resolving
a dispute through conciliation on
the other hand, is conducted
entirely off the record, with no notes being taken or discussions
recorded. Furthermore the processes
of pre-arbitration discussions
and conciliation, and their respective outcomes are different.
Therefore, the discussions which
went on for approximately three
hours on the day of the hearing could not have been a pre-arbitration
hearing as contended by the
Municipality. If in fact a
pre-arbitration proceeding was held and which was recorded manually,
as Ms Jikela contended, such record
would then have been filed. In
any event, the Commissioner himself was clear that the discussions
were conducted in an attempt
to resolve the dispute.
[18] There is no dispute
that the Commissioner spent approximately three hours in attempting
to resolve the dispute. That he invested
all that time in the
discussions that preceded the arbitration indicates that he must have
put great effort into the attempt to
resolve the matter. After all,
the issue in dispute eventually turned out to be a simple factual
dispute, judging by the time spent
on the arbitration hearing. While
commissioners are entitled in terms of section 138 (3) of the Labour
Relations Act No.66/1995
as amended, if all the parties consent, to
suspend the arbitration proceedings and attempt to resolve the
dispute through conciliation,
in my view the Commissioner in this
case ought to have exercised caution. This is because having invested
much time and effort
in trying to resolve the issue, one or some or
all of the parties stubbornly refused to budge from her/his original
position. It
is probable that the Commissioner was fatigued after
such effort. In my view, the Commissioner entered the arena all too
often
during the subsequent arbitration hearing. In this regard, the
record contains several instances where his interventions and
comments
are found to be inappropriate. Not only are his comments
inappropriate, but there are instances where his prior knowledge of
the
issue is evident and is inconsistent with the evidence presented.
In addition to the extracts quoted above, the record discloses
the
following comments:
‘
MR CHETTY:
Mr Gurriah, one of the documents that was presented by Respondent,
(inaudible) your statement, where it shows, IMATU’s
bundle,
page 13, it shows …
COMMISSIONER: Did we not agree that
that document is incorrect, that the document to be used is this
one?’
Nowhere in the evidence
was any agreement recorded as to which documents were to be used or
not to be used. This intervention seems
to be based on the
discussions that were held prior to the arbitration hearing. It is
difficult to escape the conclusion that the
Commissioner had
pre-judged the issue and had decided which documents would lend
itself to such an outcome.
[19] Yet another extract
from the record discloses the following comments:
‘
COMMISSIONER:
I stood the matter down and advised the Applicant that they have not
said a word about demographics. Earlier on when
we conciliated the
matter the employer raised the defence that one of the things, or one
of the things that they relied on was
demographics. You may continue
with your cross-examination.”
It was not necessary for the
Commissioner to have given this advice to the applicant, and
especially not, to have done so off the
record. The Applicant after
all is a registered trade union whose officials are skilled in the
practice of presenting cases at
arbitration hearings on behalf of its
members. While a Commissioner is entitled to ask questions for
clarity, such questions should
not be aimed at showing
inconsistencies, as is apparent in this case. An example of such
conduct is evident in the following exchange,
already referred to
above:
‘
COMMISSIONER:
You said that you were not given an opportunity, I want to know why
do you say you were not given an opportunity?
That may assist me in
arriving at an informed award.
MR GURRIAH: Perhaps in the scoring.
COMMISSIONER: In the scoring.
MR GURRIAH: They down-scored me,
perhaps with the …
COMMISSIONER: How did they down-score
you?
MR GURRIAH: I don’t know, they
put (inaudible) that’s why …’
At this point the tape
was turned off. On resumption of the hearing, the record discloses
the following:
‘
COMMISSIONER:
go on record, yes, I stood the matter down because the statement was
made that the Applicant was not given an opportunity,
someone
pre-empted the results and that the Applicant was under-scored. Do
you still want to pursue that?’
That Mr Chetty who
represented Mr Gurriah then appeared to retract the question,
although the record quotes him as saying that they
would “check”
the question, supports the inference that some badgering by the
Commissioner had taken place prior to
the arbitration proceedings. In
my view, the badgering by the Commissioner appeared to continue
throughout the arbitration proceedings.
This is evident from the
manner in which the tape was turned off at times while Mr Chetty was
leading Mr Gurriah. Against the background
of the Commissioner’s
involvement in the earlier, protracted discussions aimed at
attempting to resolve the matter, it was
improper for the
Commissioner to have disclosed any aspect of those discussions. The
discussions had in any event taken place entirely
without prejudice
to either party’s rights in the subsequent arbitration hearing.
Once again, it indicates that the Commissioner
had pre-judged the
matter and as a consequence of having being involved in the attempted
resolution of the dispute.
[20] Given the
Applicant’s submission that the Commissioner had advised it of
possible consequences should it have raised
the issue of
“demographics” coupled with the Commissioner’s own
comments in this regard, it is clear that the
First Respondent’s
demographic profile was of significance to one or more of the
parties. For the Commissioner to have turned
off the tape and, when
the hearing resumed, to place on record that he had “advised”
the Applicant about the matter,
creates a further inference that he
preferred not to have had the full conversation recorded.
[21] From the
conversation referred to in paragraph 9 above, between the
Commissioner, Ms Benn and Mrs Mthimkhulu, it appears that
the
Commissioner was dissatisfied with their responses. It was improper
for him to have gone further and to have sought confirmation
from Mrs
Mthimkhulu that those were indeed her instructions. In my view, this
is insulting to Ms Benn as the Commissioner seemed
to be suggesting,
for no apparent reason that she was not acting in the best interests
of her member. In the result, the Applicant’s
submission that
the Commissioner had misdirected himself in the conduct of the
arbitration proceedings is well-founded and reasonable.
On this
ground alone, the application stands to be granted.
[22] Turning to the
question of the Commissioner’s qualification as an arbitrator,
it was contended on behalf of the First
Respondent that the
Commissioner had at the time, yet to complete “the conciliation
arbitration course” but that he
had been accredited for both
“conciliations and arbitrations” for a period of one
year. It is difficult to understand
this reasoning. If the
Commissioner had yet to complete the course, he surely would not have
been accredited to perform the functions
of a commissioner. The
ground upon which it was submitted that the Commissioner exceeded his
powers relates only to the lack of
accreditation in respect of the
functions of an arbitrator. Therefore, and supported by the First
Respondent’s contention,
the Commissioner is found not to have
been accredited to arbitrate disputes at the time. Although reference
was made to the Third
Respondent’s Policy document in regard to
the appointment, review and re-appointment of its panel of
Conciliators and Arbitrators
at page 27 of the Applicant’s
Indexed documents, no evidence was presented as to whether the
Commissioner falls within the
ambit of Clause 3 or Clause 4 thereof.
In summary, Clause 3 of the document relates to the Third
Respondent’s criteria for
the initial appointment of a
candidate, whereas Clause 4 deals with the re-appointment of a
panelist. It is a requirement in terms
of Clause 3 that the candidate
must be accredited by the CCMA as a “conciliator/arbitrator”.
Clause 4 however, contains
no such requirement. However, as the
Commissioner’s status as an arbitrator was placed in issue and
as it was not disputed
that such an issue existed, it may therefore
be concluded that the Commissioner was in the initial stages of his
appointment to
the Third Respondent’s “External Panel”.
It is unfortunate that the Third Respondent did not respond to the
court’s
invitation to make submissions on the matter. In any
event, no evidence was presented either as to whether the
Commissioner was
aware or could reasonably have been aware of his
lack of accreditation in respect of arbitration hearings. In this
regard, the
Third respondent must surely take responsibility for
having allocated a matter for adjudication to a Commissioner who did
not have
the necessary qualification at the time. Section 52 (1) of
the LRA provides as follows:
‘
(1) With a
view to performing its dispute resolution functions in terms of
section 51 (3), every council must –
(a) apply to the governing body of the
Commission for accreditation to perform those functions; or
(b) appoint an accredited agency to
perform those functions referred to in section 51 (3) for which the
council is not accredited.’
In my view, the LRA
places the duty on the council, therefore the Third Respondent, to
apply to the Commission for accreditation
to perform the functions
that its external panelists perform as conciliators and arbitrators.
In the ordinary course of events,
the matter had been allocated to
the Commissioner; he had simply done what was required of him as an
external panelist of the Third
Respondent. However, in view of the
finding that the Commissioner did not have the necessary
qualification at the time to perform
the duties of an arbitrator, by
arbitrating the matter he had exceeded his powers. Therefore the
application stands to be granted
on this further ground.
Order
[23] In the premises, I
make the following order:
1 The arbitration award
dated 9 March 2009 is reviewed and set aside;
2 The matter is remitted
to the Third Respondent to be arbitrated by a commissioner other than
the Fourth Respondent being the Commissioner.
3 There is no order as to
costs.
___________________
Pather A.J.
APPEARANCES:
FOR THE APPLICANT: Ms C H
Soni
FOR THE FIRST RESPONDENT:
Ms S Jikela