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[2014] ZALCJHB 25
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Plessy International Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR973/10) [2014] ZALCJHB 25 (12 February 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR 973/10
In the
matter between:
PLESSY
INTERNATIONAL
LTD
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
First
Respondent
ALD PIETERS
NO
Second
Respondent
BERNARD
TERBLANCHE
Third
Respondent
Date
heard:
1/11/2013
Date
delivered: 12/2/2014
Summary:
Application to review a condonation ruling on the ground of a ‘gross
irregularity’.
JUDGMENT
Rabkin-Naicker
J
[1]
This is an opposed review of a condonation ruling by the second
respondent (the Commissioner)
in which the following was recorded as
the decision:
“
[6]
Having considered all of the above, the weight of the arguments are
in favour of granting
condonation. It is noted that the period of
lateness, although significant, is not alarmingly late. In my view,
the applicant’s
explanation for the lateness under point 2 is
reasonable in view of the applicants self-confessed lay understanding
of labour matters.
The respondent argued extensively on the
applicant’s prospect of success and that the applicant was not
retrenched as his
fixed contract came to an end. Significantly it
argued that the CCMA lacks jurisdiction over the matter
geographically, thus further
reducing the applicants prospects of
success. All these points are disputed by the applicant and it is my
decision that fact finding
at arbitration will deal with the merits
of each parties arguments. See – EOH ABANTU (PTY) LTD VS CCMA
AND 2 OTHERS –
CASE NO JR2911/07 (17 para 30).
[7]
Condonation is granted.”
[2]
In the
EOH Abantu
[1]
matter referred Cele J stated as follows:
“
[28]
The question whether or not an employment relationship existed is
one which, like the question whether
or not an employee was in fact
dismissed, falls within the jurisdiction of the commission to
determine in the course of its [arbitration]
functions. The
significance of this distinction is most evident when the role of a
reviewing court is considered. The commission
has power to determine
the question whether or not a party to a dispute referred to it is an
employee or an independent contractor.
This means that the question
does not raise a jurisdictional issue in the sense contemplated in
rule 14 of the rules, and that
a conciliation commissioner is under
no duty to determine the question at the conciliation stage of the
proceedings.
[29]
Where the jurisdictional issue in question requires the resolution of
a factual dispute, the
leading of oral evidence and a determination
of difficult questions of mixed law and fact, on matters that are
intimately bound
up with the substantive merits of the dispute may
legitimately be deferred to the arbitration stage of the
proceedings.
[30]
The conciliation function of the commission is materially different
from the arbitration function.
The commission, in conducting
arbitration proceedings, has been described by the Constitutional
Court as an administrative body
exercising a quasi-judicial function.
A commissioner conducting an arbitration process is therefore
performing an administrative
function. A commissioner's performance
of the conciliation function is not reviewable on the principle of
legality. In this regard,
it is respectfully submitted that the
decision of the honourable court in Seeff Residential Properties is
clearly wrong. ”
Evaluation
[3]
The
EOH Abantu
case referred to above, was not in point with
the matter before the Commissioner. The Commissoner heard a
condonation application
prior to conciliation of the dispute, in
which the issue of jurisdiction formed part of the ‘prospects
of success’
leg of the enquiry he was bound to make. The
Commissioner was therefore incorrect when he relied on the
EOH
Abantu
authority. He failed to grasp an important distinction
between the two enquiries: A ruling on a jurisdictional point which
is made
by a commissioner on the basis of facts and law is decided on
a balance of probabilities. In a condonation application, the
question
of prospects of success (including
in casu
whether
the respondent was an employee and/or his employment was governed by
the laws of the RSA) falls to be determined on facts
prima facie
established i.e. on facts which if proved, would entitle a party
to the relief sought in the main application.
[4]
This misconception by the Commissioner, as the applicant averred,
amounts to a gross irregularity
i.e. the Commissioner misconceived
his mandate
[2]
,
or to put it differently, the nature of the enquiry before him. In
Goldfield Mining South
Africa (Pty) Limited (Kloof Gold Mine) v CCMA and Others
,
the Labour Appeal Court per Waglay JP
[3]
has held that a reviewing court, having found that an arbitrator has
committed a gross irregularity, must still apply the test
set out in
Sidumo – i.e. was the decision by the arbitrator one that
another decision-maker could reasonably have arrived
at based on the
evidence before him. In
Goldfields
,
the court found that the arbitrator incorrectly categorized the case
before him as poor performance when in fact it was a case
of
misconduct and stated as follows:
“
It
therefore follows that in approaching the dismissal as one effected
for poor performance, the arbitrator committed a gross irregularity
in the conduct of the proceedings. The conclusion he arrived at was
influenced by the wrong categorization of the case against
the third
respondent. This however is not sufficient for the award to be
reviewed and set aside. The question needs to be asked:
had the
categorization of the case against the third respondent been
misconduct as opposed to poor work performance, is the arbitrator’s
award nonetheless one that could be arrived at by a reasonable
decision-maker?”
[4]
[5]
It is not necessary for me to follow
Goldfields
in this
matter, and enquire into whether the decision to grant condonation is
nonetheless one that could be arrived at by a reasonable
decision-maker.
Goldfields
dealt with the review of an
arbitration award, and considered the requirements for review in the
context of arbitration proceedings
under section 145 of the LRA. The
relevant provision we are dealing with is that contained in section
158(1)(g) of the LRA which
provides that the Labour Court may:
“
(g)
subject to section 145
[5]
,
review the performance or purported performance of any function
provided for in this Act
on
any grounds that are permissible in law
;”
(my emphasis)
[6]
In
Carephone
[6]
the Labour Appeal Court held that on a correct interpretation of
sections 145 and section 158(1)(g), Section 158(1)(g) does not
confer
a general power of review but provides merely for review of
administrative functions not defined specifically in ss 145
and
158(1)(h) of the LRA. This led to the amendment of section 145, the
history of which was dealt with by Ngobo J (as he then
was) in his
minority judgment in
Sidumo:
“
[187]
I pause here to refer to the history of s 158(1)(g). This provision
originally used the words 'despite s 145' instead of 'subject
to s
145'. Prior to the decision of the Labour Appeal Court in Carephone,
there were conflicting decisions of the Labour Court
on the question
whether the Labour Court has the power to review arbitral awards
under s 158(1)(g). The one line of decisions
held that there
was no such power. However, a majority of the
decisions of the Labour Court held that there was
such power.
As the Labour Appeal Court pointed out in Carephone, apart from the
language of the provision, the reasoning
in favour of the application
of s 158(1)(g) found justification in the view that the grounds of
review under s 145 were limited
in scope and did not give expression
to the right to just administrative action in s 33 of the
Constitution. In Carephone
the Labour Appeal Court construed
the word 'despite' in s 158(1)(g) to mean 'subject to', this
being 'a lesser evil than
ignoring the whole of s 145' and held that
the review of CCMA arbitration awards must proceed under s 145 of the
LRA. The legislature
subsequently intervened and introduced an
amendment in line with the decision in Carephone.”
[7]
The ‘gross irregularity’ ground, latent or patent, is a
standalone ground
for the review of administrative decisions which
are permissible in our law.
[7]
I am therefore not bound to follow the approach in
Goldfields
when reviewing a
condonation ruling under section 158(1)(g). I note that this judgment
highlights what might be considered as an
anomaly: i.e. that ‘gross
irregularity’ is a standalone ground of review of one
administrative function under the LRA
(a condonation ruling), but is
not, after
Goldfields
,
of another administrative function (an arbitration award). Whether
this is indeed an anomaly is not for this court to decide.
[8]
The ruling
in casu
stands to be reviewed and set aside. I do
not consider it appropriate to substitute the ruling given the
limited record of the
condonation proceedings. Nor do I find this to
be a matter in which costs should follow the result. I therefore make
the following
order:
1.
The ruling under case number GAJB 3308-10 dated 12 March 2010 is
hereby reviewed
and set aside;
2.
The condonation application is referred back to First Respondent for
re-hearing
before a Commissioner other than the Second Respondent
_______________
Rabkin-Naicker
J
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant: Advocate MA Lennox instructed by Mohons
Attorneys
For the
Respondent: Advocate JSC Nkosi instructed by Graham Attorneys
[1]
2010(31) ILJ 37(LC)
[2]
Telecordia Technologies Inc v Telkom SA Ltd
[2006] ZASCA 112
;
2007 (3) SA 266
(SCA)
paragraphs 72and 73
[3]
Case
Number JA 2/2012 delivered on 4 November 2013
[4]
At paragraph 20
[5]
The phrase “subject to section 145” replaced that of
“despite section 145” in the 2002 amendments
to the LRA
[6]
Carephone (Pty) Ltd v Marcus NO & Others
1999 (3) SA 304
(LAC) at paragraph 26
[7]
See section 6(2) of PAJA