About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 105
|
|
Dihlabeng Local Municipality v Independent Municipal And Allied Trade Union obo Motloun (JR2401/09) [2014] ZALCJHB 105 (28 March 2014)
REPUBLIC
OF SOUTH AFRICA IN THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Not
reportable
Case
No: JR2401/09
In
the matter between:-
THE
DIHLABENG LOCAL
MUNICIPALITY Applicant
and
INDEPENDENT
MUNICIPAL AND ALLIED TRADE
UNION
obo B J MOTLOUN
First
Respondent
A
V LEKOTA
Second
Respondent
Heard:
12 APRIL 2013
Delivered:
2
8
March 2014
Summary:
The
arbitrator’s failure to deal with the main issue renders his or
her arbitration award reviewable.
JUDGMENT
Introduction
[1]
This
is an application to review and set aside an arbitration award of the
second respondent in which he ordered the applicant to
pay the
individual first respondent an amount of R44,179.68, the difference
in remuneration between job levels 6 and 7 from 16
November 2005.
That the application W?s filed outside the 6 weeks period envisaged
in section 145(1) of the Labour Relations Act
[1]
and the applicant applied for condonation of the lateness. Both
applications are opposed by the fist respondent.
Condonation
[2]
This application was filed outside the
statutory six weeks period envisaged in section 145 of the LRA. The
explanation proferred
the applicant for the delay is that shortly
after receiving the arbitration award it enlisted the services of
Advocate Pretorius
SC to settle the founding papers. He was not
readily available owing to work commitments and the High Court
recess. These reasons
are not denied in the first respondent’s
answering affidavit. A further reason is that the docex took an
unreasonably long
period to deliver the founding papers to the
correspondent of its attorneys for purposes of serving the founding
papers. The applicant’s
submissions that the delay was not
caused by its inaction and that the respondents will not suffer
prejudice as a result of the
delay were denied by the first
respondent.
[3]
It
is
accepted
principle that condonation is not granted for the asking. Applicants
are required to make out a case for the court to exercise
its
discretion in their favour. The test for condonation requires the
applicant to provide a reasonable explanation for the delay
and prove
that it has reasonable prospect of success. Prejudice and fairness to
both parties are part of the factors which need
to be considered.
[2]
The interests of justice is the overriding consideration.
[3]
[4]
It
is common cause that the applicant failed to explain the entire 34
days of the lateness and left a substantial period unexplained.
A
decision on condonation is not based on a single factor. While
failure to explain the full period of lateness is serious, it
has to
be considered with other factors. The test for prejudice is the
extent of prejudice on the respondent balanced against the
interests
of the applicant. The prejudice the first respondent stands to suffer
is the inability to
receive
and enjoy the money due to him in terms of the award, pending the
outcome
of the review application. The applicant will lose its right to be
heard. When prejudice on both parties is considered the
unavoidable
conclusion is that the applicant will be non-suited and therefore
suffer more prejudice should this application be
denied.
[5]
The
applicant submitted that it has good prospects of success in the
review application, but the first respondent did not agree.
The test
for prospects of success is not whether the applicant will, but could
succeed. The assessment of the merits of the applicant’s
case
is preliminary and not final.
[4]
The applicant is
required
to show that its prospects of success are at the very least,
reasonable.
[5]
A
preliminary assessment of the applicant’s case reflects that it
could be
successful
in the review application. The applicant’s version and
concessions
made
by the first respondent’s witness on the interim placement
policy, its purpose and the applicant’s promotion policy
point
to the direction of the applicant's success.
[6]
The
applicant submitted that the effect of the award has significant
consequences for it and expressed the need to have the principle
dealt with in the award determined by this court. The award is based
on a collective agreement which is binding on municipalities.
Its
proper application is important for uniformity in labour relations in
local government. When all the relevant factors are considered
it is
in the interests of justice to grant this application so that a
determination can be made on the reasonableness of an award
which has
an effect not only on the parties, but also on a number of
municipalities to which the collective agreement is binding.
The
arbitration award
[7]
The
individual first respondent was employed by the applicant. Before
November 2005 he was a payroll clerk. He was placed as the
officer,
risk and asset management, from 17 September 2003 and again on 16
November 2005.He referred an unfair labour practice
dispute in
teritis of section 186(2) of the LRA to the South African Local
Government Bargaining Council (“the SALGBC”).
The dispute
was arbitrated by the; second respondent (the “arbitrator”)
who had to determine whether the individual
first respondent had
been
promoted to the position of officer risk and asset management (the
impugned position) or he occupied it in terms of the placement
policy.
[8]
The
arbitrator found that when the individual first respondent was placed
in the impugned position, he was elevated from post level
7 to level
6 with no change in his remuneration. He rejected as irrelevant the
applicant’s version that the
salary
levels were subject to salary negotiations at national level and a
decision of the Labour Court. He found that the dispute
before him
was about the
individual
first respondent being remunerated at the level and position he
occupied. His award was that the first respondent had
successfully
proved that the individual first respondent was entitled to the
remuneration and benefits which accompanied his job
level. He ordered
the applicant to pay the individual first respondent an amount of
R44,179.68 which is equivalent to the retrospective
payment of the
difference in remuneration between job level 6 and 7 from 16 November
2005.
Grounds
for review
[9]
The
applicant sought to rely on a number of grounds. Some were admitted
and others were denied by the first respondent. A further
category of
grounds consisted of those which the first respondent only noted. The
denied grounds include the submission that the
award was
unreasonable, and contrary to evidence. Further grounds included the
allegation that the individual first respondent
was placed in the
impugned position as a result of the placement policy in terms of
which the correct salary would only be finalized
as and when the job
evaluation process and categorization of municipalities had done at
national level. So is the submission that
the award subverts the
negotiation process and pose a risk of contradicting an award of the
SALGBC on the
dispute
regarding the placement policy.
[10]
This
award will survive being reviewed and set aside if it is one a
reasonable decision-maker could reach on the, evidence before
the
second respondent.
[6]
The following dictum in Herholdt V Nedbank Ltd (Congress of South
African Trade Unions as amicus curiae) is opposite;
[7]
‘
...For
a defect in the conduct of proceeding to amount to a gross
irregularity as contemplated by section 145(2)(a)(ii), the arbitrator
must have misconceived the
nature of the
enquiry or arrived at an unreasonable result...’.
[11]
In the award the commissioner stated that the issue he had to decide
was whether individual first respondent was placed in
the impugned
position according to the placement policy or he was promoted
internally. In analyzing was elevated from post level
7 to 6. He did
not disclose the manner in which he
elevated
[12]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[8]
the
court enunciated the review test in para 16 as follows:
‘
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him / her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived
at’.
[13]
The arbitrator evaded the principal issue before him. Identifying it
correctly was not enough. It was just the foundation
for all the
other factors including considering all the facts before him and
culminating in a reasonable decision based on such
facts. The
arbitrator failed to make a finding on whether the individual
respondent’s elevation resulted from the operation
of the
placement policy or promotion. Evidence was led on behalf of both
parties on promotion procedures and the placement policy
but the
second respondent rejected as irrelevant submissions on the placement
policy. He found that negotiations at national level
were about
determining appropriate remuneration for various post levels. The
arbitrator gave no reason for finding that the impugned
post fell
outside the realm of the posts which were the subject of the
negotiations at national level. By finding that the individual
first
respondent’s dispute was about him being remunerated according
to the level and position that he is currently occupying
the
arbitrator made a finding which fell outside the scope of the dispute
he said he was required to determine.
[14]
The arbitrator committed a gross irregularity by evading the
principal issue before him, finding relevant evidence to be
irrelevant
and reaching a decision
which
is incongruous with the issue he had to decide. All these
irregularities led him to reach a decision a reasonable
decision-maker
could not have reached on the evidence before him. His
award therefore falls outside the bounds of reasonableness and has to
be
reviewed and set aside.
Conclusion.
[15]
In the premises the following order is made:
[15.1]
The arbitration award issued by the second respondent under case
number ESD 100702 and dated 10 June 2009 is reviewed and
set aside;
[15.2]
The
matter is remitted to the South African Local Government Bargaining
Council to be arbitrated
de novo
by an
arbitrator other than the second respondent.
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Advocate. C E Yeo
Instructed
by:
Fairbridges Inc.
For
the Respondents:
Riaan Schmidt (Union Official)
[1]
Act 66 of 1995 (“the Act”)
[2]
See: Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A).
[3]
See: Van Wyk v Unitas Hospital and Othersr
2008 4 BCLR 442
(CC) at
para [22]
[4]
See:
Mould v
Roopa NO and Others [2003] 1 BLLR 38 (LC)
[5]
See:
SABC v CCMA and Others [2002] 9 BLLR 824 (LAC).
[6]
See: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC) para 110
[7]
[2013] 11 BLLR 1074
(SCA) at para 25
[8]
An unreported judgment under case number JA 2/2012 [2013] ZALAC
dated 4 November 2013