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[2014] ZALCCT 25
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SAMWU obo Jacobs v City of Cape Town and Others (C 701/13) [2014] ZALCCT 25; [2014] 10 BLLR 1011 (LC); (2015) 36 ILJ 484 (LC) (26 May 2014)
REPUBLIC
OF SOUTH AFRICA
REPORTABLE
OF
INTEREST TO OTHER JUDGES
THE LABOUR COURT
OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
CASE
NO: C 701/13
IN
THE MATTER BETWEEN:
SAMWU
OBO T
JACOBS
..............................................................................................
APPLICANT
AND
CITY
OF CAPE
TOWN
..................................................................................
FIRST
RESPONDENT
SALGBC
......................................................................................................
SECOND
RESPONDENT
ADV
C DE KOCK
N.O
..................................................................................
THIRD
RESPONDENT
HEARD:
8 MAY 2014
DELIVERED:
26 MAY 2014
Summary
:
Review – disciplinary hearing in breach of collective agreement
– LRA s 33A --- proceedings null and void.
JUDGMENT
STEENKAMP J
Introduction
[1]
A disciplinary hearing is held outside the
time limits prescribed by collective agreement. Does that make it
null and void?
Background
facts
[2]
The
applicant
[1]
, Ms T Jacobs, was
dismissed by the City of Cape Town. She referred an unfair dismissal
dispute to the South African Local Government
Bargaining Council (the
second respondent). The arbitrator, Adv Coen de Kock (the third
respondent) found that her dismissal was
substantively fair but
procedurally unfair. He did not award any compensation.
[3]
Jacobs seeks to have the award reviewed and
set aside. She argues that the disciplinary hearing is null and void
because it was
held outside of a peremptory time period.
[4]
It is common cause that SAMWU (along with
the other trade union in local government, IMATU) and the City (as a
member of the South
African Local Government Association, SALGA) are
bound to a Disciplinary Procedure and Code Collective Agreement (the
Code). The
purpose of the Code is to “establish a fair, common
and uniform procedure for the management of employee discipline”.
The Code records that it is the product of collective bargaining
concluded in the Bargaining Council and that its application is
peremptory and deemed to be a condition of service.
[5]
Clause 6 of the Code reads as follows:
“
6.1
An accusation of misconduct against an employee shall be brought in
writing before the municipal manager or his authorised representative
for investigation.
6.2
If the municipal manager or his authorised representative is
satisfied that there is prima facie cause to believe that an act
of
misconduct has been committed, he may institute disciplinary
proceedings against the employee concerned.
6.3
The employer shall proceed forthwith or as soon as reasonably
possible with a disciplinary hearing but in any event not later
than
three months from the date upon which the employer became aware of
the alleged misconduct. Should the employer fail to proceed
within
the period stipulated above and still wish to pursue the matter, it
shall apply for condonation to the relevant division
of the SALGBC.”
[6]
It is common cause that, in this case, the
City did not start the disciplinary hearing within three months and
did not apply for
condonation.
[7]
SAMWU and Jacobs argued at arbitration that
the disciplinary hearing was therefore null and void. The arbitrator
found that he did
not have the power to make such an order. Instead,
he found that the dismissal was procedurally unfair for that reason;
but that
Jacobs had not suffered any prejudice. Therefore he did not
grant any compensation.
Grounds
of review
[8]
Mr
Whyte
argued on behalf of SAMWU and Jacobs that the arbitrator exceeded his
powers in terms of s 145(2)(iii) of the Labour Relations
Act
[2]
;
and that, in any event, the award is one that no reasonable
arbitrator could make.
[3]
He
also argued that, in failing to identify and determine the questions
put before him in SAMWU’s referral, the award is
reviewable as
it fails the test set out in
Herholdt.
[4]
Evaluation
/ Analysis
[9]
The arbitrator’s powers are defined
by the LRA, read with the SALGBC’s main agreement and
constitution and the Code.
[10]
Clause 19.1 of the SALGBC constitution
provides that:
“
Despite
any other provision in the [LRA], the Council shall monitor and
enforce compliance of collective agreements in terms of
s 33A of the
Act.”
[11]
Section 33A of the LRA reads:
“
(1)
Despite any other provision in this Act, the bargaining council may
monitor and enforce compliance with its collective agreements
in
terms of this section or a collective agreement concluded by the
parties to the council.
...
(4)(a)
The council may refer any unresolved dispute concerning compliance
with any provision of a collective agreement to arbitration
by an
arbitrator appointed by the council.
...
(8)
An arbitrator conducting an arbitration in terms of this section may
make an appropriate award, including –
...
(f)
any award contemplated in section 138(9).”
[12]
Section 138(9) provides that an arbitrator
may make any appropriate arbitration award in terms of the LRA,
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.”
[13]
It seems clear from these provisions that
an arbitrator acting under the auspices of the Bargaining Council
does have the power
to determine whether the City had complied with
its obligations under clause 6 of the collective agreement. And if it
hasn’t,
that arbitrator has the power to issue a declaratory
order that the City is in breach of the collective agreement. And if
that
is the case, the effect of it is that the disciplinary hearing
is invalid and of no force and effect.
[14]
In this case, the arbitrator mistakenly
ruled that he did not have the power to issue a declaratory order,
even though he correctly
accepted that the City had not complied with
the three month period and did not seek condonation. He thus failed
to determine the
dispute that SAMWU had referred to the Council. That
is a reviewable irregularity.
[15]
SAMWU had raised this issue squarely
upfront. In its referral to conciliation, it alleged that “the
chairperson did not have
jurisdiction” to conduct a
disciplinary hearing. The parties also had the foresight to conduct a
pre-arbitration meeting.
Under the heading, “Issues that [the
arbitrator] is required to decide”, the parties noted:
“
1.
Whether the [City] has complied with the provisions of clause 6.3 of
the disciplinary procedure collective agreement.
2.
In the event of non-compliance with clause 6.3 by the [City], whether
the chairperson of the hearing had jurisdiction to proceed
with the
hearing, in the absence of condonation application with the SALGBC
Metro division.”
[16]
The arbitrator also issued a preliminary
ruling on 18 February 2013 in which he requested both parties to
present him with written
submissions on the following two questions:
“
1.
Whether clause 6.3 has been complied with or not.
2.
If not, what the effect and or impact of such non-compliance on the
current arbitration proceedings and the applicant’s
dismissal
are concerned [
sic
]. More specifically, whether such
non-compliance has the effect that the dismissal is null and void;
whether the non-compliance
can be raised as a procedural issue;
whether the non-compliance can be referred to the SALGBC for a
condonation ruling and if granted,
whether such a ruling would have
cured the non-compliance with retrospective effect.”
[17]
The
question whether the City’s non-compliance with the collective
agreement led to the invalidity of the disciplinary hearing
was thus
squarely before the arbitrator. And in any event, he was required to
determine the real issue in dispute are in the parties.
As Ngcobo J
pointed out in
CUSA
v Tao Ying Metal Industries
[5]
:
“
Consistent
with the objectives of the LRA, commissioners are required to ‘deal
with the substantial merits of the dispute
with the minimum of legal
formalities’. This requires commissioners to deal with the
substance of the dispute between the
parties. They must cut through
all the claims and counterclaims and reach for the real dispute
between the parties. In order to
perform this task effectively,
commissioners must be allowed a significant measure of latitude in
the performance of their functions…
Commissioners must be
guided by at least three considerations. The first is that they must
resolve the real dispute between the
parties. Second, they must do so
expeditiously. And, in resolving the labour dispute, they must act
fairly to all the parties as
the LRA enjoins them to do.
A
commissioner must, as the LRA requires, ‘deal with the
substantial merits of the dispute’. This can only be done by
ascertaining the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is
not
necessarily bound by what the legal representatives say the dispute
is. The labels the parties attach to a dispute cannot change
its
underlying nature. A commissioner is required to take all the facts
into consideration including the description of the nature
of the
dispute, the outcome requested by the union and the evidence
presented at the arbitration… The informal nature of
the
arbitration process permits a commissioner to determine what the real
dispute between the parties is on a consideration of
all the facts.
The dispute and the parties may only emerge once all the evidence is
in.”
[18]
SAMWU argued that the City had acted in
breach of the collective agreement. It is common cause that the City
did not comply with
the three-month time stipulation; that it did not
apply for condonation; that the provisions of the Code are
peremptory; and that
they form part of the employee’s
conditions of service. In deciding that he did not have the power to
issue a declaratory
to the effect that the disciplinary hearing was
null and void, the arbitrator failed to deal with the dispute before
him. He also
exceeded his powers. This had the effect that the
conclusion he reached was so unreasonable that no reasonable
arbitrator could
have reached the same conclusion.
[19]
Mr
Rautenbach
argued for the City, with reference to
Leonard
Dingler (Pty) Ltd v Ngwenya
[6]
,
that disciplinary codes are guidelines that can be applied in a
flexible manner. And indeed, that approach is generally in line
with
the purpose of the LRA. But in
Leonard
Dingler
the court dealt with the application of an internal disciplinary
code. In the case before me, the Code is in the form of a collective
agreement that explicitly gives rise to contractual rights. The same
distinction applies to the other authority cited by Mr
Rautenbach
in support of his argument, namely
Moropane
v Gilbeys Distillers and Vintners (Pty) Ltd,
[7]
dealing with the Code of Good Practice in Schedule 8 to the LRA.
Conclusion
[20]
The arbitrator failed to deal with the
dispute before him. Because of that, he reached a conclusion that was
so unreasonable that
no reasonable arbitrator could have come to the
same conclusion. The award must be reviewed and set aside.
[21]
It would serve no purpose to remit this
dispute to the Bargaining Council. From my reasoning above, it is
clear that the Council
did have the jurisdiction and the powers to
deal with the dispute referred to it. It is also clear that the City
breached the collective
agreement and that had the effect of
nullifying the disciplinary hearing. This court is in as good a
position as the Council to
issue such a declaratory order. But that
is not the end of the matter. Nothing prevents the City from applying
to the Council for
condonation and then reinstituting disciplinary
proceedings against Jacobs.
[22]
With regard to costs, I take into account
that there is an ongoing relationship between the parties. I also
take into account that
this judgment may impact on similar disputes
between them. In law and fairness, I do not consider a costs order to
be appropriate.
[23]
I feel constrained to make one further
obiter
comment.
I agree with the City’s counsel that the effect of these strict
time requirements is not in line with the purpose
and objects of the
LRA. It may have been designed to expedite disciplinary hearings, but
because of its peremptory nature and its
embodiment in contracts of
employment, it will often – as in this case – have the
opposite effect. But that is the
deal that the parties brokered
through collective bargaining. They may have to reconsider their
deal. But that can only be done
through a process of collective
bargaining.
Order
[24]
I therefore make the following order:
24.1
The arbitration award of 29 July 2013 under
case number WCM 071216 is reviewed and set aside.
24.2
The award is replaced with the following
award:
“
1.
It is declared that, by proceeding with Jacobs’s disciplinary
hearing outside of the peremptory three-month period in clause
6.3 of
the Disciplinary Procedure and Code Collective Agreement, and without
having obtained condonation, the City was in breach
of the Code.
2.
The disciplinary hearing in respect of Jacobs is therefore invalid
and of no force and effect.
3.
The City is ordered to reinstate Jacobs into her position
retrospectively to 3 July 2012 with no loss of benefits.
4.
The City must comply with this award within two weeks of today’s
date.”
_______________________
Anton Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
J
Whyte of Cheadle Thompson & Haysom.
FIRST
RESPONDENT:
A
C Oosthuizen SC
Instructed
by Cliffe Dekker Hofmeyr Inc.
[1]
Ms Jacobs was represented by her trade union, the South African
Municipal Workers Union (SAMWU), in these proceedings and at
her
arbitration.
[2]
Act 66 of 1995 (the LRA).
[3]
Sidumo
& ano v Rustenburg Platinum Mines Ltd & ors
[2007] 12 BLLR 1097 (CC).
[4]
Herholdt
v Nedbank Ltd
[2013]
11 BLLR 1074 (SCA).
[5]
(2008) 29
ILJ
2461
(CC) para [65].
[6]
(1999) 20
ILJ
1171 (LAC) paras 44-45.
[7]
[1997] 10 BLLR 1320
(LC) 1325 H-I.