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[2014] ZALCPE 2
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Border Rugby Football Union v Mjiji (P 189/12) [2014] ZALCPE 2 (7 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Case
No: P 189/12
DATE:
7 FEBRUARY 2014
REPORTABLE
In
the matter between:
BORDER
RUGBY FOOTBALL UNION
…...................................
APPLICANT
And
PINDILE
LEON
MJIJI
..................................................................
RESPONDENT
HEARD:
30 JANUARY 2014
DELIVERED:
7 FEBRUARY 2014
Summary:
An arbitrator who refused to determine an issue which forms part of
his or her terms of reference commits gross misconduct
which renders
his or her award reviewable.
Review
in terms of section 33 of the Arbitration Act.
JUDGMENT
LALLIE,
J
Introduction
[1]
The applicant employed the first respondent in 2002 as a club
coordinator. In 2006 it entrusted him with the responsibility
of
being a fixture manager. The first respondent was suspended from work
on 10 September 2011 and a disciplinary enquiry was held
into
allegation of misconduct he was suspected to have committed. A number
of charges were proffered against him. Some were withdrawn
and he was
acquitted of others. He was found guilty of gross negligence in
handling the fixture and log lists and dismissed. The
first
respondent’s internal appeal was dismissed. In terms of the
first respondent’s contract of employment the next
avenue open
to him was referring his dismissal dispute to private arbitration.
[2]
In compliance with provisions of the
Arbitration Act 42 of 1965
the
applicant and the first respondent had to reach an agreement on the
arbitrator and his or her terms of reference. They appointed
the
second respondent. They further agreed that the issues the second
respondent was required to determine would be in the pleadings.
Part
of the agreement was that the arbitration award would be final and
binding. The second respondent issued the arbitration award
which
forms the subject matter of this application.
Point
in limine
[3]
The first respondent challenged the jurisdiction of this court over
the current proceedings on the basis of the agreement between
himself
and the applicant that the decision of the second respondent would be
final and binding. Opposing the point in limine the
applicant
correctly relied on
section 33
of the
Arbitration Act and
a number of
cases which I will refer to later in this judgment.
Section 33
of the
Arbitration Act provides
as follows:
“
Setting
aside of award.-(1) Where-
(a)
any member of an arbitration tribunal has misconducted himself in
relation to his duties as arbitrator or umpire; or
(b)
an arbitration tribunal has committed any gross irregularity in the
conduct of the arbitration proceedings or has exceeded its
powers; or
(c)
an award has been improperly obtained, the court may, on the
application of any party to the reference after due notice to the
other party or parties, make an order setting the award aside’
In addition, Section 157 of the Labour Relations Act (the
LRA)
provides that the court referred to in the
Arbitration Act is
the
Labour Court, when an arbitration is conducted under the latter Act
in respect of any dispute that may be referred to arbitration
in
terms of the LRA.
[4]
The agreement by the applicant and the first respondent that the
award would be final and binding did not oust the provisions
of
section 33
of the
Arbitration Act. The
finality meant that the award
would not be subject to an appeal. In Telecordia Technologies Inc v
Telkon SA Limited
1
which was referred to with approval in Herholdt v Nedbank
2
it was held that by agreeing to arbitration, parties to a dispute
waive their right to appeal. It is a right they may not reclaim
even
by agreement. The first respondent’s point in limine has no
legal basis and is therefore dismissed.
The
arbitration award
[5]
The second respondent recorded that the pleadings reflected that he
was required to determine whether the first respondent’s
dismissal was substantively fair. He was further required to
determine whether the respondent was entitled to introduce new
evidence
in order to revive a charge the applicant was found not
guilty of at the disciplinary enquiry. The arbitrator took into
account
that the chairperson of the disciplinary enquiry acquitted
the first respondent of the charge to which entailed conducting
business
during working hours (charge 2) and dishonesty in the work
place. He made a finding that the applicant was not entitled to
subject
the first respondent to a second disciplinary enquiry. As the
first respondent was found not guilty of charge 2, the charge fell
outside his terms of reference. The arbitrator found no dishonesty in
the manner the first respondent dealt with the log and concluded
that
the first respondent’s dismissal was substantively unfair and
reinstated him with retrospective effect
.
Grounds
for review
[6]
The applicant submitted that the second respondent committed
misconduct, numerous gross irregularities and exceeded his power.
He
disregarded relevant and material evidence. A further criticism of
the award is based on the manner in which the second respondent
dealt
with facts, evidence and legal principles. The applicant also sought
to rely on the second respondent’s failure to
determine the
issues articulated in the pleadings.
[7]
I will firstly consider whether the second respondent committed the
gross irregularity of failure to determine the issues articulated
in
the pleadings. The parties agreed that the issues the second
respondent had to determine would be in the pleadings. The pleadings
consisted of the first respondent’s statement of case and the
applicant’s statement of defence and counter claim. In
stating
the issues he was required to determine, the second respondent
recorded that from the pleadings filed it was clear that
the issue he
was required to determine was whether the applicant’s dismissal
on 11 April 2011 was substaively fair. The recordal
is incorrect as
it implies that the dismissal is for the acts of misconduct the first
respondent was found guilty of at the disciplinary
enquiry. It
reduces the extent of the power vested in him by the agreement. A
proper reading of the pleadings reflects that the
issue before the
second respondent went beyond the substantive fairness of the first
applicant’s dismissal on 11 April 2011
and included charge 2
which the first respondent was found not guilty of at the
disciplinary enquiry. Even when it is considered
that the second
respondent stated the issue before him in a nut shell without
repeating every item he had to make a ruling on his
summary fails to
reflect the real issue before him.
[8]
Another ground the applicant sought to rely on is the second
respondent’s finding that the applicant was not entitled
to
subject the first respondent to a second disciplinary enquiry and
that since the first respondent was found not guilty of charge
2 it
did not fall within his terms of references to adjudicate the charge.
The following dictum in Stocks Civil Engineering (Pty)
Ltd v RIP NO
and Another
3
is apposite:
“
It
is equally explicit in the agreement under which an arbitrator is
appointed that he is fully cogniscent with the extent of a
limit to
any discretion or powers he may have. If he is not and sum ignorance
impact upon his award, he has not functioned properly
and his award
will be reviewable”.
[9]
The agreement between the applicant and the first respondent which
granted the second respondent authority to arbitrate and
drew the
parameters of his powers granted the second respondent power to
arbitrate issues in the pleadings. In the applicant’s
statement
of defence it stated unequivocally that it intended to resurrect and
proceed with charge 2 as new evidence had come to
the fore after the
first respondent’s dismissal that he had been dishonest in that
he was in Mthatha on or about 16 August
2011. As the first
respondent’s power was prescribed in the agreement he had no
discretion to identify the issues which fell
within his terms of
reference. They had already identified in the pleadings. As charge 2
was resuscitated by the applicant it fell
within his terms of
reference and the second respondent was obliged to adjudicate it. By
refusing to adjudicate it he purported
the exercise a discretion he
did not have. The power to identify issues which fell within his
terms of reference fell outside the
purview of his authority. He
exceeded his power.
[10]
The manner in which the second respondent defined the issue he was
required to determine and his finding on charge 2 indicated
that he
was not fully cognescent with the extent of his power as defined in
the agreement. That had a direct effect on his award,
constituted a
gross irregularity and rendered the award reviewable.
[11]
The first respondent opposed this application armed with an award in
his favour. He also did not act unreasonably by opposing
it. Granting
a costs order will, in the circumstances be inappropriate.
[12]
In the premises the following order is made:
12.1
The point in limine is dismissed.
12.2
The arbitration award issued by the second respondent dated 5 April
2012 is reviewed and set aside.
12.3
The matter is remitted to the second respondent for the continuation
of the arbitration in accordance with his terms of reference.
Lallie,
J
Judge
of the Labour Court of South Africa
APPEARANCE:
For
the Applicant: Advocate Gauss
Instructed
by: Van Rooyen Efstratiou Attorneys
For
the first Respondent: Mr Mqanto of Mzwai Mqanto Attorneys
1
(2006)
SA 266
at 292 A-C
2
[2013]
11 BLLR 1074
(SCA) at 1079 A-B
3
(2002)
ILJ 358 LAC