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[2014] ZALCPE 8
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Bezuidenhout t/a DB Bezuidenhout v Pretorius and Others (PR195/13) [2014] ZALCPE 8; (2015) 36 ILJ 211 (LC) (27 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
REPORTABLE
CASE
NO: PR195/13
In
the matter between:
D.B.
BEZUIDENHOUT t/a D.B.
BEZUIDENHOUT
Applicant
and
D.D
PRETORIUS First
Respondent
E.
DIRKS Second
Respondent
S.
MINNIE Third
Respondent
NATIONAL BARGAINING
COUNCIL FOR THE
ROAD FREIGHT AND
LOGISTICS INDUSTRY Fourth
Respondent
V.H. LE ROUX
N.O Fifth
Respondent
Heard: 2 May 2014
Delivered: 27 May 2014
Summary: When evidence
led at the arbitration is not placed before the reviewing court
either in the form of a record or in the
body of the award, the award
may be reviewed and set aside. An adverse costs order may be
granted against an arbitrator who
deliberately breaches his duty to
act impartially and seeks to conceal it by not recording the
arbitration proceedings.
Review: Breach of a
bargaining council’s main agreement
JUDGMENT
LALLIE
J
[1]
This is an application to review and set aside an arbitration award
issued by the fifth respondent (“the arbitrator”)
in
favour of the first, second and third respondents (“the
respondents”). The factual background of this dispute is
that
on 23 February 2010 all the respondents referred a dispute to the
first respondent alleging that the applicant had contravened
clauses
19(1) (a) 21(1) (a), 32 (1) (a) of the fourth applicant’s
collective agreement(“ the main agreement”)
and clauses
4.1 and 4.2 of the agency shop collective agreement. The arbitration
hearing of the dispute was scheduled for 26 October
2010 and held in
the absence of the applicant. An award was served on the applicant on
29 November 2010. The applicant successfully
applied for its
rescission. The matter was rescheduled for arbitration on 1
October 2013, on which date the applicant’s
attorney moved an
application for the fifth respondent to recuse himself because he had
issued the award which had been rescinded
in which made comments on
the applicant’s credibility. The application was dismissed but
the matter was postpones to 19 November
2013, on the recommendation
of the fifth respondent’s son who appeared for all the
respondents.
[2]
On 2 October 2013, the applicant’s attorney addressed a letter
to the first applicant expressing that the applicant was
expecting
the postponement ruling with reasons thereof. When the matter resumed
on 19 November 2013, the fifth respondent refused
to hear the
applicant’s attorney in the applicant’s absence of both
the applicant and his attorney and issued the award
which is the
subject of the present application.
[3]
The applicant sought to rely on a number of grounds which were mainly
based on the manner in which the arbitrator conducted
the arbitration
which led him to reach a decision a reasonable decision-maker could
not reach on the evidence before him. The grounds
include the
arbitrator’s refusal to give the applicant’s attorney an
audience, refusal to recuse himself when he had
made the award which
was rescinded in which he made negative comments on the credibility
of the applicant and his failure to disclose
that the respondents’
representative on 1 October 2013 was his son.
[4]
The award appears to be a standard form in which the arbitrator
inserted information pecular to the dispute before him. He stated
that after a grace period of 30 minutes there was no appearance by
the applicant. He also recorded that the respondents gave evidence
under oath. He ordered the applicant to comply with the collective
agreement(s) of the fourth respondent and to ensure that its
business
and all its employees are registered with the fourth respondent and
to pay the respondents amounts of money specified
in paragraph 5.2 of
the award, in the global amount of R27 189. 09.
[5]
A reviewing court is required to ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the
facts
presented at the hearing and came to a reasonable conclusion. See
Gold
fields Mining SA (Pty) Ltd v CCMA
[1]
.
When
the award is considered in its totality it reflects that the
arbitrator did not consider the facts presented at the arbitration.
The applicant’s unopposed version is that the arbitrator
refused to record the arbitration proceedings mechanically. When
filing the record of the arbitration proceedings the fourth
respondent stated that the arbitration proceedings were not recorded.
The deliberate omission to generate the record rendered this
particular award reviewable as I am without a record of the evidence
led at the arbitration on which the award is based. The arbitrator
stated that the respondents led evidence under oath but I am
denied
the benefit of such evidence. In the absence of the record, I do not
have the benefit of the nature of the evidence. The
arbitrator did
not state even in summary what the evidence entailed. Also missing
from the award is the presence of the applicant’s
attorney at
the arbitration, the submissions he made and the reasons he was given
marching orders by the arbitrator.
[6]
The arbitrator was required in terms of section 138(1) of the Labour
relations Act 66 of 1995 (“the LRA”) to have
conducted
the arbitration fairy and to deal with the substantial merits of the
dispute. He failed to do so. He acted unfairly by
not giving the
applicant’s a legal representative an audience and not giving
reasons for his ruling. What makes the arbitrator’s
conduct
gross is that he did not even mention the legal representative’s
presence and the submissions he made and deliberately
concealed his
gross misconduct by not recording the proceedings. The arbitrator’s
obligation to conduct the arbitration fairly
required him to have
disclosed the relationship between himself and the respondents’
representative who was his son. It further
required him to have
refrained from arbitrating the dispute as he had arbitrated the
dispute before and made adverse findings on
the applicants’
credibility. The arbitrator’s failure to consider the principal
dispute before him, evaluate the facts
presented at the arbitration
led him to reach an unreasonable conclusion.
[7]
The applicant sought a costs order against the fourth and fifth
respondents. Section 162 provides that an order for the payment
of
costs may be made according to the requirements of the law and
fairness. The applicant fulfilled the first requirement because
generally costs follow the result. The unopposed version of the
applicant reveals that it is fair to order the fourth and fifth
respondents to pay the applicant’s costs. The fifth respondent
acted under the auspices of the fourth respondent who allocated
the
arbitration to the fifth respondent at its own peril. The fifth
respondent knew that he had an obligation to act fairly when
conducting the arbitration. He does not have an unfettered discretion
and his powers are spelt out in the LRA. He knew that he
was
committing gross misconduct by not recusing himself and insisting on
arbitrating the dispute for the second time after the
rescission of
his first award in which he made adverse credibility findings against
the applicant. He attempted to conceal his
gross misconduct by
refusing to record the proceedings even against the request of the
applicant’s legal representative.
He was bent on issuing an
award which required the applicant to pay an amount of R27 183. 01 at
all costs. The applicant was compelled
to approach this Court to have
the arbitration unreasonable award reviewed at a substantial cost. It
would be unfair for the applicant
to be out of pocket as a result of
an arbitrator who deliberately acted unreasonable. As an expression
of this Court’s disapproval
of the conduct of arbitrators who
abuse the positions of trust they are appointed to in terms of the
LRA the fourth and fifth respondents
are ordered to pay the
applicant’s costs on the attorney and client scale.
[18]
In the premises, the following order is made:
18.1
The arbitration award issued by the fifth respondent under case
number PE 34/10399/09 and dated 3 December
2013 is reviewed and set
aside.
18.2
The matter is remitted to the fourth respondent to be arbitrated
de
novo
by an arbitrator other than the fifth respondent.
18.3
The fourth and fifth respondents are ordered to pay the applicant’s
cost on the attorney and
client scale, jointly and severally one
paying the other to be absolved.
___________________________________
Lallie J
Judge of the Labour
Court of South Africa
APPEARANCES
For
the Applicant: Mr
Potgieter of Potgieter Attorneys
For
the Respondents: No appearance
[1]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).