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[2014] ZALCPE 25
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NEHAWU obo James v General Public Service Sectoral Bargaining Council and Others (P423/2011) [2014] ZALCPE 25 (26 August 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P423/2011
In
the matter between:
NEHAWU
obo LUPHUMLO
JAMES Applicant
and
GENERAL
PUBLIC SERVICE SECTORAL
BARGAINING
COUNCIL
First Respondent
JOHN
CHEERE ROBERTSON
N.O
Second Respondent
DEPARTMENT
OF SAFETY AND LIAISON
Third Respondent
Heard:
27 February 2014
Delivered:
26 August 2014
Summary:
An award may be reviewed and set aside when the arbitrator has
exceeded his or her powers.
Review
section 145 of the LRA – Dismissal for operation of the Public
Service Act.
JUDGMENT
LALLIE,
J
Introduction
[1]
In this application, the applicant seeks an order reviewing and
setting aside an arbitration award of the second respondent
(‘the
arbitrator’) it is opposed by the third respondent.
Factual
background
[2]
The individual applicant, Mr James (‘James’), was
employed by the third respondent as a community liaison officer.
He
was informed in a letter dated 24 August 2009 that the decision that
he be discharged from the third respondent as from 30 June
2009 was
confirmed. The confirmation was made in terms of section 17 of the
Public Service Act 103 of 1994 as a result of absenting
himself from
his official duties without permission from 20 April 2009 to 29 June
2009. Aggrieved by the termination of his services,
the applicant
challenged the decision at the first respondent where the arbitrator
issued the award the applicant seeks this court
to review and set
aside.
[3]
This application was filed 18 days late. Although the third
respondent initially opposed the condonation application, it did
not
pursue the opposition when this matter was argued. The extent of the
delay is not excessive. The explanation proffered for
the lateness is
reasonable and the applicant has good prospects of success. The
applicant would suffer more prejudice than the
third respondent in
the event of the application being refused. I am satisfied that the
applicant has shown good cause.
The award
[4]
The third respondent submitted that James absented himself from work
without authority from 11 May 2009 to 29 June 2009. The
applicant
denied and submitted that his absence from work was interrupted as he
performed his duties on some days during the impugned
period. The
applicant submitted that James was on duty from 11 May 2009 to 14 May
2009, 28 May 2009 to 29 May 2009 and on 29 June
2009. He conceded to
being absent without permission from 15 May 2009 to 27 May 2009 and
from 30 May 2009 to 28 June 2009. He was
however not absent from work
without permission for a period exceeding one calendar month.
Notwithstanding the dates referred to
in the letter confirming the
decision to discharge James from the third respondent the arbitrator
found, based on the evidence,
that the relevant period for purposes
of the dispute before him was 11 May to 29 June 2009. The arbitrator
accepted that James
attended official meetings on 14 May 2009. It is
common cause that James reported for work on 29 May 2009. The
arbitrator concluded
that at no time was James away from work for a
period exceeding one calendar month as required by the Public Service
Act for his
services to be automatically terminated by operation of
the law.
[5]
The arbitrator found that James was absent from work without
permission for the period 20 April 2009 to 13 May 2009, 15 May
2009
to 27 May 2009 and 30 May 2009 to 28 June 2009. The arbitrator
further found that James’ conduct constituted absenteeism
as
envisaged in Resolution 2 of 1999 (as amended) and it amounted to
serious misconduct. He concluded that James’ services
were not
terminated by operation of section 17 (3)(a)(i) of the Public Service
Act but his conduct amounted to serious misconduct.
He also found his
dismissal procedurally unfair but substantively fair and granted him
compensation equivalent to one month’s
remuneration calculated
at his rate of remuneration as at 30 June 2009.
Grounds
for review
[6]
The applicant submitted that the arbitrator exceeded his powers in
dealing with the fairness of the termination of his services
and
making a pronouncement on the fairness of his dismissal as he was
required to determine only the validity of the letter terminating
his
services. Alternatively, he erred in finding the dismissal
substantively fair when comprehensive discipline was not applied.
Dismissal was not appropriate. The applicant based its further attack
on the award on the arbitrator’s decision to rely on
Resolution
2 of 1999 as no evidence in relation to the Resolution was tendered
at the arbitration.
The
law
[7]
Section 145 (2)(a)(iii) of the Labour Relations Act 66 of 1995 (‘the
LRA’) recognises, as a ground for review, the
arbitrator’s
conduct of exceeding his or her powers. In
Herholdt
v Nedbank Ltd (Congress of South African Trade union as Amicus
Curiae)
,
[1]
the court expressed the following view:
‘
In summary, the
position regarding the review of CCMA awards is this: A review of a
CCMA award is permissible if the defect in the
proceedings falls
within one of the grounds in section 145 (2) (a) of the LRA. For a
defect in the conduct of the proceedings to
amount to a gross
irregularity as contemplated by section 145 (2) (a)(ii), the
arbitrator must have misconceived the nature of
the inquiry or
arrived at an unreasonable result’.
In
Gold
Fields Mining SA (Pty) Ltd
(Kloof
Gold Mine)
v
CCMA and Others,
[2]
the
Court confirmed that an award of a commissioner who has misconceived
the nature of the enquiry is susceptible to review.
[8]
The arbitrator identified the dispute before him correctly as he
recorded that the issue to be determined was whether James
was
dismissed for unknown reasons or his services were terminated by
operation of the law. His powers were deliberately limited
to
identifying the reason for the termination of James’ services
only as each reason for the termination of his services
is governed
by a different regime of conflict resolution. A dispute arising from
a dismissal for unknown reasons falls within the
jurisdiction of the
first respondent while termination of services by operation of the
Public Service Act falls under the jurisdiction
of the Labour Court.
The arbitrator had no jurisdiction to determine the validity of the
letter confirming the termination of James’
services by
operation of the Public Service Act. He therefore exceeded his powers
by making a determination of the fairness of
the dismissal for
absence from work without the necessary authority.
[9]
The arbitrator had no authority to pronounce on the fairness of the
dismissal for James’ absence from work without authority
as
envisaged in Resolution 2 of 1999. The parties before him did not
base their respective cases on the said Resolution. He decided
to
find James guilty of a charge that he did not afford him an
opportunity to defend himself against. He acted in breach of his
duty
to deal with the dispute before him fairly as envisaged in section
138 of the LRA. In
Yao
Ying Metal Industry (Pty) Ltd v Pooe NO and Others,
[3]
it was held as follows:
‘
An award may also
not be founded on matters that occur to the arbitrator but that the
parties have had no opportunity to address.
That is simply an
application of the principles of natural justice, and in particular
the right to be heard, that are now formalized
in the Promotion of
Administrative Justice Act 3 of 2000 (“PAJA”)’.
[10]
The award is defective as the arbitrator exceeded his powers and
committed gross irregularities during the arbitration thus
rendering
his award reviewable.
[11]
Further the award stands to be reviewed and set aside because the
arbitrator’s decision is incorrect.
SA
Rugby Players’ Association (SARPA) & others v SA Rugby
(Pty) Ltd & others, SA Rugby (Pty) v SARPY & another
[4]
.
Apolo
[5]
[12]
The third respondent acted unreasonably in opposing this application
when the arbitrator’s decision is palpably wrong
and the defect
in the award is obvious. Both the law and fairness in the
circumstances justify a costs order against the third
respondent.
[13]
In the premises, the following order is made:
13.1
The application for condonation of the late filing of the review
application is granted.
13.2
The arbitration award issued by the second respondent under case
number GPBC 62/2010 is reviewed and set
aside.
13.3
The matter is remitted to the first respondent to be arbitrated
de
novo
by an arbitrator other than the second respondent.
13.4
The third respondent pay the applicant’s costs.
___________
Lallie
J
Judge
of the Labour Court of South Africa
Appearance
For
the Applicant:
Mr Ningiza
of Ningiza Horne Incorporated
For
the Third Respondent: Advocate Beningfield
Instructed
by:
The State Attorneys
[1]
2013 11 BLLR 1074
(SCA) at para 25.
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para 22.
[3]
[2007] 7 BLLR 583
(SCA) at para 6.
[4]
[2008] 9 BLLR 845 (LAC)
[5]
[2013] 5 BLLR 434
(LAC) at [19]