About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 52
|
|
Steve Tshwete Local Municipality v South African Government Bargaining Council and Others (JR346/12) [2015] ZALCJHB 52 (24 February 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Judgment
Case
No: JR346/12
DATE:
24 FEBRUARY 2015
Not
reportable
Of
interest to other judges
In
the matter between:
STEVE
TSHWETE LOCAL
MUNICIPALITY
.....................................................................
Applicant
And
SOTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
.............
First
Respondent
N
MASEKO
N.O
.......................................................................................................
Second
Respondent
SAMWU
obo M
Tibane
..............................................................................................
Third
Respondent
Heard:
5 February 2015
Delivered:
24 February 2015
Summary:
Review – dismissal vs expiry of fixed term contract –
commissioner not providing reasons for ruling that employee
had been
dismissed – reviewed and remitted.
Judgment
STEENKAMP
J
Introduction
[1]
The
applicant, a municipality, seeks to have an arbitration award by the
second respondent, an arbitrator on the panel of the South
African
Local Government Bargaining Council, reviewed and set aside. The
arbitrator ruled, initially, that the employee
[1]
was
dismissed by the Municipality; and subsequently that the dismissal
was unfair. The Municipality seeks to have both the initial
ruling
and the eventual award of 14 December 2011 reviewed and set aside. It
also seeks to set aside a variation ruling by the
same arbitrator
dated 17 January 2012.
[2]
The employee, represented by his trade
union, also brought an application to dismiss the review application.
Both applications were
set down for hearing on the same day. Given
that the review application was now properly before court, the
application to dismiss
it had become moot, save for the question of
its costs.
Background
facts
[3]
The employee, Mr Tibane, was employed as a
personal assistant to the executive mayor from 26 April 2009. His
term as PA was linked
to the tenure of the executive mayor. Upon the
expiry of the latter’s tenure on 30 June 2011 the Municipality
terminated
the employee’s employment. (He was initially
transferred to a different post, but repudiated the transfer
agreement through
his trade union). He says he was dismissed. The
Municipality argues that his fixed term contract expired.
[4]
The employee referred an unfair dismissal
dispute to the Bargaining Council. It was set down for arbitration on
24 October 2011.
The Municipality raised a point
in
limine
that he was not dismissed. The
arbitrator ruled that there was a dismissal and that he had
jurisdiction to hear the unfair dismissal
dispute. He gave no reasons
for that ruling.
[5]
The arbitration proceeded on the merits
some two months later. On 14 December 2011 the arbitrator issued an
award finding that the
dismissal was unfair. In that award, he
reiterates his previous ruling:
“
I
must point out from the onset that this arbitration hearing was
preceded by a hearing where the respondent [the Municipality]
raised
a point
in limine
.
The
said [
sic
] point was in respect of SALGBC’s jurisdiction
or lack thereof. The point was dismissed, and consequently SALGBC was
found
to have had the requisite jurisdiction. Further, it was ruled
that the [employee] has indeed been dismissed from the employ of the
[Municipality]. Having established at the previous sitting that the
[employee] has been dismissed, I must now determine whether
the
dismissal was for a fair reason, and whether it was preceded by a
fair hearing as contemplated by section 188 read with section
192 of
the [Labour Relations] Act.”
[6]
Once again, the arbitrator gave no reasons
for his finding. He proceeded to find that the Municipality did not
lead evidence about
the fairness of the dismissal and that,
therefore, the dismissal was procedurally and substantively unfair.
[7]
The Municipality seeks to have the award
set aside, inclusive of the earlier jurisdictional ruling.
Evaluation
/ Analysis
[8]
Ms
Edmonds
pointed out that, in its notice of motion, the Municipality only
sought to have the award of 14 December 2011 and the variation
ruling
of 17 January 2012 reviewed and set aside. It did not specifically
refer to the jurisdictional ruling of 24 October 2011.
[9]
I think this is too technical an approach.
The award incorporates, and indeed is based on, the jurisdictional
ruling. The Municipality
asks for further or alternative relief. Its
grounds of review sets out in detail that it challenges the
jurisdictional ruling.
That ruling, leading to the December award, is
the very basis of the review. I accept that the challenge to the
jurisdictional
ruling is properly before court.
The
initial ruling: Was the employee dismissed?
[10]
The arbitrator has not given any reasons
for his ruling that the employee was dismissed. His ruling should be
set aside and remitted
for this reason alone.
[11]
It is hard to conceive of a ruling without
reasons that can be reasonable. By definition, it is unreasoned and
therefore unreasonable.
[12]
As
the Labour Appeal Court remarked in
Weder
[2]
:
“
Our
law eschews the process of
ex post facto
provision of reasons for a decision taken, whilst no reasons are
provided when the decisions is made”.
[13]
In
this case, the arbitrator did not even provide reasons for his
jurisdictional ruling when he delivered his written award on 14
December 2011. In the absence of any reasons whatsoever, that ruling
must be reviewed and set aside. As the Supreme Court of Appeal
held
in
National
Lotteries Board
:
[3]
“
The
duty to give reasons for an administrative decision is a central
element of the constitutional duty to act fairly. And the failure
to
give reasons, which includes proper or adequate reasons, should
ordinarily render the disputed decision reviewable”.
[14]
There is also no transcript available of
the October 2011 proceedings. In these circumstances, the matter
should be remitted to
another arbitrator to hear evidence and to
decide afresh – and give reasons for his or her ruling –
on the jurisdictional
point.
The
award on unfair dismissal
[15]
The arbitrator’s finding that the
dismissal was unfair is based squarely on his unreasoned ruling that
he had been dismissed.
Having found that the employee had been
dismissed, he disregarded the Municipality’s explanation and
simply found that the
dismissal must
ipso
facto
have been unfair, as the
Municipality could not provide a fair reason, other than that the
fixed term contract had come to an end.
[16]
This finding was based on an unreasonable
premise. It follows that the award as a whole should be set aside and
remitted to arbitration
afresh.
The
variation ruling
[17]
Ms
Edmonds
readily conceded that the variation ruling should be reviewed. It
contains an inherent contradiction. In the arbitration award,
the
arbitrator ordered the Municipality to pay the employee five months’
remuneration; in the variation ruling, he purported
to quantify that
amount, but based it on six months’ remuneration.
[18]
In any event, given my decision that the
dispute as a whole should be arbitrated afresh, the variation ruling
has become moot.
Conclusion
[19]
The award as a whole, including the initial
jurisdictional ruling and the subsequent variation ruling, must be
reviewed and set
aside.
[20]
There was no transcript available for the
proceedings of October 2011. This Court is not in a position to
substitute its own ruling
for that of the arbitrator. The dispute
must be remitted for a fresh arbitration.
Costs
[21]
With regard to the review application, I
take into account that the dispute has not been finalised; and also
that there is an ongoing
relationship between the Municipality and
SAMWU. In law and fairness, I do not believe that a costs order at
this stage is appropriate.
[22]
Different considerations apply to the
application to dismiss the review application. It has now become
moot; but that is only after
the union had to take a number of costly
steps to force the Municipality to comply with the rules of this
Court.
[23]
The Municipality delivered its review
application on 17 February 2012. The union delivered a notice of
intention to oppose it. The
Municipality did not deliver the record
in terms of rule 7A(6). Only after the union threatened them with an
application to dismiss,
in June 2012, did the Municipality’s
attorneys write to the Bargaining Council to make enquiries about the
record. Nothing
further happened. The union’s attorney, Ruth
Edmonds, wrote to the Municipality’s attorney, Johan Alberts,
again on
5 July 2012. The Council filed a recording on the same day.
A month later, on 6 August 2012, Alberts informed Edmonds that they
had delivered the tapes to the transcribers “on even date”.
By 11 October Edmonds had heard nothing more. She wrote
to Alberts
again. He did not respond. She launched the application to dismiss on
6 November 2012. It is only after that that the
Municipality lodged
the transcription of the record, albeit incomplete.
[24]
In those circumstances, the Municipality
should bear the costs attendant upon the application to dismiss the
review application.
Order
[25]
I therefore make the following order:
25.1
The award under case number MPD 081109,
inclusive of the jurisdictional ruling and the variation ruling, is
reviewed and set aside.
25.2
The unfair dismissal dispute is remitted to
the Bargaining Council (the first respondent) for arbitration
de
novo
before an arbitrator other than
the second respondent.
25.3
The applicant (the Municipality) is ordered
to pay the costs of the third respondent (SAMWU) in the application
to dismiss the review
application.
Anton
Steenkamp
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT: R
Venter
Instructed by
Johan Alberts attorneys.
THIRD
RESPONDENT: Ruth Edmonds (attorney).
[1]
The third respondent, represented by his trade union, the South
African Municipal Workers’ Union (SAMWU).
[2]
MEC,
Department of Education, Western Cape v Weder; Mangena
[2014] 7 BLLR 687
(LAC) para 38, citing
National
Lotteries Board v South African Education and Environment Project
2012 (4) 504 (SCA).
[3]
Supra
para 27.