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[2015] ZALCJHB 142
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Sedibeng District Municipality v Petlane and Others (J898/14) [2015] ZALCJHB 142; (2015) 36 ILJ 2364 (LC) (6 May 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Reportable
CASE
NO: J 898/14
In
the matter between:
SEDIBENG
DISTRICT
MUNICIPALTY
Applicant
And
MOABI
MOSOTHO
PETLANE First
Respondent
COMMISION
FOR CONCILIATION Second
Respondent
MEDIATION
AND ARBITRATION
MARGARETH
SMITH
N.O.
Third
Respondent
Heard:
14 January 2015
Judgment:
06 May 2015
Summary:
A failure to attend arbitration
proceedings, pending an application to this Court to stay such
proceedings, should not prevent a
commissioner from proceeding with
such arbitration and such application should not constitute good
cause for the rescission of
a default award.
JUDGMENT
MTHOMBENI
AJ.
Introduction
[1] This
is an application for the reviewing and setting aside of a default
arbitration award (“the award”),
dated 4 December 2013,
made by the third respondent; the reviewing and setting aside of a
ruling, dated 1 April 2014, made by the
third respondent refusing the
rescission of the award; and staying the enforcement of the award,
pending the judgment of this Court.
The application is opposed.
[2] The
third respondent concluded in her award that the applicant had
dismissed the first respondent and that
the dismissal was
procedurally and substantively unfair.
Preliminary
Issues
[3] The
first respondent served and filed its answering affidavit in
accordance with the Rules of this Court, while
the applicant delayed
in serving and filing its replying affidavit and made no application
for condonation.
[4] The
applicant failed to file and serve a record of the rescission hearing
as envisaged by Rule 7A (6).
Background
[5] On
8 May 2009, the applicant and the first respondent entered into a
fixed-term contract of employment, commencing
form 1 April 2009 until
28 February 2012. In terms of the contract, the applicant employed
the first respondent as an Executive
Director: Corporate Services.
[6] On
2 February 2012, the applicant appointed the first respondent as an
acting Executive Director: Social Services
with effect from 1 March
2012 until 30 June 2012.
[7] At
the expiry of last-mentioned contact of employment, the first
respondent applied for the positions of Executive
Director: Corporate
Services and Executive Director: Social Services. He was shortlisted
and interviewed, but he was not appointed.
[8] Aggrieved
by this, the first respondent referred a dispute to the second
respondent for arbitration, claiming
unfair dismissal.
[9] The
second respondent scheduled the arbitration hearing for 20, 21 and 22
November 2014.
[10] Upon
application by the first respondent, the third respondent issued
subpoenas to certain individuals. The
applicant, being of the view
that the subpoenas were not necessary, on 19 November served and
filed an urgent application seeking
an order setting the subpoenas
aside.
[11] On
20 November 2014, the third respondent and the first respondent were
present at the arbitration hearing,
but the applicant failed to
appear or to be represented at the hearing. The first respondent
advised the third respondent that
the applicant had on the eve of the
arbitration hearing served him with an urgent application to this
court for an order,
inter alia
, to stay the arbitration
proceedings pending the hearing of that application. This
notwithstanding, the third respondent proceeded
in the applicant’s
absence and later made an award in which she concluded that the
applicant had dismissed the first respondent
and that the dismissal
was procedurally and substantively unfair.
[12] On
the same day, Shaik AJ called the first respondent and requested him
to attend at court on the following
day. However, the first
respondent did not attend, for he had been advised on his way to
court that the applicant had withdrawn
its application.
[13] The
applicant made an application the second respondent for the
rescission of the award. The third respondent
refused to grant
rescission of the award.
[14] Aggrieved
by this, the applicant brought this application.
Grounds
of Review
[15] The
applicant made the following submissions:
15.1
The third respondent was biased against it and her conduct was
actuated by malice in that she had proceeded
with the arbitration
hearing while she was aware that the applicant had brought an urgent
application to this court.
15.2
The third respondent’s conduct in this regard was grossly
irregular.
15.3
The award was improperly obtained in that the first respondent gave
this court an impression that he would
attend, while he knew that the
arbitration hearing had been concluded.
15.4
The third respondent’s refusal to grant the rescission of her
award was not supported by evidence in
that the applicant’s
pending urgent application indicates that it was not in wilful
default. In the same vein, the third
respondent stated that the
applicant had some prospects of Success.
Applicable
Legal Principles
[16] Clause
11.4 of this court’s Practice Manual (“the Manual”)
states that:
“
Where the
respondent… has filed its opposing affidavits outside the time
period set out in the rules, there is no need to
apply for
condonation for the late filing of such affidavits unless the party
upon whom the affidavits are served files and serves
a Notice of
Objection to the late filing of the affidavits. The Notice of
Objection must be served and filed within 10 days of
the receipt of
the affidavits after which the right to object shall lapse.”
[17] From
this perspective, the first respondent’s contention that the
applicant filed its replying affidavit
outside the time limit has no
merit, considering that the first respondent has failed to file and
serve a Notice of Objection.
[18] It
is apposite to mention that the Manual is not a substitute for the
Rules of this court, but it concerned
chiefly with the manner in
which the Rules are observed in the daily functioning of this court
and what is expected of the litigants
and the representatives.
[19] While
Rule 7A requires the applicant to file and serve a record of the
rescission proceedings and it has failed
to do so, I am, nonetheless,
able to determine the issues
ex facie
the rescission ruling
and the record of the application for review without a record of the
rescission proceedings.
[20] The
test for the review of arbitration awards is encapsulated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
(“the
Sidumo test”). This Court must, therefore, determine whether
the decision reached by the third respondent is one
that that a
reasonable commissioner could not reach.
[21] It
is trite that an application to stay any proceedings should not,
prior to an order by a relevant court
to stay such proceedings,
prevent the concerned presiding officer from proceeding with a
hearing.
[22] Section
138 (5) (b) of the Labour Relations Act 66, 1995 (“the LRA”)
stipulates that:
“
If a party to the
dispute fails to appear in person or to be represented at the
arbitration proceedings, and that party had not
referred the
dispute
to the Commission, the commissioner may-
(i) continue
with the arbitration proceedings in the absence of that party; or
(ii) adjourn
the arbitration proceedings to a later date.”
[23] It
is also well established in this Court that Section 138 (5) (b)
clothes a commissioner with discretion.
When exercising such
discretion, the third respondent stated in her award that:
“
The applicant
provided me with an application served by the respondent on the eve
of the Arbitration hearing, i.e. 19 November 2013,
requesting the
Labour Court to suspend the proceedings and for the subpoenas issued
against the witnesses to be rescinded. The
applicant opposed the
application in the Labour Court. The application was not yet heard at
the time of the commencement of the
arbitration process nor was a
Court order served on me and/or the CCMA preventing me from
continuing with the arbitration process.
The respondent did not
attend the process even after granting them a waiting period of more
than 30 minutes. Based on the above
information elected to proceed in
the absence of the respondent with the arbitration hearing in terms
of
Section 138
(5) (b) (i) of the
Labour Relations Act 66 of 1995
.”
[24] In
my view, the third respondent exercised her discretion judicially,
for there was no basis on which she
could have invoked
Section 138
(5) (b) (ii). The applicant never proffered her any explanation for
its absence. Even if it did, an urgent application to this
court to
stay the arbitration proceedings would not, in my view, without a
court order justify an adjournment of the proceedings
to a later.
[25] Thus,
the applicant’s contention that the third respondent was biased
against it and had malice is misplaced
cannot support a reviewable
irregularity by the third respondent.
[27] In
terms of
Section 145
(2) (b) of the, one of the grounds of review is
that an award has been improperly obtained. In this respect, the
applicant relies
on the allegation that the first respondent created
a false impression on Shaik AJ that he would be present at court at
the hearing
of the applicant’s urgent application, while he was
aware that the subject matter of that application had been disposed
of
by the third respondent.
[28] I
find this submission preposterous, for in my view in the
circumstances the first respondent’s undertaking
in this regard
had not influenced the third respondent to make an award in the first
respondent’s favour.
[29] This
court has a dearth of jurisprudence on
Section 145
(2) (b). In this
connection, Maserumule AJ in
Moloi
v Euijen and Others
[2]
stated
that:
“
The grounds of
review set out in the section distinguishes between misconduct by the
commissioner
(section 145
(a) (i) and the improper obtaining of an
award as a separate ground of review (section n145 (2) (b).In my
view, the latter subsection
contemplates a situation where the one
party to the arbitration, through fraud or other improper means,
obtains an award in his
or her favour. This can be in the form of a
bribe or by misleading and false or fraudulent representation which
lead to an award
being granted in that party’s favour.”
[30] In
Shoprite
Checkers (Pty) Ltd v Ramdaw NO and Others
[3]
,
Wallis AJ, when considering the powers of review in terms of
Section
145
of the LRA which this court enjoys in respect of arbitration
awards made by commissioners stated the following concerning
Section
145
(2) (b):
“
Reverting to the
general principles governing reviewability of awards the last
situation is the case where an award has been improperly
obtained…
In my view, if one looks at the structure of section 33 (1) of the
Arbitration Act it is clear that this head
of review covers matter
which relate primarily, if not entirely, to conduct on the part of
the successful party to the arbitration
which would justify the
setting aside of the award. Thus an award procure through fraud or
the subordination of perjury could be
set aside on this ground.”
[31] From
this vantage point, in my view, as stated earlier herinabove,the
alleged conduct by the first respondent
cannot be impugned as to
render the award reviewable as contemplated in Section 145 (2) (b).
[32] Concerning
the application for the review of the rescission ruling, the
applicant is reliant on the allegation
that the ruling is not
supported by evidence and that the applicant was not in wilful
default, for the application for the stay
of the arbitration
proceedings was pending in this court.
[33]
In
Shoprite Checkers
[4]
the
Labour Appeal Court held that:
“
Section 144 must
be interpreted so as to also include good cause as a ground for the
rescission of a default award. Accordingly,
a commissioner may
rescind an arbitration award under section 144 where a party shows
good cause for its default…The test
for good cause in an
application for rescission normally involves the consideration of at
two factors. Firstly, the explanation
for the default and secondly
whether the applicant has a
prime facie
defence.”
[34] While
the third respondent had not approached the application for
rescission on this basis, she found that
the applicant was in wilful
default, her conclusion was, nevertheless, reasonable.
[35] In
my view, the applicant was in flagrant disregard of the rules of the
second respondent. Neither the applicant
nor its representatives
brought an application for a postponement of the arbitration hearing
as contemplated in Rule 23. As indicated
hereinabove, an application
to this court to stay the arbitration proceedings could not have
prevented the third respondent from
proceeding without a court order
barring her from doing so.
[36] In
this connection, the third respondent stated the following in her
award:
“
The applicant
argued that the notice of set down wasn’t properly served on
the applicant. The documents provided by the respondent
however
submitted that Mr. Laxa collected the notice of set down on the 7
th
November 2013. This was not disputed. It is evident that the
applicant wanted to interdict the process, NOT because of the alleged
insufficient notice, but due to the subpoenas that were issued by the
CCMA. The applicant was fully aware of the fact that the
arbitration
hearing was set down for the 20
th
-22
nd
November 2013. It did not apply for a postponement. I agree with the
respondent that the applicant could have addressed the issue
of the
inadequate notice in an application for postponement, instead of
running to the Labour Court to have the subpoenas set aside.
The
applicant made this abundantly clear in its letters. No Court order
was filed (sic) on the CCMA or the Commissioner interdicting
same
from continuing with the process, it is thus my view that the
applicant was in wilful default from attending the arbitration
process.”
[37] The
applicant contended that the third respondent had mentioned in her
rescission ruling that the applicant
carried some prospects of
success. However, the applicant does clarify why it considers this to
be a reviewable ground. This is
just a bald statement which does not
specify the alleged defect on which the applicant seeks to rely. It
is incumbent on an applicant
in a review application to establish
clearly the grounds of review. (See
Naidoo v NBCCI
[2012] 9 BLLR
915
(LAC).
[38] The
applicant did not pursue in this application its contention that it
had not been properly served with
a notice of the arbitration
hearing. However, its explanation for the default is not reasonable.
[39] I
do not propose to deal with the applicant’s prospects of
success. Suffice to state the third respondent
concluded the
applicant carried some prospects of success.
[40] From
this background, in my view the third respondent correctly determined
that the applicant did not show
good cause as the explanation for the
default was unreasonable. To fortify my view in this regard, in
MM
Steel Construction CC v Steel Engineering and Allied Workers Union of
SA and Others
[5]
the
Labour Appeal Court stated that:
“
Those two
essential elements ought nevertheless not to be assessed mechanically
and in isolation. While the absence of one of them
would usually be
fatal, where they are present they are to be weighed together with
relevant factors in determining whether it
should be fair and just to
grant the indulgence.”
[41] To
conclude, the third respondent’s award and ruling were not so
unreasonable that no reasonable decision
maker could have come to the
same conclusion.
[42] The
applicant has displayed a cavalier attitude throughout the
arbitration proceedings and this application,
while it enjoyed
eminent legal representation. Thus, there is no reason in law and
fairness why the applicant should not follow
the result.
Order
[43] I,
accordingly, make the following order:
43.1 The
application for the review of the rescission ruling is dismissed;
43.2 The
application for the review of the arbitration award is dismissed; and
43.3 The
applicant is ordered to pay the first respondent’s costs.
M
Mthombeni
Acting
Judge of the Labour Court
Appearances
For
Applicant: Advocate M L Phiyega.
Instructed
by: Seleka Attorneys.
Respondent
appearing in Person.
[1]
[
2007]
BLLR 1087
(CC) para 110
[2]
[1997] 8 BLLR 1022 (LC)
[3]
[2000] 7 BLLR 835 (LC)
[4]
Supra
at page 917
[5]
(1994) 15 ILJ 798 (LAC)