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[2015] ZALCJHB 236
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Cindi v Commission for Conciliation, Mediation and Arbitration and Others (JR2610/13) [2015] ZALCJHB 236; [2015] 12 BLLR 1207 (LC); (2015) 36 ILJ 3080 (LC) (4 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR
2610/13
DATE: 04 AUGUST
2015
Reportable
In
the matter between:
HADIO
LINAH
CINDI
............................................................................................................
Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATIOIN
.......................................................................
First
Respondents
COMMISSIONER
SEGOKOALI THOKO
N.O
..................................................
Second
Respondent
CAREERS
STAFF SOLUTION (PTY)
Ltd
.............................................................
Third
Respondent
Heard:
21 April 2015
Delivered:
04 August 2015
Summary:
Application to review and set aside the settlement agreement.
Settlement agreement not a decision of the Commissioner but
a
decision reached by consensus between the parties. The role of a
Commissioner is to facilitate a settlement agreement and not
to make
a decision for the parties. A settlement agreement is an outcome
based on the consensus between the parties and not a decision
of a
Commissioner.
JUDGMENT
MOLAHLEHI,
J
Introduction
[1]
The
applicant in this matter is seeking an order to review and set aside
the settlement agreement concluded between her and the
third
respondent. The application is brought in terms of s158 (1) (g) read
with s158 (1) (j) of the Labour Relations Act (the LRA).
[1]
The settlement agreement was concluded at the conciliation process
which was scheduled subsequent to the applicant referring an
unfair
dismissal dispute to the CCMA.
The background
facts
[2]
It is common cause that the applicant was
prior to the termination of her employment contract employed by the
third respondent as
the sales order official. The third respondent is
operating as a temporary employment service provider and is
subcontracted to
UTI which had stationed the applicant at the BMW
warehouse in Midrand.
[3]
The applicant states in her statement of
case that she was during July 2013, made to undertake a polygraph
test at BMW site which
she failed. She was then told not to report at
the BMW site. She then reported at the third respondent’s
premises but was
told by the director not to report for work pending
the third respondent securing a client where she could be posted. She
thereafter
on numerous occasions contacted the third respondent to
find out about progress in securing her posting.
[4]
The applicant approached the third
respondent again during October 2013, after her leave pay and bonus
was paid into her bank account.
On arrival at the third respondent’s
premises she was told that the third respondent did not have work for
her and as a result,
her employment contract had been terminated.
[5]
The applicant was unhappy by what she was
told and accordingly referred an alleged unfair dismissal dispute to
the CCMA. The matter
was subsequently set down for conciliation where
the applicant attended, accompanied by her attorney. The attorney was
however
not permitted to seat in the conciliation process.
[6]
The applicant says that during the
conciliation process the Commissioner informed her that she had no
prospects of success in her
case. It was according to her following
this comment that she signed the agreement which reads:
“
In
full and final settlement of the dispute the Applicant received
R1825-02 from the Road Freight Agency Council on 21 September
2013.”
Grounds of review
[7]
In seeking to review the settlement
agreement the applicant contends that the Commissioner was impartial
in that he inappropriately
persuaded her to sign the settlement
agreement. The applicant further contends that the Commissioner
exceeded his powers in that
he was not required to give advice on the
substantive fairness of the dismissal.
[8]
In relation to the leave pay the applicant
contends that the Commissioner failed to appreciate that the amount
paid was from the
bargaining council and not from the third
respondent and therefore it could not have constituted a settlement
amount.
[9]
The applicant contends in the supplementary
affidavit that she was unduly influenced by the Commissioner to
conclude the agreement
in terms of which she conceded that she was
not dismissed. In this regard she states the following:
“
5.2
The Second Respondent committed misconduct during the proceedings in
that he told me that I do not have a case (there were no
prospects of
success in the unfair dismissal dispute) as I failed to personally
report for duty at the company's premises between
July and October
2013. In so doing the Second Respondent failed to take into our
consideration that the company advised me to stay
at home and they
will contact me once the find another position for me.
5.3 Based on the
above I submit that I have been unduly influenced by the Second
Respondent to enter into a settlement agreement
and had I not been
misrepresented by the Second Respondent I would not have entered into
this settlement agreement. I further submit
that I am being
prejudiced in that I would not have entered into an agreement on the
basis that there was no dismissal and that
I was paid an amount of R
1825.20 in full and final settlement of the dispute a month before
the actual date of my dismissal.”
[10]
Mr
Mabaso, for the applicant argued that the applicant was improperly
induced to conclude the settlement agreement and it was for
that
reason that the court should, as was the case in
Kasipersad
v The Commission for Conciliation, Mediation and Arbitration and
Others
,
[2]
intervene and set the settlement agreement aside. In that case the
Court reviewed, and set aside the conciliation proceedings and
the
settlement agreement. The matter was then remitted for conciliation
afresh to the CCMA.
[11]
In its opposition to the review application
the third respondent contends that the applicant adopted an incorrect
cause of action
as according to it the correct one would have been to
rescind the agreement. The third respondent further contended that
the settlement
agreement could not be the subject of the review
because it had not been made an arbitration award neither does it
constitutes
a ruling by the Commissioner.
Evaluation
[12]
The issue of reviewing the performance
of a Commissioner under section 158 (1) of the LRA received attention
in the case Kasipersaad
(supra)
.
In that case as indicated earlier the Court set aside a settlement
agreement and the certificate of outcome of the conciliation
process.
The court found that the Commissioner exercised an improper influence
in persuading the employee to withdraw his case.
[13]
A
similar situation arose in
Shortridge
v Metal and Engineering Industries Bargaining Council and Others,
[3]
where the Court was faced with having to review and set aside a
settlement agreement. Similar to the present case the settlement
agreement in that case had not been made an arbitration award in
terms of section 142 of the LRA.
[14]
The
Court in dismissing the applicant's application held that the
settlement agreement which has not been made an arbitration award
cannot be reviewed in terms of section 145 of the LRA. The same
approach was followed in
Mavundla
and Others Vulpine Investment Ltd t/a Keg and Thristle and Others
,
[4]
where the court set aside the conciliation proceedings because the
Commissioner had improperly allowed a consultant to represent
one of
the parties during the proceedings. It was for this reason that the
certificate of outcome was set aside. The settlement
agreement was
however not set aside and in this regard the Court had the following
to say:
“
The
concluding of the settlement agreement was not an administrative act
of the commissioner. She did not impose her will on the
parties. The
commissioner's role was to try and procure a meeting of the minds of
the parties so that by agreement between themselves
could be settled.
The settlement agreement is not her decision, it is a recording of
the parties' consensus over the manner in
which they agree to settle
their differences. The role of the commissioner in that settlement
agreement was through conciliation
to procure an offer from the
company that would ultimately be acceptable to the applicants. The
final decision to conclude the
agreement lay solely in the respective
party's hands. They had to decide of their own volition whether to
accept or reject the
offers made and put through the office of the
commissioner. Mr van Zyl, a director of the company, proposed the
settlement on behalf
of the company, and Mavundla and Msweli accepted
the proposal.”
[15]
It
is apparent from the above that the fact that the Commissioner
committed a reviewable conduct during the conciliation process
does
not necessarily vitiate the agreement consequent thereto. In
Malebo
v Commission for Conciliation Mediation and Arbitration
,
[5]
Lagrange J correctly in my view held that:
“
Until
the agreement is made an award it remains simply a settlement
agreement. Any legal force it carries is derived from the ordinary
binding power of a contractual arrangement between the parties. Even
though the agreement may have come into being through the
facilitation of the commissioner, his role in the conclusion of the
agreement does not entail the exercise of any statutory decision
making powers on his part to make an award or ruling which is binding
on the parties. The document embodying the settlement simply
records
what the parties to the dispute have agreed. The arbitrator’s
signature on it confirming that he conciliated it adds
no more legal
force to the document, in my view, except insofar as it affords some
evidence of a third party witnessing the conclusion
of the
agreement.”
[16]
I align myself with those decisions that say
that a settlement agreement that has not been made an arbitration
award in terms of
s142 of the LRA cannot be reviewed. In my view the
correct analysis of cases similar to the present is to appreciate
that the Commissioner
in facilitating a settlement agreement has no
decision-making powers. In this respect it may well be that during
the facilitation
process the Commissioner improperly influences one
of the parties in arriving at a settlement agreement. In that case
the settlement
agreement would be invalid because it would have been
improperly concluded. However, whatever the role and influence the
Commissioner
may have had in the conclusion of the agreement, the
outcome remains the decision of the parties and not that of the
Commissioner.
[17]
In my view, the third respondent is correct in
its contention that the remedy in challenging the agreement that came
into existence
due to the alleged undue influence by the
Commissioner, lies in the common law principles of contract. It is in
this regard trite
that the validity of an agreement in terms of the
general principles of contract can be challenged under the following
grounds:
o
impossibility of performance.
o
duress and/or undue influence.
o
Misrepresentation and/or fraud.
[18]
The
head note in
Gollach
& Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co
.
[6]
is apposite:
“
A
transaction is an agreement between two or more persons either to
end litigation or to prevent litigation resulting from
the
differences between them. It is most closely equivalent to consent
judgment.
Whether
extra- judicial or embodied in an order of Court, it has the effect
of
res judicata
and, like any other contract and any order of
court, made by consent, it may be set aside on the grounds that it
was fraudulently
obtained or on the grounds of
justus error
,
provided the error vitiated true consent and did not merely relate to
motive or the merits of a dispute which it was the very
purpose of
the parties to compromise.”
[19]
The authors Bosch et all, in Conciliation and Arbitration Hand Book
at page 59 in a footnote 74 and in interpreting the above
case say:
“
Settlement
agreements cannot be rescinded based on the merits of the dispute
that the agreement was intended to settle.”
[20]
It would seem on the above principle that even if the award made in
terms of s 142 of the LRA was to be successfully reviewed
in the
context where the settlement agreement was made an award that would
not change the status of the settlement agreement. In
other words the
review would not affect the merit of the settlement. The settlement
would still stand and until set aside on any
of the above grounds
would serve as a bar against any proceedings which may be instituted
relating to the merit of the dispute
which is its subject matter.
[21]
In the present matter it is, common cause that
the settlement agreement did not come about as a result of the ruling
of the Commissioner
neither was it made an arbitration award
subsequent to its conclusion.
[22]
In light of the above I find that there is no
basis upon which the settlement agreement between the parties can be
reviewed. I do
not however believe that it would be fair to allow the
costs to follow the result.
Order
[23]
In the premises the applicant's
application to review the settlement agreement made on 7 November
2013, facilitated by the second
respondent under case number GAJB
26792-13, is dismissed with no order as to costs.
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Mr TS Mabaso of Mabaso Attorneys
For
the respondent: Adv. F Venter
Instructed
by: Van Gaalen Attorneys.
[1]
Sections 158(1) (g) and (j) of the LRA provides that the Court may:
“
(g)
subject to
section
145
,
review the performance or purported performance of any function
provided for in
this
Act
on any grounds that are permissible in law, and (j) deal with all
matters necessary or incidental to performing its functions
in terms
of
this
Act
or any other law.”
[2]
(2003)
24 ILJ 178 (LC).
[3]
(2007)
28 ILJ 2328 (LC).
[4]
(2000)
2 ILJ 22 80 (LC).
[5]
(2010)
Z ALC 97
(15 April 2010).
[6]
1978 (1) SA 914
(AD).