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[2015] ZALCJHB 274
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Mangaung Metro Municipality v SAMWU obo Senoko and Others (J 2095/13, JR 1828/13) [2015] ZALCJHB 274 (27 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: J 2095/13, JR 1828/13
DATE:
27 AUGUST 2015
Not
reportable
In the matter
between:
MANGAUNG METRO
MUNICIPALITY
.......................................................................
APPLICANT
And
SAMWU OBO
A.S.SENOKO
...........................................................................
FIRST
RESPONDENT
ABRAHAM NTHAKO
N.O
.........................................................................
SECOND
RESPONDENT
SALGBC
............................................................................................................
THIRD
RESPONDENT
Heard: 13 August
2015
Delivered: 27
August 2015
JUDGMENT
VAN NIEKERK J
[1] This is an
application to review and set aside an arbitration award issued by
the second respondent, to whom I shall refer as
‘the
arbitrator’. In his award, the arbitrator ordered the applicant
to reinstate Mr Seneko, on whose behalf the first
respondent acts.
[2] The dispute
before the arbitrator was whether or not the applicant had acted
unfairly toward the employee by not reinstating
or re-employing him
in terms of a collective agreement. The first respondent relied on s
186 (2) (a) of the LRA which provides
that it is an unfair labour
practice to fail or refuse to ‘reinstate or re-employ a former
employee in terms of any agreement.’
The pre-arbitration
agreement concluded by the parties formulated the dispute in the
following way:
The commissioner
must determine whether the respondent has committed an unfair labour
practice i.t.o section 186 (2)(c) of the LRA
for refusing to
re-employ Mr Seneko i.t.o the ‘LLF’ agreement of 1 May
2011 (as per bundles).
[3] Some background
is necessary to understand the context within which the dispute was
referred to arbitration. The LLF agreement
is an agreement concluded
on 11 May 2011 by the Mangaung Local Labour Forum. It provided,
amongst other things, for limitations
on the use of external lawyers
to conduct disciplinary hearings. The provision that is relevant for
present purposes reads as follows:
Utilization of
external lawyers to conduct disciplinary hearing abolished
retrospectively with effect from 1 July 2010.
Declare all
disciplinary hearings conducted – where charges were served by
lawyers – after 4th May 2010, null and void…
Reinstate all the
affected employees retrospectively from date of dismissal.
[4] The charges
brought against the employee were filed on 3 November 2009, and
served on him by a practising attorney. An amended
charge sheet was
served on him on 20 November 2009. The notice of a disciplinary
hearing is dated 9 November 2009, and the matter
proceeded to
finality when the employee was dismissed on 1 September 2010. First
respondent contended that the employee was entitled
to reinstatement
in terms of the LLF agreement. The applicant contended that the
agreement was intended to declare null and void
only those
disciplinary hearings where charges had been served by external
lawyers after 4 May 2010. Since the charges against
the employee had
been served in November 2009, the agreement did not apply to the
employee who accordingly had no right to be reinstated.
The applicant
therefore did not commit an unfair labour practice.
[5] The arbitrator
rejected this interpretation of the agreement and ruled in favour of
the first respondent. Insofar as the arbitrator’s
reasoning can
be discerned from the terms of the award, it is apparent from the
following paragraphs:
[32] The agreement
on page 10 of bundle A states that: ‘Declare all disciplinary
hearings conducted – where charges
were served by lawyers –
after 4th of May 2010, null and void’. The employee was served
with charges on 20th November
2009 but he was dismissed on 1st of
September 2010 as indicated above. The employer submitted that the
Employee was charged and
served with the charges on the third and 20
November 2009, before 4 May 2010. Therefore, he is not covered by the
agreement as
it refers to charges after 4 May 2010. The Employer read
and interpreted that part of the agreement in isolation.
[33] in weighing
evidence and submissions made, all evidence and submissions made
should be looked into in order to arrive at a
just and equitable
decision. Now, there is a conflict in dates with regard to serving of
charges and the abolishment of the utilisation
of external lawyers.
The question that I was left with was whether the employee was
affected in terms of the agreement. Because
the employer made use of
external lawyers at the time of the dismissal of the employee, and
after 1 July 2010, it was my view that
the employee was affected by
the whole situation.
[6] In essence, the
applicant contends that the arbitrator committed an error of law by
misconstruing the terms of the agreement.
As I have indicated above,
the applicant submits that the terms of the collective agreement are
clear and are concerned only with
matters where charges had been
served by an external lawyer prior to 4 May 2010. The effect of the
arbitrator’s reasoning
was to extend the terms of the agreement
to include an employee (such as the employee in the present instance)
dismissed after
this date.
[7] This court is
entitled to intervene and set aside the arbitrator’s award if
and only if the arbitrator’s decision
is so unreasonable that
no reasonable decision-maker could come to the same decision on the
available material. The current authorities
require the court first
to enquire as to whether the arbitrator committed to reviewable
irregularity and if so, whether there is
a basis considering the
evidence that served before the arbitrator overall to displace the
problem facing the case of unreasonableness
that is established in
consequence. If the answer to the latter enquiry is in the negative,
the award stands to be reviewed and
set aside on the grounds of
unreasonableness. In other words, if an arbitrator misdirects him or
herself by ignoring material facts,
commits an error of law and the
like, the award is reviewable only if the distorting effect of the
misdirection is to render the
award unreasonable.
[8] In the present
instance, it ought to be borne in mind that the commissioner was not
required directly to interpret the collective
agreement – the
dispute before him was one that related to an alleged unfair labour
practice committed by the applicant.
The determination of that
dispute obviously required an interpretation of the collective
agreement and the question therefore is
whether it can be said that
the arbitrator misdirected himself by arriving at the interpretation
that he did
[9] The collective
agreement is not a model of clarity. On the contrary, the language
used is cryptic and the structure of the relevant
provisions is not
conducive to easy analysis. Be that as it may, it is clear that the
separate parts of those provisions of the
collective agreement that
are relevant to the present dispute must necessarily be read in
context with the provision as a whole.
The first part of the
provision it would seem to me creates a general rule, namely that the
use of lawyers is prohibited, with
retrospective effect from 1 July
2010. The second part of the provision covers those matters where
charges were served by practising
lawyers after 4 May 2010. The real
issue is whether all disciplinary hearings were conducted after 4 May
2010 or whether the consequence
of nullity is limited to those
hearings where charges were served after 4 May 2010, irrespective of
the date on which the hearing
was conducted.
[10] In my view, the
interpretation contended for by the applicant, which seeks to
interpret the relevant provision of the collective
agreement
disjunctively and to determine nullity only by reference to the date
on which charges were brought against the employee
is an
interpretation that can be sustained on the wording of the agreement,
but it is not the only interpretation. What is more
important for
present purposes, the contrary interpretation adopted by the
arbitrator is not so unreasonable that it falls outside
of the bounds
of reasonableness that define the threshold for review. In other
words, the collective agreement is reasonably capable
of an
interpretation to the effect that all disciplinary hearings conducted
after 4 May 2010 where the charges had been filed by
external
lawyers, are null and void and the affected employees are entitled to
reinstatement. In those circumstances, it cannot
be said, in my view,
that the arbitrator either committed any irregularity in his
interpretation of the provision in question or
that his conclusion,
based on that interpretation, that the applicant had committed an
unfair labour practice by refusing to reinstate
the employee is
unreasonable.
[11] In the
circumstances, the applicant’s failure or refusal to reinstate
the employee in accordance with the provisions
of the agreement
constitutes an unfair labour practice.
[12] For these
reasons, the review application stands to be dismissed. It follows
that the application to have the award under review
made an order of
court should succeed. In relation to costs, the court has a broad
discretion in terms of s 162 to make orders
for costs according to
the requirements of the law and fairness. In my view, those interests
are best served by an order to the
effect that each party pays its
own costs.
I make the following
order:
1. The application
is dismissed.
2. The arbitration
award issued by the South African Local Government Bargaining Council
under case number FSD 011312 on 21 July
2013 is made an order of
court in terms of s 158 (1) (c) of the LRA.
ANDRE VAN NIEKERK
JUDGE OF THE
LABOUR COURT
REPRESENTATION
For the
applicant: Adv JL Basson
Instructed by
Moroka Attorneys
For the first
respondent: Adv P Venter
Instructed by
Maenetja Attorneys