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[2015] ZALCCT 33
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Tsengwa v Knysna Municipality and Others (C457/14) [2015] ZALCCT 33; [2015] 8 BLLR 857 (LC); (2015) 36 ILJ 2392 (LC) (16 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
C457/14
DATE:
16 APRIL 2015
Reportable
In
the matter between:
AUBREY
TSENGWA
...............................................................................................................
Applicant
And
KNYSNA
MUNICIPALITY
.........................................................................................
First
Respondent
SOUTH AFRICA
LOCAL GOVERNMENT
BARGAINING
COUNCIL
......................................................................................
Second
Respondent
ZOLA MADOTYENI
N.O
.........................................................................................
Third
Respondent
Date
heard: 18 February 2015
Delivered:
16 April 2015
Summary:
Application to review an arbitration award; consideration of whether
arbitrators have the power to declare disciplinary
proceedings null
and void with regard to Clause 6.3 of the Disciplinary Procedure and
Code Collective Agreement; SAMWU obo T Jacobs
v City of Cape Town and
others
[2014] 10 BLLR 1011
(LC)
held to have been incorrectly
decided.
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application to review and set aside an arbitration award
under case number WCP041314. The third respondent
(the arbitrator)
found that the dismissal of the applicant was substantively and
procedurally fair.
[2] The
applicant, a law enforcement officer of 8 years standing was
dismissed on 27 March 2013, following a disputed disciplinary
process. The charges related to his alleged involvement in a violent
fracas that took place in an ANC meeting that was held at
the library
hall of the municipality on 3 August 2012.
[3] For the
purposes of this application the phrase "a disputed disciplinary
process" is important. This is because the
parties are bound by
a collective agreement, called the Disciplinary Procedure and Code
Collective Agreement (the DPCCA) which
applies to the exercise of
disciplinary action in local government. In terms of Clause 6.3 of
the DPCCA, (which is incorporated
into the conditions of service of
each employee), after charges have been duly brought against an
employee:
“
The
Employer shall proceed forthwith or as soon as reasonably possible
with a Disciplinary Hearing but in any event not later than
three (3)
months from the date upon which the Employer became aware of the
alleged misconduct. Should the employer fail to proceed
within the
period stipulated above and still wish to pursue the matter, it shall
apply for condonation to the relevant Division
of the SALBC.”
[4] It is
submitted on behalf of the applicant that non-compliance with Clause
6.3 renders non-compliant disciplinary hearings null
and void. The
applicant and his union SAMWU raised an objection in the disciplinary
hearing in that condonation had not been sought
in terms of the
clause. During an adjournment of that hearing, it referred a dispute
to the SALGBC, regarding the interpretation
and application of the
collective agreement. The dispute was referred at national level as
the SALGBC constitution requires that
disputes concerning the
interpretation of collective agreements are conducted at this level.
When the disciplinary hearing reconvened,
the chairperson refused to
postpone the proceedings pending the outcome of the interpretation
dispute, and found that the applicant
should be dismissed on 27 March
2013.
[5] Following
the interpretation arbitration, in an award dated 23 April 2013, the
national level pannelist found as follows:
5.1
The municipality had become aware of the misconduct on 10 August 2012
at the latest.
5.2
The three-month time period was interrupted once the respective
parties and their representatives attended a meeting on 19 November
2012.
5.3 The time
limit set by section 6.3 is peremptory.
5.4
The municipality was not within the three month time limit, it was
nine days out of it.
5.5
The municipality ought to have first sought condonation before
proceeding with the disciplinary hearing.
[6] On 23 April
2013, SAMWU referred applicant’s dismissal dispute to the
SALBGC for conciliation. In that referral, the union
raised the
complaint that the municipality had not complied with Clause 6.3. It
did so again on 26 June 2013, when the dispute
was referred to
arbitration.
[7] It is
submitted that the award stands to be reviewed because the arbitrator
did not consider the effect that non-compliance
with Clause 6.3 would
have on the disciplinary proceedings and, in particular, whether such
non-compliance rendered the proceedings
null and void as contended by
SAMWU.
[8] It is
therefore submitted on behalf of the applicant that a fatal defect in
the arbitration proceedings occurred which renders
them susceptible
review. It led to the arbitrator failing to properly exercise his
powers as derived from the SALGBC Constitution,
Main Agreement and
the DPCCA.
[9] The principal
submission made on behalf of the applicant (who is supported by his
union SAMWU in these proceedings) is the following:
where an
arbitrator is acting under the SALGBC’s jurisdiction and is
faced with the circumstances that confronted the arbitrator
in
casu
, that arbitrator must determine whether the employer party
complied with its obligations under Clause 6(3), and if not, he or
she
is empowered to issue a declaratory order, the effect of which
would be to nullify the disciplinary action taken against the
employee.
[10] The above
submission is premised on an argument as follows:
10.1 The
arbitrator had the power to determine, on any set of given facts,
whether a local government employee’s dismissal
was fair or
not, and whether a party to the SALGBC had applied the SALBGC’s
collective agreements correctly. These determinations
could proceed
in tandem.
10.2 Clause 19.1
of the SALGBC Constitution provides that: “Despite any other
provision in the [LRA], the Council shall monitor
and enforce
compliance of collective agreements in terms of section 33A of the
[LRA]”.
10.3 Section
33(A) of the LRA provides: “… a bargaining council may
monitor and enforce compliance with its collective
agreements in
terms of this section or a collective agreement concluded by
the parties to the council".
10.4 Section
33A(4)(a) provides that an arbitrator may be appointed by a
bargaining council to resolve the dispute concerning the
compliance
by a party with a collective agreement and that such an arbitrator
may determine such a dispute by way of issuing an
"appropriate
award" in terms of section 33A (8).
10.5 Section
33A(8) provides that such an appropriate award may include any award
contemplated by section 138(9) of the LRA.
10.6 Section
138(9) of the LRA provides that an arbitrator may make an award:
“
(a) that
gives effect to any collective agreement;
(b)
that gives to the provisions and primary objects of this Act;
(c) that
includes, or is in the form of, declaratory order."
[11] The
applicant relies on the judgment of
SAMWU
obo T Jacobs v City of Cape Town and others
[1]
in
which my brother, Steenkamp J accepted and applied the above
submissions finding that :
“
[18] SAMWU
argued that the city had acted in breach of the collective agreement.
It is common cause that the City did not comply
with the three-month
time stipulation; that it did not apply for condonation; that the
provisions of the Code are peremptory; and
that they form part of the
employee’s conditions of service. In deciding that he did not
have the power to issue a declaratory
to the effect that the
disciplinary hearing was null and void, the arbitrator failed to deal
with the dispute before him. He also
exceeded his powers. This had
the effect that the conclusion he reached was so unreasonable that no
reasonable arbitrator could
have reached the same conclusion."
[12] Mr Whyte for
the applicant submitted that this Court should follow the judgment in
Jacobs
. Mr Bosch for the municipality argued that the question
to be determined in this matter relates to whether the arbitrator
committed
a reviewable defect in failing to make a finding and
declaring that the municipality failed to comply with the DPCCA, and
that
the disciplinary proceedings against the applicant were null and
void. Further he submitted that the arbitrator who was appointed
at
regional level in terms of the SALGGBC Constitution, had no
jurisdiction to deal with the validity of the disciplinary
proceedings
or whether the municipality was in breach of the DPCCA.
[13] Mr Bosch
submitted that in terms of SALGBC Constitution, only the Central
Council has jurisdiction to arbitrate disputes relating
to the
interpretation and application of collective agreements concluded at
national level. The arbitrator was appointed at divisional
level to
deal with an unfair dismissal dispute. In his view the matter was in
any event
re judicata
– the national panelist had
ordered that the municipality ought to have applied for condonation,
but did not declare the
disciplinary proceedings null and void.
Further, that a consideration of the record of the proceedings
reveals that in any event,
SAMWU itself treated the question of the
continuation of the disciplinary proceedings as a procedural fairness
issue before the
arbitrator, although it also used the word
‘unlawful’.
[14] There is a
further important issue at stake in this matter – the notion
that because section 138(9) of the LRA provides
that a commissioner
may make a declaratory order that this means that it is within the
power of commissioners to declare disciplinary
proceedings null and
void, and of no force and effect. There appears to be a misconception
that the power to issue a declaratory
order equates with the
jurisdiction to declare acts to be unlawful and invalid. This is not
the case – a tribunal or court
which does not have inherent
powers is limited as to the type of declaration of rights it may
make. For example, a commissioner
or an arbitrator’s
power to make a declaratory order is limited by the ambit of disputes
they are permitted to preside over
by virtue of the LRA and other
employment statutes.
[15] Perhaps the
clearest way to debunk the notion that arbitrators and commissioners
can set aside irregular proceedings as unlawful
is to remind
ourselves that they exercise an administrative function.
[2]
As O’Reagan J put it in
Sidumo
:
[139]
…. The CCMA is an organ of state exercising public power. Its
statutory task is to resolve disputes that arise in the
workplace by
implementing the provisions of the Labour Relations Act read in the
light of the provisions, in particular, of s 23
of the Constitution.
Section 23(1) of the Constitution provides that workers and employers
are entitled to fair labour practices.
The adjudicative task
performed by the CCMA involves the determination of disputes often
involving the question of fair labour
practices that are of
importance to the litigants before the CCMA. It is not an institution
for private, agreed arbitration
but a state institution
established for the resolution of disputes. The procedures provided
for in the Labour Relations Act make
plain that the disputes are to
be speedily and cheaply resolved by the CCMA. No appeal lies from the
CCMA, but the Labour Relations
Act expressly requires that the Labour
Courts are to scrutinize the decisions of the CCMA.
[140]
It is clear that the CCMA has been established to expedite the
resolution of labour disputes in an efficient and cost-effective
manner. Special procedures have been created to avoid the delays and
costs associated with dispute resolution in the ordinary
courts. In this sense, the CCMA is properly understood as an
administrative tribunal. Our Constitution recognizes the need for
the
conduct of administrative agencies to be scrutinized, to ensure that
they act lawfully, reasonably and procedurally fairly.
As the Labour
Relations Act already provides for the scrutiny on review of
decisions of the CCMA by the Labour Court, no further
delay will be
caused by that scrutiny being on the basis of the constitutional
standards established in s 33. So the need for speedy
and cheap
resolution of disputes does not mean that the CCMA should not be held
accountable for its decisions, nor that it should
not be monitored by
the Labour Court to ensure that it acts lawfully, reasonably and
procedurally fairly. Indeed, as Sachs J has
reasoned, it is entirely
consistent with our constitutional order that the procedures and
decisions of the CCMA should be lawful,
reasonable and procedurally
fair and that this should be ensured by appropriate scrutiny by the
labour courts.
[141]
For these reasons then, and for the additional reasons given by Navsa
AJ at paras 81-88 of his judgment, I agree with him
that arbitrations
by commissioners in the CCMA constitute administrative action within
the contemplation of s 33 of the Constitution.
I also concur with the
rest of his judgment.”
[16] The above
applies equally to arbitrators performing functions in a bargaining
council such as second respondent in this case
- they perform
administrative functions and their decisions are monitored by this
court in terms of the LRA. The case for the applicant
proposes that
an administrative functionary such as the arbitrator in this matter,
can declare proceedings presided over by another
administrative
functionary (i.e. the chairperson of the disciplinary hearing
appointed by an organ of state, the municipality)
to be unlawful and
invalid. The definitive feature of our model of administrative law is
that administrative bodies are subject
to the supervision of ordinary
courts of law. The task of reviewing the legality of administrative
decisions has always fallen
on the courts.
[3]
This principle goes to the heart of the separation of powers
entrenched in our Constitution.
[17] For the
above reasons I find, with respect, that the
Jacobs
matter was
wrongly decided and the review cannot succeed for the reasons that
were relied upon in that judgment, and repeated in
this court. I
further agree with Mr Bosch that the application for review cannot
succeed on another basis (also not taken into
consideration in the
Jacobs
judgment) i.e. that in terms of the SALGCB
Constitution, the arbitrator could only deal with the issue of the
fairness of the dismissal
in the proceedings before him.
[18] Although not
cited as a party, the court was informed that this application was
supported by SAMWU. I am not disposed to make
a costs order given the
ongoing relationship between the parties.
[19] In all the
circumstances, I make the following order:
Order
1. The
application is dismissed.
H.Rabkin-Naicker
Judge
of the Labour Court
Appearances:
Applicant:
Mr Jason Whyte of Cheadle Thompson & Haysom Inc
First
Respondent: Mr C. Bosch instructed by Lizelle Baronique Harker
Attorney
[1]
[2014]
10 BLLR 1011
(LC)
[2]
Sidumo & another v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC) at paragraph 88
[3]
See
Ian Currie ed ‘The New Constitutional and Administrative
Law’;Juta 2002 at pages 35 -37.