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[2015] ZALCPE 36
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Member of the Executive Council for the Department of Health v Public Health and Social Development Sectoral Bargaining Council and Others (P197/12; P67/13) [2015] ZALCPE 36 (19 March 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case No: P197/12
P67/13
In
the matter between
THE
MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMETN
OF
HEALTH
Applicant
and
THE
PUBLIC HEALTH AND SOCIAL DEVELOPMENT
SECTORAL
BARGAINING COUNCIL
First Respondent
FA
BATWINI
Second Respondent
NM
GXOLO
Third Respondent
MR
PADAYACHY
Fourth Respondent
MD
MANUEL
Fifth Respondent
Heard:
6 February 2014
Delivered:
19 March 2015
Summary:
A commissioner’s omission to give reasons for being satisfied
that a party has discharged the onus of proof renders
his or her
award reviewable as commissioners are enjoined by the LRA to give
reasons for their decisions.
JUDGMENT
LALLIE
J
Introduction
[1]
Four applications served before court. An application to review and
set aside an arbitration award issued by the second respondent
(“the
arbitrator”) under case number PSHS 88-10/11 (“the
award”), in favour of the fifth respondent, an
application to
make the arbitration award an order of court, an application to
dismiss the review application mainly for the applicant’s
tardiness in its prosecution and an application for joinder.
Factual
background
[2]
On 25 October 2009, the Department of Health of the Eastern Cape
Province (“the Department”), advertised the post
of
Deputy Director: Clinical Support Services (“the impugned
position”). One of the requirements was current registration
with the Health Professionals Council of South Africa (“HPCSA”).
The Department appointed the fifth respondent who
was registered with
the South African Nursing Council (“SANC”) and not the
HPCSA in breach of the requirements for
the position. Aggrieved by
the fifth respondent’s appointment, the third and fourth
respondents (“the respondents”)
referred an unfair labour
practice dispute to the first respondent where the arbitrator found
that the Department committed an
unfair labour practice. She ordered
the Department to re-advertise the position. The arbitration award
forms the subject matter
of the applications which served before
court.
[3]
The review application was filed late and the Department applied for
condonation of its late filing. The respondent filed an
application
for joinder. Counsel for the applicant, Mr Booi, and counsel for the
respondents, Mr Christison, reached an agreement
that the Department
would not oppose the joinder application. They further agreed that
the application to dismiss the review application
be heard first and
for the outcome of the application to make the award an order of
court to follow the result. The review application
would be heard
last. Both the review and condonation applications are not opposed.
The application to dismiss the review application
was filed,
according to the respondents, as a counter application to the
condonation application. It is opposed by the applicant.
[4]
The chronology of the events in this matter started with the issuing
of the arbitration award on 12 December 2011. On 24 May
2012, the
applicant filed the review application. The respondents filed their
notice of opposition on 14 June 2012. On 25 June
2012, the applicant
filed an application for condonation of the late filing of the review
application. On 23 July 2012, the state
attorney requested the first
respondent to file the record. On 24 July 2012, the state attorney,
on behalf of the applicant, reminded
the first respondent to file the
record and requested the registrar to ask the first respondent to
accede to the request. A further
request was made on 2 September
2012. On 2 August 2012, the state attorney addressed a letter to the
arbitrator requesting her
to file the record and the mechanical
recording of the arbitration proceedings. On 1 October 2012, the
state attorney filed an
application, compelling the first respondent
to file the record. On 5 December 2012, the first respondent informed
the state attorney
that it had not received the review application.
On 5 December 2012, the state attorney delivered the review
application to the
first respondent for the second time. On 12
December 2012, the state attorney addressed a letter to the register
seeking assistance
to have the first respondent deliver the record.
On 31 January 2013, while the state attorney’s official
responsible for
this matter was on leave, the registrar advised the
office of the state attorney of the availability of the record. On 17
January
2013, the state attorney instructed Veritas to transcribe the
record which it filed on 5 and 20 February 2013.
[5]
The respondents’ attorneys filed their notice of opposition to
the review application on the state attorney in which they
indicated
that notices and correspondence intended for the respondents should
be served on their address. The state attorney submitted
that owing
to an error on its part, it served the notices on their trade which
represented them before they were legally present.
The respondents’
attorneys therefore were unaware of some of the notices which were
filed by the applicant including the
application for condonation of
the late filing of the review application. The applicant submitted
that it has good prospects of
success in the review application. It
denied having prosecuted the review application tardily and submitted
that the progress in
executing the review application was retarded by
the first respondent’s failure to file the record of the
arbitration proceedings.
[6]
In
Sishuba
v National Commissioner of SAPS
[1]
the court referred with approval to
Mothibeli
v Western Vaal Metropolitan Substructure
[2]
in concluding that depending on the circumstances of a case,
administration of justice may dictate that an applicant’s claim
may be dismissed for the applicant’s undue delay in prosecuting
the claim. The relevant principles in deciding whether to
debar an
applicant for the delay in prosecuting its case include the enquiry
whether it is in the interests of justice to allow
the applicant to
pursue its case and potential prejudice on the respondents and third
parties.
[7]
The respondents did not deal with the issue of prejudice. It elected
not to oppose the review application. The applicant’s
failure
to serve the condonation application on the respondent’s
attorneys resulted in their inability to oppose it on time,
however,
when they got to know that it had been filed, they took a conscious
decision not to oppose it. The chronology of the events
of this
matter does not support the conclusion that the applicant delayed
without justification in filing the review application.
It reflects
the applicant’s unabated efforts of bringing the review
application before court. A number of letters were written,
the
registrar was asked to assist in persuading the first respondent to
file the record of the arbitration proceedings and an application
to
compel the filing of the record was filed. The applicant did not sit
on its laurels but took active steps to prosecute its review
application. The delay resulted from the failure of the first
respondent to perform its statutory duties. It will therefore not
be
equitable to visit that failure on the applicant. In the
circumstances, the application to dismiss the review application
cannot
succeed.
[8]
I have considered the unopposed condonation application and I am
convinced that the applicant has shown good cause for the lateness
to
be condoned. Although the extent of the delay is substantial its
explanation is reasonable and acceptable. The applicant has
good
prospects of success in the review application in that its
application could be successful if the allegations it seeks to
rely
on are proved. It will further suffer more prejudice than the
respondent if the condonation application is denied in that
it will
lose the right to have the review application heard.
[9]
The applicant submitted that the arbitrator reached a decision which
no reasonable decision-maker could have reached in finding
that the
respondents had discharged the onus of proof that the applicant had
committed an unfair labour practice. No evidence was
led to support
the arbitrator’s finding. The applicant further submitted that
the arbitrator exceeded her powers, and failed
to give due
consideration to the matter before her leading her to reach findings
which lack both a legal and factual basis.
[10]
The facts of this matter are mainly common cause. The applicant
advertised the impugned position. One of the requirements was
registration with HPCSA. It appointed the fifth respondent who was
not registered with HPCSA but with the SANC. The respondents
alleged
that the applicant committed an unfair labour practice by appointing
a candidate who did not fulfil one of the requirements.
In
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[3]
it was held that in determining review applications, this court needs
to consider whether the arbitrator considered the principal
issue,
dealt with the evidence and reached a reasonable decision. A reading
of the arbitration award reflects that the arbitrator
stated the
versions of both parties before her and concluded that she was
satisfied that the respondents had discharged the onus
of proving
that the applicant had committed an unfair labour practice. She did
not deal with the evidence before her and gave no
reasons for being
satisfied that the onus of proof had been discharged. She was
enjoined by section 138 (7) of the Labour Relations
Act 66 of 1995
(“the LRA”) to give brief reasons for her decision. She
gave none thus rendering her award reviewable.
[10]
In the premises the following order is made:
10.1
The application for joiner is granted.
10.2
The application to dismiss the review application is dismissed.
10.3
The late filing of the review application is condoned.
10.4
The arbitration award issued by the second respondent under case
number PSHS 88-10/11 and dated 12 December
2011 is reviewed and set
aside.
10.5
The matter is remitted to the first respondent to be arbitrated
de
novo
by an arbitrator other than the second respondent.
___________________________________
Lallie
J
Judge
of the Labour Court of South Africa
APPEARANCE
For
the Applicant:
Advocate Booi
Instructed
by:
State Attorney
For
the Third Respondent:
Advocate Christison
Instructed
by:
Brown Braude & Vlok Inc Attorneys
[1]
[2007] 10 BLLR 988 (LC).
[2]
[2000] 1 BLLR 85 (LC).
[3]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC).