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[2016] ZALCJHB 97
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Msikinya v General Public Servants Bargaining Council and Others (JR2739/2014) [2016] ZALCJHB 97; (2016) 37 ILJ 1457 (LC) (16 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: JR2739/2014
NTSELE WONGA
MSIKINYA
Applicant
and
GENERAL PUBLIC
SERVANTS BARGAINING COUNCIL
First Respondent
COMMISSIONER ZARINA
WALELE N.O
Second Respondent
MEC FOR SPORTS, ARTS
CULTURE
AND RECREATION:
GAUTENG
Third Respondent
Heard:
12 January 2016
Delivered:
16 February 2016
Summary:
Review of exercise of commissioner’s discretion in terms of
s193(1)(a) of the Act. Delay
in concluding arbitration proceedings a
relevant factor when determining relief. Based on LAC authorities
Sidumo
reasonableness test not applicable. Test is fairness to
both parties and exercising discretion judicially correct. Difference
between
appeal and this type of review artificial.
JUDGMENT
BAKKER,
AJ
Introduction
[1]
The Applicant successfully challenged the fairness of his dismissal
by the Third Respondent. Having found that the Applicant’s
dismissal was substantively unfair but procedurally fair, the Second
Respondent (“the Arbitrator”), on 24 December
2013,
ordered the Applicant’s reinstatement limiting his back-pay to
nine (out of a possible 17) months.
[2]
The Applicant then applied to the Arbitrator to vary her award in
respect of the limitation to the back-pay. The Arbitrator
reconsidered the issue of back-pay and on 24 October 2013 resolved,
with further reasoning, that the back-pay should indeed be
limited to
nine months. The effect of the limitation was that the Applicant had
to sacrifice eight months of income whilst the
arbitration was
continuing.
[3]
In this application, the Applicant seeks to partially review and set
aside both awards and to be replaced with an order directing
the
Third Respondent to reinstate the Applicant with full retrospective
back pay of 17 months. The Applicant claims that the Arbitrator
made
an error of law and fact.
The facts
[4]
The facts relating to the delays in finalising the arbitration
proceedings are largely common cause between the parties.
[5]
The Third Respondent’s representatives made various attempts to
arrange for a pre-arbitration meeting with the Applicant’s
representatives. They received no response. At the commencement of
the arbitration, on 26 March 2013, the matter had to be postponed
to
allow the parties to conduct a pre-arbitration conference and file a
pre-arbitration minute.
[6]
When the matter resumed on 25 April 2013, the arbitration could not
continue as a result of the Applicant’s representative’s
being temporarily incapacitated. No advance warning was received by
the Third Respondent’s representatives and the arbitration
day
was lost.
[7]
The arbitration proceedings of 10 May 2013 were delayed on account of
the Applicant’s representative being late and then,
at the
eleventh hour, demanding documentation not included in the combined
arbitration bundle which was finalised some two weeks
earlier.
[8]
Many delays occurred between 10 May 2013 and 27 November 2013 as a
result of the unavailability of both the Applicant’s
legal
representatives and the Arbitrator. On one occasion, the arbitration
was postponed by agreement after the Third Respondent
had to request
a postponement.
[9]
Both parties submitted written submissions to the Arbitrator before
she made her award. Regrettably, the Applicant failed to
include
those submissions in the review record that he filed in this Court.
Although I had no sight of these written submissions,
I accept that
both parties had an opportunity to make submissions to the Arbitrator
on the issue of remedy and the exercise of
her discretion.
The issues
Appeal or review
[10] Even though I agree
with the Third Respondent’s submission that the Applicant’s
challenge to the arbitration awards,
as pleaded, was more in the form
of an appeal than that of a review, I accept in favour of the
Applicant that he is dissatisfied
with the result and seeks a
reconsideration of the Second Respondent’s approach to the
relief awarded to him. The distinction
between appeal and review can
sometimes be artificial and of no great significance to the
adjudication of the matter at hand. Cameron,
JA, as he then was,
explained in
Rustenburg Platinum Mines (Rustenburg Section) v CCMA
and Others
that the line between review and appeal is notoriously
difficult to draw ‘because process-related scrutiny can never
blind
itself to the substantive merits of the outcome.’
[11]
In arriving at my conclusions, I am mindful not to assume the powers
akin to an appeal and direct my thoughts not to the correctness
of
the decision
per se
but to the decision-making process of the
Second Respondent and whether she considered all the relevant factors
and arrived at
a decision that is judicially justifiable.
Exercise of a
discretion
[12]
The central issue in dispute in the present review is the manner in
which the Second Respondent, Arbitrator, exercised her
discretion in
awarding a remedy under section 193(1)(a) of the Act. The Arbitrator
awarded reinstatement whilst limiting the amount
of back-pay. This is
not to be confused with a remedy of compensation awarded in terms of
section 193(1)(c) as limited under section
194(1) of the Act, to
which a different test on review would have applied. The SCA held in
Republican
Press
v
CEPPWAWU
and Others
that
back-pay cannot be equated with compensation, which means the
limitation in section 194(1) does not apply to the amount of
back-pay
in terms of section 193(1)(a) of the Act. This approach was endorsed
by Nkabinde, J in
Equity
Aviation
Services
(Pty) Ltd v CCMA and Others.
It
follows that, in the present matter, it would have been competent for
the Arbitrator, had she exercised her discretion in such
a manner, to
award full retrospective back-pay of 17 months. Indeed, the Applicant
wants this Court to review and set aside the
arbitration award and
variation award and replace it with an award of reinstatement with
full retrospective back-pay.
[13]
Remedies for unfair dismissals are regulated by section 193 of the
Act. The power to grant any of the available remedies are
discretionary in nature and are to be exercised judicially. An
unfairly dismissed employee does not become entitled to a remedy
provided for in section 193 but only to be considered for any of the
available remedies. Writing for the majority, Davis, AJA held
in
Kroukam
v
SA Airlink (Pty) Ltd
that
‘
The wording
of section 193(1)(a) supports appellant’s contention that the
Court has a discretion in respect of the retrospectivity
of a
reinstatement award. In exercising this discretion, a court can
address inter alia the time period between the dismissal and
the
trial. The Court can accordingly ensure that an employer is not
unjustly financially burdened if reinstatement is ordered.’
[14]
The Constitutional Court held that section 193(1)(a) of the Act
provides a commissioner with a
‘…
discretion
to determine the extent of retrospectivity of the order of
reinstatement or re-employment. In exercising the discretion
a court
or an arbitrator may address, among other things, the period between
the dismissal and the trial as well as the fact that
the dismissed
employee was without income during the period of dismissal, ensuring
however, that an employer is not unjustly financially
burdened if
retrospective reinstatement is ordered or awarded.’
This
approach was endorsed by the CC in
Billiton
Aluminium
SA
Ltd t/a Hillside Aluminium v Khanyile and Others.
[15]
As stated above, awarding reinstatement with or without back-pay is a
discretionary remedy. This judicial discretion is not
an unfettered
discretion. In exercising this discretion, a commissioner must
consider all the relevant facts and act fairly to
both sides. In
considering all the relevant facts, the commissioner must study,
inter alia
, the appropriateness of the remedy, prejudice to be
suffered by both parties and the delay in prosecuting the dispute.
[16]
I cannot find on the facts before me that the Arbitrator was ignorant
to the duty imposed on her.
The
net effect of the Second Respondent’s decision is to deny the
Applicant back-pay for the entire period over which the
arbitration
continued whilst at the same time not subjecting the Third Respondent
to the adverse financial liability of having
to pay the Applicant for
the entire duration of the arbitration proceedings.
In
exercising a judicial discretion, the Arbitrator has to be fair to
both parties. It would not have been fair to the Third Respondent
if
it was expected to remunerate the Applicant for a period in which the
Applicant and his representatives were primarily responsible
for the
delays in finalising the arbitration. In balancing the dictates of
fairness, the Arbitrator ensured the security of the
Applicant’s
employment and awarded him reinstatement, without a break in service.
Fairness under these circumstances dictates
that one party does not
benefit at the expense of the other.
[17]
The Applicant complains that the Arbitrator never afforded him an
opportunity to address her specifically on the issue of delay
prior
to taking such delay into account in deciding the appropriate relief
and ultimately limiting his back-pay. Whilst there may
be some merit
in the proposition that an Arbitrator ought to disclose any
prima
facie
views that might lead to a decision, so as to enable the
representatives a fair opportunity to make representations in
relation
to such views, in the present matter, the Second
Respondent’s failure to pertinently disclose her
prima facie
views on delay does not amount to misconduct in relation to her
duties or any gross irregularities in the conduct of the arbitration
proceedings.
[18]
In any event, the Applicant was allowed to make written submissions
at the conclusion of the arbitration. This would have included
an
opportunity to address the Arbitrator on the issue of remedy and how
the Applicant desired the Arbitrator to exercise her discretion.
Moreover, the Applicant had a second bite at the cherry when he
applied for the variation of the award. In the latter instance,
he
was still unable to persuade the Arbitrator to make a different award
in respect of back-pay after he made submissions on the
issue of
delay. The Arbitrator, plainly, took the view that the limitation in
the amount of back-pay was justified. That is a plausible
view and
one that does not merit interference by this Court.
[19]
As she was enjoined to do under section 138(7)(a) of the Act, the
Arbitrator provided reasons in her variation award and explained
that
the issue of the delay in finalising the arbitration proceedings
informed her decision on limiting back-pay to no more than
nine
months. In my view, that is an adequate reason premised on facts that
are not disputed in this Court. As the Arbitrator had
overseen the
arbitration proceedings, she was privy to these events as witnessed
by her. This demonstrates a rational and objective
basis justifying
the conclusion that the Arbitrator arrived at. The Arbitrator’s
decision to limit the amount of back-pay
does not appear to be
unmotivated or to have been made arbitrarily. The Applicant has done
no more than to allege that the Arbitrator
has committed an error of
fact without clearly identifying where she had erred.
[20]
Snyman, AJ provides a useful reference in
NUMSA obo Thilivali v
Fry's Metals
to judgments of this Court and the LAC to illustrate
how the discretion to limit back-pay must be exercised. These cases
conform
to the principles I have stated above.
Test to applied by a
review Court
[21]
With reference to a 1951 authority of the former Appellate Division,
Willis, JA in
Fibre
Flair
formulated
the test for interference in the discretion exercised in terms of
section 193(1)(a) of the Act:
‘
Can it be
said in the present case that the Court a quo has exercised its
discretion capriciously or upon a wrong principle, that
it has not
brought its unbiased judgement to bear on the question or has not
acted for substantial reasons?’
[22]
It is incumbent on this Court to be guided by the authority of the
LAC. In
Kukard
the LAC cautioned against the common mistake by
counsel and Judges applying the
Sidumo
(reasonableness) test
to a reconsideration of a commissioner’s discretion under
section 193(1) of the Act. The LAC held that:
‘
What the
reviewing court is required to do is to evaluate all the facts and
circumstances that the arbitrator had before him or
her, and then
decide based on the underlying fairness to the (sic) both the
employer and employee whether the decision was judicially
a correct
one.’
[23]
In
Kukard
the LAC referred with approval to Waglay, JA (as he then was) in
Kemp
t/a
Centralmed v Rawlings
at
para [55]
‘…
. a
review of a discretion exercised in terms of s 193(1)(c) is
essentially no different to an appeal because the reviewing court
will be required to consider all the facts and circumstances which
the arbitrator or the Court had before it and then decide based
on a
proper evaluation of those facts and circumstances whether or not the
decision was judicially a correct one’.
[24]
Kukard
interprets
Kemp
as authority to support its
proposition that the
Sidumo
reasonableness test does not apply
to a reconsideration of a commissioner’s discretion under
section 193(1) of the Act. Because
I am bound by these authorities, I
am not applying the
Sidumo
reasonableness test but the test
enunciated in
Kukard
– to determine whether the
Arbitrator’s decision was judicially correct.
[25]
Although I am bound by
Kukard
, I respectfully disagree that it
was necessary or appropriate to disavow the
Sidumo
reasonableness test. Reliance on
Kemp
was misguided firstly
because Waglay, JA, as he then was, was writing one of three
judgments in which Zondo, JP (as he then was)
disagreed with the
reasoning (although he concurred with the conclusion); secondly, para
55 of
Kemp
is not the
ratio
of Waglay JA’s, as he
then was judgment; and thirdly Waglay, JA, as he then was, was
dealing with an appeal and the test
for interference by an appeal
court in the exercise of a discretion by a Judge in a lower court and
is distinguishable from a review
of a commissioner’s
discretion. Ultimately, in my view, the Constitutional Court in
Sidumo
has spoken the last word – ‘is the decision
reached by the commissioner one that a reasonable decision-maker
could
not reach?’ If I were to apply
Sidumo
to the
present matter, the question would have been: if the remedy awarded
by the Arbitrator is one that another reasonable commissioner
could
reach, interference is not permitted on review. A commissioner
exercising a discretion under section 193(1) of the Act is
making a
decision what remedy, if any, to award for an unfair dismissal. If a
review is premised on a section 145(2) ground and
it is alleged that
the commissioner got the facts, procedure or remedy wrong, there is a
plethora of authorities suggesting that
the
Sidumo
test would
apply on review. Although I see no reason why the
Sidumo
test
should not be applied to the present review, I am, as expressed
above, bound by
Kukard
to apply a different test.
[26]
In the end it makes no difference. Whatever reservations I may have
on the applicable test, it makes no difference to the outcome
of the
present review. If I was not bound by
Kemp
and
Kukard
and applied the
Sidumo
reasonableness test to the facts
particular to the present matter, this Court would have arrived at
the same conclusion that the
Arbitrator’s decision to limit the
back-pay is one that falls within the band of reasonableness and
merits no interference
on review.
[27]
Applying the
Kukard
test, the Arbitrator exercised her
discretion fairly to both parties and made a judicially correct
decision. In my view, the Second
Respondent acted on a correct
principle of law and within the bounds of her discretion when she
limited the Applicant’s back-pay.
She does not seem to have
acted arbitrarily or capriciously. It was entirely reasonable to take
into account the delay in prosecuting
the arbitration to finality
caused primarily by the Applicant and his legal representative, when
she exercised her discretion to
limit the back-pay.
[28]
This approach may also serve as an incentive for employees to ensure
that they diligently and expeditiously prosecute their
unfair
dismissal arbitrations to finality. The importance of the expeditious
resolution of arbitrations was recognised by the Constitutional
Court
in
CUSA
v
Tao Ying Metal Industries and Others:
‘
The
LRA introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes. These
disputes, by their very nature, require speedy
resolution. Any delay
in resolving a labour dispute could be detrimental not only to the
workers who may be without a source of
income pending the resolution
of the dispute, but it may, in the long run, have a detrimental
effect on an employer who may have
to reinstate workers after a
number of years’
[29]
Unless special circumstances so require, a review Court should be
hesitant
to interfere with the discretion exercised by a commissioner when
limiting the amount of back-pay payable to an employee
in conjunction
with a reinstatement award in terms of section 193(1)(a) of the Act.
Even if this Court concludes that it would
have granted a remedy more
beneficial to the Applicant, it should interfere only if and when it
finds that the commissioner had
not exercised her discretion
judicially. I do not think the Second Respondent can be faulted for
the way in which she exercised
her discretion.
[30]
The Arbitrator acted fairly towards both the Applicant and the Third
Respondent. The Arbitrator took into account relevant
considerations
and based her discretion on correct legal principles. The manner in
which she exercised her discretion in awarding
the remedy she did,
is, in my view, judicially correct and unassailable. I can find no
reason that justifies interference in the
manner the Arbitrator
exercised her discretion. This review must, therefore, fail.
Costs
[31]
I have a discretion under section 158 (1)(a) read with section 162 of
the Act to award costs on the basis of the requirements
of law and
fairness. Unless fairness dictates otherwise, costs are normally
awarded to the successful party. The Applicant has
already suffered
damages on account of the limitation of his back-pay and his approach
to this Court was not unreasonable. The
ongoing employment
relationship of the parties is a relevant consideration when awarding
costs. I am of the view that a cost order
against the Applicant might
prejudice that relationship and would, therefore, be inappropriate.
In my view, it is fair that each
party pays its own costs.
Order
[32]
In the premises, the following order is made:
1.
The
application is dismissed.
2.
I
make no order as to costs.
___________________________
Bakker, AJ
Acting Judge of the
Labour Court of South Africa
Appearances:
For
the Applicant:
Attorney Mr. Mkhize
For
the Respondent:
Mr. Louwrens Malan
Instructed
by:
Bowman Gilfillan Inc.