About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 61
|
|
Department of Education, North West Province v Education Labour Relations Council (ELRC) and Others (JR2413/11) [2016] ZALCJHB 61 (23 February 2016)
REPUBLIC
OF SOUTH AFRICA
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
C
ase
no: jr 2413/11
In
the matter between:
DEPARTMENT OF
EDUCATION, NORTH WEST PROVINCE
First Applicant
and
EDUCATION LABOUR
RELATIONS COUNCIL (‘ELRC’)
First Respondent
COMMISSIONER E
MAREE
N.O
Second
Respondent
DAVID SELLO
SACHA
Third Respondent
Heard
:
17 February 2016
Delivered
:
23 February 2016
Summary:
(Review – hearsay evidence –
arbitrator’s failure to raise her concerns about admissibility
of evidence with the
parties and ask them to make submissions on the
question – patent gross irregularity in terms of s
145((2)(
a
)(ii)
- referral to bargaining council not condoned - no jurisdiction)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The Department of Education in the North
West Province dismissed the third respondent for sexually assaulting
a learner at a secondary
School in breach of
section 17
(1) (b) of
the
Employment of Educators Act, 76 of 1998
. The arbitrator in this
matter found his dismissal was procedurally fair but substantively
unfair and ordered his reinstatement.
The
award and review
[2]
All the evidence led at the arbitration was
hearsay evidence. Not even the third respondent who was present
testified on his own
behalf. In the disciplinary enquiry, the
complainant obviously with some difficulty did testify but only on
condition that the
third respondent was not in the room when she did
so because she felt intimidated by him.
[3]
The arbitrator was ambiguous in her award
about whether she actually admitted the hearsay evidence at all or
whether, having admitted
it, discounted it because of its hearsay
character, though I am inclined to believe that she decided it was
all inadmissible because
the parties had failed to satisfy her that
it met the requirements for admission. It is apparent that she never
raised her qualms
about the hearsay character of the evidence with
the parties and did not ask them to address her on its admissibility
or probative
value. Despite this her decision that the employer had
failed to discharge the onus was based entirely on “the nature
of
the evidence”. The parties had no prior warning of how
decisive her view of the evidence would be.
[4]
Although
she recited the test for the admission of hearsay evidence as
contained in the law of evidence amendment act 45 of 1998,
she seems
to have adopted the view that because the parties did not make any
submissions motivating why the evidence should be
admitted, she did
not have to consider the issues they did not address either. Further,
if I assume that the arbitrator did admit
the evidence but discounted
its weight because it was hearsay, she completely failed to evaluate
the evidence by any other criteria
such as the extent to which the
evidence of witnesses tended to corroborate each other, nor did she
make any assessment of the
credibility of any of the witnesses. She
also completely failed to consider the undisputed evidence that the
complainant had felt
intimidated in the original enquiry, in deciding
whether the admission of hearsay would be relevant.
[1]
[5]
Plainly, if the parties had been aware of
her misgivings about the evidence they presented, they might well
have taken additional
steps to reinforce that evidence, such as
confirming the accuracy of the minutes of the disciplinary enquiry or
subpoenaeing additional
witnesses. The wholesale discounting of the
evidence without warning the parties was obviously highly prejudicial
and amounted
to a patent gross irregularity in the proceedings in
terms of
s 145(2)(
a
)(ii).
For these reasons alone, I would be inclined to set the award aside.
Jurisdiction
[6]
However, another issue raised belatedly was
a jurisdictional question relating to the referral of the dismissal
dispute to the Education
Labour Relations Council. The final word on
the third respondent’s internal appeal against his dismissal
was conveyed to
him on 5 November 2010. The referral to the
bargaining Council was only lodged on 14 January 2011. Measured by
the standard of
section 191(1)(a)(i)
read with (1)(b)(ii) of the LRA,
the 30 day period for referring his dispute lapsed on 6 December
2010, which would make his referral
five weeks out of time. Even if I
accept that in terms of the Constitution of the bargaining Council a
party has 45 days to refer
such a dispute, then the period for
lodging the referral would have ended on 20 December 2010.
Consequently, it would still have
been approximately three weeks
late. It was argued that in counting days for the purpose of
determining the cut-off that only working
days should be counted, but
that is contrary to the definition of ‘days’ in the LRA
and in the ELRC Constitution.
[7]
It
is trite law that a bargaining council or the CCMA does not have
jurisdiction to conciliate or arbitrate a dispute unless a dispute
has been referred timeously in terms of s 191(1)
[2]
,
failing which the party referring the dispute has obtained
condonation in terms of s 191(2) of the LRA
[3]
.
In this case no condonation was obtained. In this instance, the
referral was late and no condonation was obtained at any stage.
Accordingly the arbitration award was a nullity and must be set aside
for want of jurisdiction.
Order
[8]
The arbitration award of the second respond
is set aside as being
ultra
vires
the powers of the second respondent.
[9]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
THIRD
RESPONDENT:
FOURTH
RESPONDENT:
[1]
The
court's observations on the context which might dictate the
necessity of accepting hearsay evidence in
Food
& Allied Workers Union on behalf of Kapesi & others v
Premier Foods Ltd t/a Blue Ribbon Salt River (2010) 31
ILJ
1654 (LC)
a
t
1672-4, paras [40] to [43] are particularly pertinent in this
matter.
[2]
See e.g
Zimema
v CCMA & others
[2001]
2 BLLR 251 (LC)
[3]
See e.g
Shoprite
Checkers (Pty) Ltd v CCMA & others
[1998] 5 BLLR (LC),
Alternative
Finance Ltd v Adair NO & others
[1998] 10 BLLR 1011
(LC)
and
more recently
SA
Municipal Workers Union on behalf of Manentza v Ngwathe Local
Municipality & Others (2015) 36 ILJ 2581 (LAC) at [42]-[43
]
where the LAC expressly overruled its previous decision in
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & others
(2000)
21 ILJ 2382 (LAC)
insofar
as that decision suggested it was necessary to set aside a
certificate of outcome before the issue of jurisdiction could
be
entertained.