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[2016] ZALCCT 16
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City of Cape Town v South African Local Government Bargaining Council and Others (C573/2014) [2016] ZALCCT 16 (22 April 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
Case
Number: C573/2014
In the
matter between:
THE CITY OF CAPE TOWN
Applicant
And
THE SOUTH AFRICAN LOCAL
GOVERNEMENT
BARGAINING COUNCIL
First Respondent
C DE KOCK N.O.
Second
Respondent
BLAMO BROOKS
Third Respondent
Date
heard: 29 November 2015
Delivered:
22 April 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number no: WCM021411.
The Award handed down by the First
Respondent (the Arbitrator) reads as follows:
“
14.1
The disciplinary hearing held in respect of the applicant, as well as
the sanction of demotion
that followed such hearing, is invalid and
of no force and effect.
14.2
The respondent is ordered to reinstate the applicant into the
position he held as Area
Manager before his demotion with
retrospective effect and with no loss of benefits.
14.3
The respondent must comply with this award within two weeks from the
date that this award
has been served on it.”
[2] In
summary the applicant submitted before me that:
2.1
The question before the arbitrator was whether the third respondent’s
demotion amounted to an unfair labour practice and was referred to
the CCMA in terms of section 191 of the LRA. The arbitrator failed
to
understand the nature of the enquiry before him and/or exceeded his
powers by failing to resolve the dispute about an alleged
unfair
labour practice that had been placed before him and, instead,
confining his inquiry to the issue of non-compliance with
clause 6.3.
of the Council’s Disciplinary Procedure and Code Collective
Agreement;
2.2
The arbitrator exceeded his powers by issuing an award to the effect
that the
City had breached the Code, for which no legal basis existed
in that the Code was of no force and effect at the time when the
award
was issued.
2.3
Evidence was essential to establish the existence or extent of unfair
conduct
on the part of the City but the arbitrator declined to hear
evidence. This precluded him from arriving at a reasonable decision
on the issue and amounts to a gross irregularity.
[3]
The main body of the award was short and bears recording as follows:
“
This
matter was scheduled for and to be heard as an arbitration process on
22 April 2014. The Applicant appeared in person and Mr
MJ Stopka
represented the respondent.
I
was advised by the applicant from the onset of the arbitration
proceedings that the respondent failed to comply with clause 6.3
of
the SALGBC – Disciplinary Procedure and Code Collective
Agreement and the applicant will raise this alleged non-compliance
as
a procedural irregularity.
I
raised my concerns regarding the consequences of such alleged
non-compliance and whether it is correct to raise such alleged
non-compliance in the absence of condonation being applied for and
granted, as procedural unfairness. I advised the parties of the
decision handed down by the Labour Appeal Court in Revan Civil
Engineering Contractors & others v National Union of
Mineworkers & others (2012) 33 ILJ 1846 (LAC)
and
indicated to them that I need to determine the issue of
lawfulness/validity of the disciplinary process and the subsequent
findings and sanction before I can deal with
whether
the respondent committed an unfair labour practice regarding demotion
(disciplinary sanction short of dismissal).
[1]
I
advised the parties that I am bound by the decisions of the Labour
Appeal court and it was therefore imperative that I satisfy
myself
first whether the disciplinary action, findings and sanction were
lawful and/or valid
I
therefore made the following order:
“
The
parties are required to submit written submissions to the SALGBC, on
or before 12 May 2014, wherein they are required to:
(a)
Address the issue as to whether there was non-compliance with clause
6.3
of the Code;
(b)
If so, whether the disciplinary action taken against the applicant
was
lawful and/or valid;
(c)
Whether I have the power to determine whether the respondent
committed
an unfair labour practice in the event of the disciplinary
action, findings and sanction being unlawful and/or invalid;
(d)
What relief, if any, must be awarded if the disciplinary action taken
was unlawful and/or invalid?
The
parties will reply to each other’s written submissions, if
required, by no later than 15 May 2014 where after an award
will be
issued within 14 days”.
Both
parties filed their respective submissions in line with the order I
made and I am required to issue an award based on the issues
as
raised in my order as outlined above.
I
must perhaps state that just prior to me considering the submissions
made and writing this award the SALGBC offices provided me
with a
judgement issued by the Honourable Justice Steenkamp on 26 May 2014
in the matter between
SAMWU obo T
Jacobs v City of Cape Town & others
(Case
No: C701/13). The judgement concerns an application for the review of
an arbitration award issued by myself where I found
that I did not
have the power to make a decision that the disciplinary hearing was
null and void. The facts of the matter were
similar to the facts in
this matter in that it concerned the failure by the City of Cape Town
to comply with clause 6.3 of the
Disciplinary Code and Procedure.
Judge
Steenkamp considered the application for review and found, in
essence, that because the Disciplinary Code and Procedure forms
part
of a collective agreement and as such gives rise to contractual
rights, the arbitrator had the power and in fact was obliged
to issue
a declaratory award to the effect that the disciplinary hearing was
null and void due to the employer’s non-compliance
with clause
6.3. The judge reviewed the award and found that the disciplinary
hearing was invalid and of no force and effect. The
employer was
ordered to reinstate the employee in her position retrospectively
with no loss of benefits.
The
issues in the matter currently before me are similarly based on
the respondent’s alleged non-compliance with clause
6.3 with no
application for condonation having been applied for. The respondent
in this matter however disputes that they failed
to comply with
clause 6.3. I am as such required to first make a decision on this
issue before I proceed to deal with the consequences
of a failure to
comply with clause 6.3.
Did
the respondent comply with clause 6.3 of the Code?
The
respondent concedes in its written submissions that the allegations
of mismanagement at the Mannenberg Sports Field was brought
to the
respondent’s attention by Arthur Adams, a Professional Officer
in the Sports and Recreations Department, to Mr Robert
Richards, the
investigating officer during June 2012.Whilst in the process of
investigating the allegations of mismanagement at
Mannenberg Sports
Field, a second allegation of mismanagement by the applicant was
reported to Mr Robert Richards when he set up
an interview with Mr
Jan Fourie, the District Manager, on 2 November 2012.
Both
investigations were concluded during February 2013 and the reports
were submitted to the Director: Sports and Recreation and
Amenities
for consideration. The disciplinary charges were formulated and
served on the applicant on 10 April 2013, which the respondent
claimed was within the three month period given the fact that the
report was submitted on 18 February 2013.
I
do not intend to analyse the submissions any further. I am satisfied
that the three month period in terms of clause 6.3 started
running as
from June 2012 and on 2 November 2012 respectively and that, since
the respondent only charged the applicant on 10 April
2013, clause
6.3 has not been complied with.
The
respondent was obliged to seek condonation, which they failed to do.
Effect
on non-compliance with clause 6.3
I
am bound by the decisions of the Labour Court and based on the
judgement issued by Judge Steenkamp where he reviewed a previous
award issued by myself, I have no option but to find that the
disciplinary hearing and the sanction of demotion is invalid and
of
no force and effect.”
[4]
It is not necessary for me to deal with the vexed questions raised in
this review relating to the applicability of the collective
agreement
in question, or the correctness or otherwise of
SAMWU
obo T Jacobs v City of Cape Town & others
(Case
No: C701/13).
The LAC will be seized
with deciding whether the latter matter was correctly decided, or
whether the judgment in
Tsengwa v Knysna
Municipality and Others
(Case number
C457/14) which took a different approach stands to be upheld. In
addition, this court’s order in
City
of Cape Town v Independent Municipal and Allied Trade Union
(case number C884/2014) which declared the said collective agreement
not binding upon the City, is set to be heard in the Labour
Appeal
Court.
[5]
These questions are not necessary to address because the award stands
to be reviewed on the basis that the arbitrator failed
to understand
the nature of the enquiry before him and/or exceeded his powers by
failing to resolve the dispute about an alleged
unfair labour
practice that had been placed before him and, instead, confined his
inquiry to the issue of non-compliance with clause
6.3. of the
Council’s Disciplinary Code, i.e. the collective agreement.
[6] In
Hospera obo TS Tshambi and Department of Health, KwaZulu-Natal
(delivered on 24 March 2016), the LAC stated a follows:
“
An
arbitrator is required to determine the true dispute between the
parties. To that end, it is necessary to establish the relevant
facts
and construe the category of dispute correctly. An arbitrator must
make an objective finding about what is the dispute to
be determined.
This Court in
Wardlaw
v Supreme Mouldings (Pty) Ltd (Wardlaw),
[2]
addressed directly the question of whether the employees’
characterisation of a dispute should enjoy deference and rejected
that approach. Distinguishing the formalistic school of thought from
that of the substantive school of thought, this Court held
that the
latter should prevail. As a result, in
Wardlaw,
an arbitrator was held to have incorrectly assumed jurisdiction over
a dispute that was about an automatically unfair dismissal,
a
category of dispute reserved for adjudication by the Labour Court.
The Constitutional Court disposed of this issue in
CUSA
v Tao Ying Industries and Others
[3]
‘
A
commissioner must, as the LRA requires, 'deal with the
substantial merits of the dispute'. This can only be done by
ascertaining
the real dispute between the parties. In deciding what
the real dispute between the parties is, a commissioner is not
necessarily
bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying
nature. A commissioner is required to take all the
facts into consideration including the description of the nature of
the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be borne in mind is
that there is no provision for pleadings in the arbitration process
which helps to define disputes in civil litigation. Indeed,
the
material that a commissioner will have prior to a hearing will
consist of standard forms which record the nature of the dispute
and
the desired outcome. The informal nature of the arbitration process
permits a commissioner to determine what the real dispute
between the
parties is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence
is in.’”
[6]
In this matter, the arbitrator did not scrutinise what the dispute
before him was in a situation in which it had been referred
to him
under section 191 of the LRA. Having been told that there may have
been a breach of the collective agreement in question,
he simply
turned his attention to that issue, and misconstrued the nature of
the enquiry before him i.e. the unfair labour practice
dispute
relating to demotion referred to the first respondent. He failed to
take account of facts which the City wished to lead
in evidence in
relation to its’ alleged unfair conduct. In all the
circumstances the award stands to be set aside. I do not
consider it
apposite to make a costs order in this matter.
[7] I
make the following order:
Order
:
1.
The award under case number WCM 021411 is reviewed and set aside;
2.
The dispute is remitted back to the first respondent for arbitration
anew before an arbitrator other than second respondent.
3.
There is no order as to costs.
_____________
H. Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
A.C Freund SC instructed by Bradley Conradie Halton Cheadle
Third
Respondent: Guy and Associates
[1]
Emphasis my
own
[2]
(2007) 28
ILJ 1042 (LAC).
[3]
(2008) 29
ILJ 2461 (CC) at para 66.