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[2016] ZALCPE 22
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Nxumalo v Commission for Conciliation, Mediation and Arbitration and Others (P69/13) [2016] ZALCPE 22 (17 November 2016)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P69/13
NQOBILE MOFFAT
NXUMALO
Applicant
And
THE COMMISSION FOR
CONCILIATION,
MEDIATION
& ARBITRATION
First Respondent
COMMISSIONER M
NDUZULWANA
Second Respondent
COMMISSIONER
ANTHONY MARE N. O
Third Respondent
COMMISSIONER PJ
CLOETE N. O
Fourth
Respondent
COMMISSIONER THEMBA
CHOBOKOANE N. O
Fifth Respondent
COMMISSIONER EBM
VAN ZUYDUM N. O
Sixth Respondent
BORDER CRICKET
(NPC)
Seventh Respondent
Heard:
26 October 2016
Delivered:
17 November 2016
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The Applicant seeks an order reviewing and setting aside a ruling
issued under case number ECEL184/13 by the Second Respondent
(Commissioner Nduzulwana) dated 03 June 2013, in terms of which the
Applicant’s alleged unfair dismissal dispute was dismissed.
Background:
[2]
The Applicant held the position of Chief Financial Officer of the
Seventh Respondent (Border Cricket) from 1 February 2010 until
his
dismissal on 24 December 2012. Having referred an alleged unfair
dismissal dispute to the CCMA, the matter was initially set
down for
con/arb proceedings on 15 February 2013. Following unsuccessful
conciliation, the Applicant had then referred the dispute
for
arbitration.
[3]
The dispute was set-down for arbitration before Commissioner
Nduzulwana on 9 April 2013. The proceedings only went as far as
a
protracted process of narrowing down of issues, and were adjourned.
Emanating from those proceedings, the Applicant thereafter
wrote a
letter of complaint to the Senior Commissioner (Eastern Cape CCMA) on
29 April 2013 in relation to the conduct of Commissioner
Nduzulwana.
The Applicant’s contention was that he did not receive a
response from the Senior Commissioner in regard to his
concerns. As
it however appears from the bundle of documents
[1]
,
Commissioner Nduzulwana was made aware of the complaint and had in
fact responded to the Applicant’s allegations in writing
to the
Senior Commissioner on 13 May 2013.
[4]
The arbitration proceedings were re-scheduled for 3 June 2013. The
Applicant had attended the proceedings unrepresented, and
had raised
some ‘preliminary’ points related to the complaint he had
lodged, and the fact that he was not properly
notified of the
proceedings. The Applicant’s contention was that he had not
received a proper notice of set-down, and was
only informed by the
CCMA via ‘SMS’ on 31 May 2013 of the proceedings. He had
upon receipt of the ‘SMS’
made enquiries with the CCMA
and was informed that the notice of set-down was despatched on 10 May
2013. He nevertheless contends
that he did not receive the notice of
set-down.
The
second issue was in respect of his complaint to the Senior
Commissioner. His contention was that the arbitration could not
proceed until his concerns were addressed.
[5]
The Applicant then requested an adjournment for ten minutes to
‘consult’, insisting nevertheless that he was unable
to
continue because of his initial complaint. At some point the
Commissioner adjourned the proceedings as he also needed to
investigate
the circumstances the notice of set-down was not received
as alleged by the Applicant. The Commissioner’s investigations
revealed that the notice of set-down was sent to Pick ‘n
Pay/Beacon Bay Post Office on 10 May 2013 and was returned to the
East London Post Office on 17 May 2013 from where it was initially
sent. That notice was still however to be collected by the CCMA
from
the post office, as it remained unclaimed. The Commissioner had also
established that the CCMA also sent an e-mail to the
Applicant on 10
May 2013 and a reminder by ‘SMS’.
[6]
The Applicant had nevertheless insisted that he was not prepared to
proceed with the matter because his previous complaint against
the
Commissioner had not been attended to by the Senior Commissioner. The
Commissioner informed the Applicant that there was no
‘formal
application for his recusal’, and that there was no basis in
law or authorities for the request to postpone
the proceedings. The
Commissioner then made a ruling that the matter would proceed as
scheduled.
[7]
The Applicant informed the Commissioner that he was ‘
not
going to be part of this’
, at which stage the Commissioner
warned him that if he decided to leave, that was his choice, but that
the arbitration would proceed
in his absence. The Applicant then
asked for a few minutes’ adjournment at which the Commissioner
refused. Again, the Applicant
informed the Commissioner that he was
going to see the Senior Commissioner, stating that he was unable to
proceed. The Applicant
then left the proceedings, and the
Commissioner proceeded with the arbitration, at which stage the
Border Cricket representative
requested that the matter be dismissed.
The Commissioner accordingly dismissed the matter.
[8]
In dismissing the matter, the Commissioner relied on the provisions
of section 138 (5) of the LRA
[2]
and Rule 30 (1) of the CCMA Rules
[3]
,
and concluded that by walking out of the proceedings despite being
warned of the consequences, the Applicant had abandoned his
case.
Subsequent
applications:
[9]
A ruling by a Commissioner dismissing a matter in terms of the
provisions of section 138 (5) (a) and Rule 30 of the CCMA Rules
would
ordinarily be a matter for considerations under the provisions of
section 144 of the LRA read together with Rules 31 and
32 of the CCMA
Rules. However, in this case, this matter ended up being before this
Court in terms of section 145 of the LRA because
of the following
events;
[10]
The Applicant had lodged an application in terms of section 144 of
the LRA to have the ruling rescinded. That application was
opposed
and heard on 13 November 2013. It was dismissed on 29 November 2013
by the Fourth Respondent (Commissioner Cloete), who
had concluded
that the Applicant was not ‘
absent from the proceedings but
had abandoned them’
for the purposes of the application of
the provisions of Rule 30 of the CCMA Rules. To that end,
Commissioner Cloete concluded that
the matter had to be dealt with in
terms of the provisions of section 145 of the LRA.
[11]
To the extent that it was contended that Commissioner Cloete’s
ruling sustained a plea of
res judicata
, this in my view
cannot be so, in that the application before Commissioner Cloete was
brought in terms of section 144 of the LRA,
whilst the one before
this Court is in terms of section 145 read with section 158 of the
LRA. Accordingly, and as correctly pointed
out on behalf of the
Applicant, both applications were not founded on the same cause of
action. In any event, I did not understand
this point to be seriously
pursued by Border Cricket.
[12]
There was a further application to amend the Notice of Motion in the
initial review application to include the Third to Sixth
Respondents
after they had issued a variety of rulings related to several
applications/referrals brought before the CCMA by the
Applicant after
review proceedings were launched. The Applicant has however
since abandoned those amendments or attempts
to consolidate those
disputes.
The
review test and evaluation:
[13]
Section 145 (1) of the LRA provides that any party to a dispute who
alleges a defect in any arbitration proceedings under the
auspices of
the Commission may apply to the Labour Court for an order setting
aside the arbitration award. Under section 145 (2)
of the LRA, a
defect referred to in subsection (1), means that the commissioner (i)
committed misconduct in relation to the duties
of the commissioner as
an arbitrator; (ii) committed a gross irregularity in the conduct of
the arbitration proceedings; or (iii)
exceeded the commissioner’s
powers.
[14]
Misconduct in relation to the duties of a commissioner ordinarily
denotes
wrongful
or improper conduct on the part of the Commissioner, which has the
effect of rendering not only the outcome but also the
arbitration
process unfair
[4]
.
A failure to have regard to the circumstances of the case prevents a
party from having its case fully and fairly determined, and
would
constitute gross irregularity. Excess of powers ordinarily implies
exceeding powers as conferred by the provisions of the
LRA, including
discretionary powers. In an explication of the review test as
enunciated in
Sidumo
[5]
,
the Labour Appeal Court in
Goldfields
held that;
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at
pains to state that
arbitration awards made under the Labour Relations Act
(LRA)
continue to be determined in terms of s145 of the LRA but that the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers will not lead automatically to a setting aside
of the award if any of the above grounds are found to
be present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged, the enquiry
is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result was unreasonable,
or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision-maker could come on the available material.’
[6]
[15]
In this case, the issue for determination is whether the ruling is
reviewable to the extent that the Commissioner had considered
the
provisions of section 138 (5) of the LRA read together with Rule 30
of the CCMA Rules, and secondly, whether the Commissioner
in
dismissing the dispute, had acted procedurally fairly. To this end,
it is not always so that the test of reasonableness would
find
application in each instance.
[16]
It
is accepted that in terms of section 138(1) of the LRA, a
commissioner may conduct arbitration proceedings in any manner that
he/she considers appropriate in order to determine the dispute fairly
and quickly, but must deal with the substantial merits of
the dispute
with the minimum of legal formalities
[7]
.
The basic premise of such proceedings is that of natural justice and
a fair unbiased hearing. In this regard, it has been held
that
arbitrators therefore need to exercise their entitlement to conduct
the proceedings in the manner they deem appropriate, with
the
necessary circumspection and good sense
[8]
.
The main objective of review proceedings is to determine whether a
Commissioner has afforded parties before him or her a fair
hearing,
and this is determined from the manner in which the hearing was
conducted, from the manner in which the Commissioner approached
the
issues before him or her, or from the conclusions reached.
[17]
Commissioners during arbitration proceedings may be confronted with
instances where parties to a dispute walk out because of
a variety of
reasons, some of which might be misguided. Parties may walk out of
proceedings when a postponement is refused, or
where a commissioner
refuses to recuse himself or herself, or when a commissioner makes an
adverse ruling in the course of proceedings,
or where a party is
generally of the view that it is not being afforded a fair hearing.
[18]
The provisions of section 138 (5) (a) of the LRA and Rule 30 of the
CCMA Rules are however clear. Thus, if a party fails to
appear in
person or to be represented at the arbitration proceedings, and the
party had referred the dispute to the Commission,
the commissioner
may
dismiss the matter. By virtue of the word, ‘
may’
,
it implies that the Commissioner has a discretion whether or not to
dismiss, taking into account the provisions of Rule 30 (2),
which
requires the Commissioner to be satisfied that a party (defaulting
party), had been properly notified of the date, time and
venue of the
proceedings.
[19]
There is therefore no provision in either the LRA or the CCMA for
instances where the referring party walks out of the arbitration
proceedings for whatever reason. Be that as it may, the provisions of
section 138 (5) (a) of the LRA and Rule 30 of the CCMA Rules
could
not have been applicable in this case as concluded by Commissioner
Nduzulwana, due to the reason that the Applicant was present
in those
proceedings. The only issue is that the Applicant had walked out of
those proceedings, and a party that walks out of the
proceedings
cannot be deemed to ‘
have
failed
to
appear in person or to be represented at the arbitration proceedings’
within the meaning of section 138 (5) (a) of the LRA. At most, that
party failed to remain in attendance until the conclusion of
the
proceedings. Thus as correctly pointed out on behalf of the
Applicant, to have dismissed the matter on the basis of the
provisions
of section 138 (5) (a) of the LRA and Rule 30 of the CCMA
Rules was indeed a misapplication of those provisions.
[20]
Where a Commissioner has in the course of proceedings issued a ruling
in regards to any interlocutory application or any other
matter in
the course of those proceedings, which ruling does not have the
effect of finally disposing of the main dispute before
him or her,
the aggrieved party is precluded from approaching this court for a
review of that ruling by virtue of the provisions
of section 158 (1B)
of the LRA. Effectively, then a party aggrieved by an adverse ruling
during the course of arbitration proceedings
is ordinarily expected
to go through that process, irrespective of his or her misgivings,
until finalised, and to thereafter review
the entire award if still
aggrieved. The rationale behind this approach, which I fully align
myself with, is to avoid piece-meal
litigation.
[21]
A referring party that walks out of arbitration proceedings for
whatever reason, and despite being forewarned of the consequences
thereof, risks its case being dismissed on account of either having
abandoned those proceedings, or alternatively, having waived
its
right to present its case. Even then, when matters are dismissed
under these circumstances, it is still expected of the Commissioner
to act fairly. Thus, it does not follow in each instance when a party
walks out of proceedings that it should be deemed that a
matter has
been abandoned, or that a party had waived its rights to have its
matter determined. The primary consideration in all
instances is
whether ultimately, the Commissioner exercised his or her duties
fairly in the conduct of proceedings, including arriving
at the
decision that a matter is either abandoned or that a party had waived
its rights to have its matter heard.
[22]
To the extent that a party that walks out of proceedings may be
deemed to have abandoned those proceedings or waived its rights
to
have its matter determined, a further consideration is that there
must be a basis for a conclusion to be reached that proceedings
have
indeed been abandoned or that a party had waived its rights.
Accordingly,
the
question of whether a party has waived its right is a question of
fact, as a waiver of a right cannot be presumed
[9]
.
It has further been held in that it must be shown that a party that
is said to have waived its right had full knowledge of its
rights and
that its conduct was irreconcilable with continued existence of such
rights or with the intention of enforcing them
[10]
.
[23]
The circumstances of this case are peculiar for several reasons. Upon
the Applicant having complained about not being properly
served with
a notice of set down, Commissioner Nduzulwana went out of his way to
establish the circumstances the notice might not
have been received
as alleged by the Applicant. To sum up, the Commissioner had
established that the notice of set-down as sent
to the Applicant
remained unclaimed from the post office. Although the Commissioner
was also informed that the Applicant was further
notified by email on
10 May 2013, proof in that regard had not been made available to him
at a point when he decided to dismiss
the matter.
[24]
In the light of these factors, and to the extent that there was
nothing before the Commissioner to demonstrate that the Applicant
was
indeed timeously and properly notified of the arbitration
proceedings, there was no cause to insist on the matter proceedings,
as clearly the Applicant had not been properly notified.
[25]
Even if the Commissioner may have cause to believe that the Applicant
was properly and timeously notified of the proceedings,
the second
issue raised by the Applicant was even more serious. In his
letter
[11]
to the Senior
Commissioner, the Applicant complained of irregularities, and
incompetence or bias on the part of Commissioner Nduzulwana
during
the proceedings of 9 April 2013. Effectively, he had requested that
the Commissioner should not arbitrate his dispute. As
already
indicated, Commissioner Nduzulwana had responded to the complaint on
13 May 2013, and was fully aware of its contents and
concerns raised
about his partiality.
[26]
Notwithstanding the above, Commissioner Nduzulwana’s contention
however was that there was no law or authority upon which
the
Applicant could rely upon in not proceeding with the matter until his
complaint was addressed. The Commissioner went on to
state that he
did not have the complaint in his file, and that if ever such a
complaint was directed for the attention of the proceedings,
it
should have been served on the employer in terms of Rule 31 of the
CCMA Rules
[12]
. The
Commissioner further stated that there was no application before him
in terms of Rule 31, and could therefore not comment
on the complaint
forwarded to the Senior Commissioner.
[27]
The complaint to the Senior Commissioner pertained to Commissioner
Nduzulwana’s impartiality and manner with which he
had
conducted the proceedings. It is trite that where there is a
reasonable apprehension that a Commissioner is biased or has
conducted proceedings in a manner that give rise to a reasonable
perception of bias, this may give rise to a reviewable irregularity.
Ordinarily, the aggrieved party may ask the Commissioner to recuse
him/herself by way of an application in terms of Rule 31 of
the CCMA
Rules.
[28]
The circumstances of this case are however not ordinary. The
Commissioner having been made aware of the complaint against him
ought not to have dismissed the matter in the manner he had, let
alone continue with the proceedings. It is acknowledged from the
record of proceedings that the Commissioner was clearly dealing with
an uncooperative and obstreperous litigant as correctly pointed
on on
behalf of Border Cricket. Commissioners are nevertheless expected to
deal with such situations, control their processes and
ensure that
they act fairly but firmly. Thus Commissioners cannot take shortcuts,
and gratuitously dismiss matters when confronted
with ‘difficult’
litigants simply because it is convenient to do so. It is still
expected of Commissioners irrespective
how trying the circumstances
of their proceedings may be, to conduct those processes fairly and in
an unbiased manner. Thus Commissioners
cannot let their frustrations
with obstreperous litigants prevail over the need to conduct
themselves and their processes in a
fair and unbiased manner.
[29]
In the light of the above, and bearing in mind that the Commissioner
was aware of concerns surrounding his impartiality, at
the very
least, it was expected of him to advise the Applicant, who was not
familiar with the CCMA Rules and procedures, to bring
a formal
application for his recusal, instead of merely reading the provisions
of Rule 31 to him as he had done, and proceedings
with the matter. In
the alternative, to the extent that the Applicant either sought a
postponement on account of not having received
a proper notice of
set-down, or where the Applicant sought the recusal of the
Commissioner, nothing prevented the Commissioner
from considering any
such request without a formal application in that regard, as the
provisions of Rule 31 (10) of the CCMA Rules
allowed him to do so.
[30]
The Commissioner in my view took an overly technical approach to the
dilemma he was faced with and chose a convenient but unfair
path in
getting out of that dilemma. The fact that the letter of complaint
was not in the file or was not brought to the attention
of the other
party was of no consequence. In any event, the complaint was
addressed to the Senior Commissioner for his/her intervention,
and
sadly, there is nothing to suggest that there was a formal response
to the complaint.
[31]
A further important consideration in this matter is that it cannot be
said on the facts that the Applicant had abandoned the
proceedings or
waived his rights to have his dispute heard. There is no basis for a
conclusion to be reached that the Applicant’s
conduct was
plainly inconsistent with an intention to enforce his right to a
procedurally fair hearing. This conclusion is premised
on the fact
that as can be gleaned from the record, after requesting an
adjournment on several occasions, the Applicant walked
out of the
proceedings as his intention was to go and see the Senior
Commissioner about his complaint which remained unattended
to.
Commissioner Nduzulwana other than downplaying the importance of the
Applicant’s complaint, incorrectly presumed that
the Applicant
had abandoned the proceedings or waived his rights to a procedurally
fair hearing when this was not the case. The
Applicant’s
intention was clearly to seek the intervention of the Senior
Commissioner in respect of his previous complaint,
even if the latter
would not have been in a position to dictate to Commissioner
Nduzulwana as to how to conduct his own proceedings.
[32]
In the light of the above, and having considered the circumstances
and facts of this case as they were before the Commissioner,
the
conclusions to be reached is that in dismissing the matter in the
manner he had, the Commissioner committed a gross irregularity
in the
conduct of proceedings, and also committed misconduct in relation to
his duties as a commissioner within the meaning of
section 145 (2)
(i) and (ii) of the LRA. Such conduct had the effect of rendering not
only the outcome but also the entire process
unfair. In the light of
these conclusions, it follows that the ruling ought to be reviewed
and set aside.
[33]
I have further had regard to the requirements of law and fairness
insofar as the issue of costs is concerned, and I am of the
view that
the facts and circumstances of this case do not call for any cost
order to be made.
Order:
i.
The
ruling issued by the Second Respondent under case number ECEL184/14
dated 03 June 2013 is reviewed and set aside.
ii.
The
First Respondent is ordered to allocate a set-down date for the
hearing of the dispute between the parties
de
novo
before a Senior Commissioner other than the Second Respondent.
iii.
There
is no order as to costs.
________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. B. Dyke with Adv. L Ah Shene
Instructed
by:
Brown Braude & Vlok INC
On
behalf of the Seventh Respondent:
Adv. JG Grogan
Instructed
by:
Wesley Pretorius & Associates
[1]
Page 304 of the Record
[2]
Which provide that;
‘
(5)
If a party to the dispute fails to appear in person or to be
represented
at the arbitration proceedings, and that party -
(a)
had referred the dispute to the Commission, the commissioner may
dismiss the matter; or
(b)
had not referred the dispute to the Commission, the commissioner
may
-
(i)
continue with the arbitration proceedings in the absence of
that party; or
(ii)
adjourn the arbitration proceedings to a later date.’
[3]
Its provisions are a replica of those of section 138 (5) of the LRA
[4]
County Fair Foods (Pty) Ltd v Theron NO and
Others (2000) 21 ILJ 2649 (LC) at para 7
[5]
Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others
2008 (2) SA 24(CC).
[6]
Gold Fields Mining South Africa (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation Mediation and Arbitration
and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at para
[14]
[7]
CUSA v Tao Ying Metal Industries and Others.
(2008) 29 ILJ 2461 (CC)
at
para 65, where it was held that;
‘
Consistent with the objectives of the
LRA, commissioners are required to 'deal with the substantial merits
of the dispute with
the minimum of legal formalities'…. Thus
the LRA permits commissioners to 'conduct the arbitration in a
manner that the
commissioner considers appropriate'. But in doing
so, commissioners must be guided by at least three considerations.
The first
is that they must resolve the real dispute between the
parties. Second, they must do so expeditiously. And, in resolving
the
labour dispute, they must act fairly to all the parties as the
LRA enjoins them to do.’
[8]
In Chabalala v Metal and Engineering
Industries Bargaining Council and Others (2014) 35 ILJ 1546
(LC) at para 33
[9]
McGenis v RAF
2009 JOL
24231 (KZD)
[10]
See also
Lufuno Mphaphuli and Associates (Pty)
Ltd v Andrews and Another
2009 (6) BCLR
527
(CC) at para [88] where it was held that;
‘
The
conclusion reached in paragraph 79 above is in accordance with
common law principles regarding waiver of rights. Waiver is
first
and foremost a matter of intention; the test to determine intention
to waive is objective, the alleged intention being
judged by its
outward manifestations adjudicated from the perspective of the other
party, as a reasonable person. Our courts
take cognisance of
the fact that persons do not as a rule lightly abandon their rights.
Waiver
is not presumed; it must be alleged and proved; not only must the
acts allegedly constituting the wavier be shown to have
occurred,
but it must also appear clearly and unequivocally from those facts
or otherwise that there was an intention to waive.
The onus is
strictly on the party asserting waiver; it must be shown that the
other party with full knowledge of the right decided
to abandon it,
whether expressly or by conduct plainly inconsistent with the
intention to enforce it. Waiver is a question of
fact and is
difficult to establish’.
[11]
Page 306 of the record
[12]
See lines 15 – 22 on page 149 of the record