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[2017] ZALCJHB 150
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Impala Platinum Refineries Limited v National Union of Mineworkers obo Retselisitsoe and Others (JR822/15, JR769/15, JR974/15) [2017] ZALCJHB 150; [2017] 10 BLLR 1032 (LC) (10 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA JOHANNESBURG
CASE NO: JR822/15
CASE NO: JR769/15
CASE NO: JR974/15
Reportable
In
the matter between:
IMPALA
PLATINUM REFINERIES LIMITED
Applicant
and
NUM
obo
RETSELISITSOE
First
Respondent
LEHLOHONOLO
TAOLE
COMMISSIONER
BONGE MASOTHE N.O.
Second
Respondent
COMMISSION
FOR CONCILIATION MEDIATION
Third Respondent
AND
ARBITRATION
Heard:
21 September
2016
Delivered:
10 May 2017
Summary:
Failure by a commissioner to consider established principles relating
to the postponement of applications in respect of
arbitration
proceedings may constitute a reviewable irregularity.
JUDGMENT
MTHOMBENI
AJ
Introduction
[1]
This application concerns three separate applications which have been
consolidated in terms of a court order, dated 8 June 2016.
[2]
The following three applications have been consolidated:
2.1
An application brought by the applicant, under case number JR 822/15,
in terms of Section
145 of the Labour Relations Act 66,1995 (“the
LRA”) for the reviewing and setting aside of an arbitration
award under
case number GAJB 19923-14 (“the award”),dated
5 May 2015 and issued by the second respondent. (“the Award
Review
Application”)
2.2
An application brought by the applicant, under case number JR 769/15,
in terms of Section
158 (1) (g) of the LRA for the review and setting
aside of a ruling made by the second respondent during the
arbitration proceedings
prior to the issuing of the award.(“the
Ruling Review Application”)
2.3
An application brought by the first respondent, under case number JR
974/15,in terms of
Section 158 (1) (c) of the LRA for the enforcement
of the award issued by the second respondent.(“the Award
Enforcement Application”).
Background
[3]
The same material facts outlined below are common to all the
consolidated three applications.
[4]
The first respondent represents Retselisitsoe Lehlohonolo Taole
(“Taole”) who had been in the applicant’s
employ
since 1 July 2007.
[5]
On 3 June 2014, Taole approached the third respondent and referred an
unfair labour practice dispute relating to promotion,
following
Taole’s grievance emanating from the appointment of John Scott
Stevenson (“Stevenson”) to the position
of General
Manager.
[6]
Following a disciplinary enquiry where Taole had been found guilty of
misconduct, on 1 July 2014 the applicant dismissed Taole.
At the time
of his dismissal, Taole was employed as the Senior Chemical Engineer.
[7]
Aggrieved by his dismissal, during August 2014 Taole approached the
third respondent and referred a dispute, alleging unfair
dismissal.
[8]
The disputes were conciliated, but remained unresolved.
[9]
Consequently, the third respondent set down the unfair dismissal and
unfair labour practice disputes for arbitration for 17
March 2015 and
19 March 2015, respectively.
[10]
On 17 March 2015, Thami Mvumbi (“Mvumbi”) represented the
applicant at the arbitration proceedings in respect of
the unfair
dismissal dispute over which the second respondent (“the
commissioner”) presided. The applicant commenced
leading its
witnesses, but the matter could not be finalised and was, therefore,
adjourned whilst Teke Mothibe (“Mothibe”)
was still under
cross-examination.
[11]
On 19 March 2015, Mothibe represented the applicant at the
arbitration proceedings relating to the unfair labour practice
dispute. Owing to Stevenson’s absence at the arbitration
hearing, the matter was postponed 22 April 2015. To secure his
presence,
a subpoena was issued under the third respondent’s
auspices ordering Stevenson to be in attendance at the arbitration
proceedings
on 22 April 2015.
[12]
On 27 March 2015, the applicant received a notice of set down in
respect of the unfair dismissal dispute which was scheduled
for 22
April 2015.
[13]
On that day, the unfair labour practice dispute did not proceed as
commissioner Shardlow, who had been allocated the matter,
realised
that the unfair dismissal dispute had also been set down for the same
day. Eventually, the commissioner called the parties
to the hearing
venue. Mothibe advised the commissioner that, owing to an
administrative error on the part of the CCMA, the applicant
had only
prepared for the unfair labour practice dispute and, thereupon, made
an application for a postponement.
[14]
Thereafter, commissioner made a ruling that he would proceed.
Consequently, Mothibe and the applicant’s witnesses left
the
arbitration hearing venue. The commissioner proceeded in the absence
of the applicant and issued an award in terms of which
he found
Taole’s dismissal to have been both procedurally and
substantively unfair and ordered the applicant to reinstate
Taole
with retrospective effect.
Events prior to and
including the ruling
[15]
In the circumstances, it is in my view appropriate at this juncture
to determine the Ruling Review Application as the result
of such a
determination would be dispositive of the Award Review Application
and the Award Enforcement Application.
[16]
As alluded to above, the third respondent set down the unfair
dismissal dispute for 17 March 2015. The applicant was represented
by
Mvumbi and the matter was part heard. The cross-examination of
Mothibe had not been concluded. The commissioner and the parties
had
a discussion concerning a possible date to which the matter would be
adjourned. At this stage Mvumbi had left the proceedings.
[17]
The commissioner stated that there were no dates available in April
for the continuation of the matter. Taole mentioned that
he would be
in Europe in May 2015 and in Asia in June 2015.
[18]
Thereupon, the commissioner advised the parties that the matter would
proceed on 6 and 7 May 2015.
[19]
It appears that the commissioner and the parties got engaged in
another discussion, which is not captured in the record, concerning
dates. Thus, on 18 March 2015, Mothibe addressed an email to the
commissioner advising that Mvumbi would be available in June 2015.
In
reply. The commissioner indicated that he had already submitted the
file to case management and undertook to retrieve it and
advise the
parties about the new dates. Evidently, the commissioner did not
revert to the parties in this regard.
[20]
On 22 April 2015, Mothibe and the applicant’s witnesses for the
unfair labour dispute attended at the CCMA. However,
commissioner
Shardlow could not proceed because apparently the unfair dismissal
dispute had also been set down for that day. The
commissioner,
thereupon, took over and proceeded to continue with the unfair
dismissal dispute.
[21]
On that day, Mvumbi and other applicant’s witnesses were not
present at the CCMA.but Mothibe was in attendance.
[22]
Mothibe advised the commissioner that Mvumbi was not present and
explained that Mvumbi’s absence was due to an administrative
error on the part of the CCMA as the applicant had been, on receipt
of the notice of set down for the unfair dismissal dispute
been
advised telephonically by the CCMA that the notice of set down was in
respect of the unfair labour practice dispute.
[23]
This notwithstanding, the commissioner made a ruling that the matter
would proceed and gave the following reasons:
23.1
the parties were properly notified to attend the arbitration hearing;
23.2
there was no indication on the file that the arbitration hearing
should
not
proceed;
23.3
had the applicant approached the CCMA and was advised that the unfair
labour dispute would take precedence,
there was no reason why the
unfair dismissal was placed on the roll;
23.4
Mothibe did not furnish the commissioner with evidence that there was
an agreement between the parties that
the unfair labour practice
dispute would proceed on 22 April 2015; and
23.5
in the event of double booking, it is the prerogative of the CCMA to
determine which matter should proceed
having considered all the facts
and the circumstances.
Grounds
of review
[24] The applicant’s
grounds of review in respect of both applications are as follows:
First Ground of Review
24.1
The applicant submits that the commissioner committed misconduct
and/or gross irregularity in the proceedings
and/or exceeded his
powers and/or made a ruling that a reasonable decision maker could
not have come to in that:
24.1.1
during the arbitration proceedings the commissioner advised the
parties that the matter would not proceed in April 2015 and
made a
ruling to the effect that it would continue on 6 and 7 May 2015;
24.1.2
the CCMA had telephonically advised the applicant that the unfair
labour practice, not the unfair dismissal dispute, had
been set down
for 22 April 2015;
24.1.3
the subpoena issued to secure Stevenson’s attendance clearly
pointed to the unfair labour practice dispute being set
down for
hearing on 22 April 2015;
24.1.4
Mvumbi and the remaining witnesses for the unfair dismissal dispute
were not present at the arbitration hearing on 22 April
2015 and
Mothibe,who was not the applicant’s representative in respect
of the unfair dismissal dispute, was still under cross-examination;
24.1.5
the commissioner failed to take into consideration the administrative
error on the part of the CCMA in setting down both
the unfair labour
practice and unfair dismissal disputes on the 22 April 2015.
24.1.6
the commissioner overlooked and rejected important factors and
considerations relevant to the issue of postponement; and
24.1.7
The commissioner’s ruling resulted in the applicant being
denied a fair hearing, in violation of the
audi alteram partem
principle.
Second
Ground of Review
25.2
The applicant submits that the commissioner committed misconduct
and/or a gross irregularity in relation
to his duties as a
commissioner by failing to accurately construe and record the
submissions made to him, and consequently relying
on the incorrect
version of the applicant’s submissions in making the ruling,
thereby acting irrationally and unreasonably
in that:
25.2.1
the commissioner misconstrued and incorrectly captured the
applicant’s case by recording that the applicant had received
two notices of set down for the 22 April 2015,while the applicant had
only received one notice of set down in respect of which
it was
advised by the CCMA that it related to the unfair labour practice
dispute.
Analysis
and applicable legal principles
[26]
In my view, it is opportunistic of the applicant to assert that on 7
March 2015 the commissioner made a ruling that the arbitration
proceedings would continue on 6 and 7 May 2015, considering that on
18 March 2015 Mothibe had communicated with the commissioner
suggesting alternative dates in June 2015 on which Mvumbi would be
available. It cannot, thus, be said the commissioner had made
a
ruling on which the applicant had solely relied.
[27]
There is no corroborative evidence that the applicant had been
telephonically advised by the CCMA that the notice of
set down it had
received on 27 March 2015 in respect of the unfair dismissal
dispute had been, in fact, intended for the
unfair labour practice
dispute. This notwithstanding, given the events which unfolded prior
to the 22 April 2015 it is, as it shall
be set out below, probable
that the applicant had been so advised.
[28]
I am convinced that the applicant had prepared for the unfair labour
practice dispute, considering that a subpoena had been
issued to
secure Stevenson’s attendance, coupled with the CCMA advice.
Moreover, I am satisfied that the applicant was sincerely
labouring
under the impression that the unfair dismissal dispute was not set
down for that day. To illustrate,on 30 March 2015
Nicollette Jansen
van Rensburg,a Senior Human Resources Officer at the
applicant,addressed an email to Babalwa, a case management
officer at
the CCMA,confirming that the unfair labour practice dispute would
proceed on 22 April 2015 and that the unfair dismissal
dispute would
be scheduled for a date in June.
[29]
Contrary to the first respondent’s contention, in my view it
would have been unreasonable in the circumstances to expect
the
applicant to make a formal application for a postponement as
contemplated in Rule 23 of the CCMA Rules, for the applicant did
not
consider it necessary to do so. This Court has held that mere
non-compliance with the rule relating to postponements is not
adequate reason for declining an application for a postponement.
(See
NF Die
Casting (Pty) Ltd v Metal and Engineering
Bargaining Council and Others
[2002] BLLR 560
(LC) at [23] and
[25].
[30]
On 22 March 2015, Mothibe made submissions on why the applicant was
not ready to proceed owing,
inter alia
, to the absence of
Mvumbi, that Mothibe was still under cross-examination and that the
applicant’s witnesses were not present.
In my view, it is
unfathomable for the commissioner to have refused postponement in the
circumstances. The commissioner erred in
that:
30.1
he insisted on that the applicant had received a notice of set down
in respect of the unfair dismissal dispute
for 22 April 2015,while
downplaying the fact that on 18 March 2015 he had undertaken to
revert to the applicant concerning alternative
dates of the hearing;
30.2
he disregarded that Mothibe had indicated that a number of witnesses
that were crucial to the applicant’s
case were not present at
the hearing;
30.3
he, despite the fact that he had advised the parties on 17 March 2015
that there were no dates in April for
the arbitration to be
continued, declined to postpone the matter;
30.3
he disregarded the fact that Mothibe was not the applicant’s
representative in respect of the unfair
dismissal dispute; and
30.4
he disregarded that Mothibe ought to be re-examined after completion
of his cross-examination in circumstances
when Mvumbi was absent.
[31]
This Court has well-established principles in respect of postponement
of arbitration proceedings. These principles, which are
also equally
applicable to the CCMA arbitration proceedings, are encapsulated in
Insurance and
Banking Staff Association and Others v SA
Mutual Life Assurance Society
(2000) 21 ILJ 386 (LC).
[32]
It follows that the commissioner should have considered,
inter
alia
:
32.1
whether it was in the interest of justice and fairness that the
postponement be granted or refused;
32.2
what prejudice was likely to be suffered by either party should the
postponement be granted or refused;
32.3
whether such prejudice could be cured by an appropriate costs order;
and
32.4
whether the application was
bona fine
or a mere tactical
manoeuvre. (See
Petzer v Independent Broadcasting Authority
(2000) 5 LLD 409 (LC) at 410,
Massstores (Pty) Ltd t/a Builders
Warehouse v CCMA
and
Others
[2006] 6 BLLR 577
(LC)
Keerom
Casa Hotel v Heinrichs
and
Another
[1999] 1 BLLR 27
(LC)).
[33]
Instead, the commissioner failed to observe these principles, thereby
denying the applicant a fair hearing. Had he done so,
he would have
investigated the merits of the application of the postponement and
reach a reasonable conclusion.
[34]
I am, therefore, of the view that the commissioner, while he gave
extensive reasons which were unsupported by the material
before him
for his ruling, had failed to apply his mind to the merits of the
application, misdirected himself and made a gross
irregularity. Thus,
it cannot be said that the commissioner exercise his discretion in a
proper and judicial manner.
[35]
From this perspective, it cannot be said that the commissioner
reached a decision that a reasonable decision maker could have
made.
[36]
The applicant has asked for costs. I am, however, not convinced that
there are factors which in law and fairness warrant that
costs should
follow the result.
[37] In the
circumstances, I order as follows:
37.1
The ruling made on 22 April 2015 by the commissioner is reviewed and
set aside;
37.2
The arbitration award under case number GAJB 19923-14,dated 5 May
2015 and made by the commissioner, is consequently
set aside;
37.3
The dispute is remitted to third respondent to be heard
de novo
before a commissioner other the second respondent;
37.4
The application to enforce the arbitration award is dismissed; and
37.5 No
costs order is made.
_________________________
MTHOMBENI AJ
Acting Judge of the
Labour Court
Appearances
For Applicant:
Adv R Itzkin
Instructed
by:
Edward Nathan Sonnenberg Inc.
For the First Respondent:
Adv MV Sehunane
Instructed by:
Sehunane Attorneys