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[2017] ZALCJHB 373
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SAMWU obo Ndaba v Ekurhuleni Metropolitan Municipality and Others (JR14/15) [2017] ZALCJHB 373 (16 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO
: JR14/15
DATE
:
2017-08-16
In
the matter between
SAMWU
obo BONGANI
NDABA
Applicant
and
EKURHULENI
METROPOLITAN MUNICIPALITY
First respondent
SALGBC
Second respondent
A
KRIEL
N.O.
Third respondent
J U D G M E N T
EX
TEMPORE
STEENKAMP
J
:
This
is an application by SAMWU acting on behalf of its member, Mr Bongani
Ndaba, to have a condonation application and an accompanying
rescission application by the third respondent, to whom I shall refer
as the arbitrator, under the auspices of the South African
Local
Government Bargaining Council dated 11 November 2014, reviewed and
set aside. It arises from the dismissal of the employee
by his
employer, the Ekurhuleni Metropolitan Municipality.
The
employee was a supervisor at a swimming pool run by the municipality
and was dismissed after he had been drinking alcohol whilst
on duty
at the swimming pool. The union referred a dispute to the bargaining
council. And although the municipality attended the
conciliation, it
did not attend the arbitration. Having heard the testimony of only
the employee, the arbitrator made an award
in his favour and ordered
the municipality to reinstate the employee retrospectively.
When
the award came to the attention of the municipality, it filed an
application for rescission, which was 15 days late. It applied
for
condonation at the same time. The arbitrator considered the
application and ruled that the municipality had shown good cause
why
both condonation and rescission should be granted. He or she –
I am not sure of the gender – took into account
that the
municipality, once it had received the award, had to investigate the
matter internally before instructing its attorneys
to proceed with
the application for rescission; and that it was not in wilful default
and that it had shown good cause as it had
a
bona
fide
defence, having dismissed the
employee for gross misconduct. The union essentially raised two
grounds of review, although set out
in fairly lengthy terms. The
first is that the arbitrator failed to consider the versions of both
parties before making the ruling.
And secondly, that he should have
found the municipality to be in wilful default.
In
his predecessor’s heads of argument and also in his oral
argument today Mr
Hilita
also raised the spectre of the bargaining council agreement and
submitted that the disciplinary hearing did not conform to the
prescripts of that agreement. I will first deal with that aspect.
Mr
Hilita
could not point me to any evidence in that regard that served before
the arbitrator. Ms
Saunders
,
who appears for the municipality, conceded that it had been raised in
the answering affidavit filed by the union in the rescission
application, but pointed out that that was the first time it had been
raised; that it did not serve in the initial disciplinary
enquiry or
in the arbitration; and in any event, that the municipality did have
a
bona fide
defence
to that attack. In that regard, she referred to
SAMWU
obo Dlamini v Mogale City Local Municipality
[2014] 12 BLLR 1236
(LC) where the court expressed the view that
clause 6.3:
“…
contemplates
the date when the alleged misconduct is brought to the attention of
the municipal manager in such a written form so
as to enable the
manager to be
prima facie
satisfied that specific misconduct exists so that
disciplinary proceedings can then forthwith be instituted on that
basis.”
She
submitted that it is not simply a matter of strictly applying the
three-month rule.
Mr
Hilita
countered in reply that that case is distinguishable from the present
one. Whatever the case may be, that is an argument that raises
at
least a
prima facie
defence
for the municipality, and that is something that can be canvassed
fully at arbitration. The element of good cause that is
applied to
rescission applications under section 144 of the Labour Relations
Act, namely a
prima facie
defence, has been established by the municipality.
The
other question is whether there is an explanation for the default; in
other words, whether the default is not wilful. The arbitrator
considered the explanation of the municipality; i.e. that its
administrative processes, being a big organisation, left it in the
lurch and that the notice of set-down at the bargaining council did
not come to the attention of the relevant people as plausible
and
acceptable.
This
court may have decided otherwise, but that is not the test. The test
is whether the conclusion reached by the arbitrator is
so
unreasonable that no other arbitrator could have come to the same
conclusion, or put differently: whether the conclusion of
the
arbitrator falls within a range of reasonable conclusions as set out
in
Sidumo v Rustenburg Platinum Mines
2008 (2) SA 23
(CC).
Although
the ruling does not set out much detail, it does set out the reasons
why the commissioner comes to the conclusion that
the employer, i.e.
the municipality, has shown good cause. And on the evidence before
her or him it appears to me that that is
a reasonable conclusion, or
at least a conclusion that another reasonable arbitrator could have
reached, especially since in deciding
on the prior issue of
condonation, the commissioner exercised a discretion.
That
leaves the question of the answering affidavit filed by the union.
That aspect of the review application did concern me greatly.
At
first glance, one is tempted to simply find that the
audi
alteram partem
principle has not been
complied with and to refer the matter back to another arbitrator. I
have been persuaded otherwise, firstly
because of the lengthy time
period that has already lapsed in this matter.
The
employee was dismissed almost five years ago. The ruling on
rescission was handed down in November 2014 -- almost three years
ago. Mr
Hilita
submitted that his client, namely the
individual employee, is being prejudiced by the long delay. The short
answer to that is that
this matter could have been finalised three
years ago, had both parties simply gone back to arbitration as the
arbitrator had ruled.
I
have perused the answering affidavit filed by the union carefully. I
should add that it was left up to the court to do that as
neither the
union’s attorney nor its counsel had perused the pleadings at
all before coming to court today – more of
that later.
I
am persuaded by Ms
Saunders
’s
submission that the answering affidavit does not cast any real doubt
on the version of the municipality that served before
the arbitrator;
i.e. that it was not aware of the date of the arbitration. It is
simply met with a bald denial and the union pointing
out that the
notice of set-down had been faxed to the municipality. It is highly
unlikely that the municipality, having gone to
the conciliation and
having pursued the rescission application diligently immediately
after the award had come to its notice, would
simply have wilfully
stayed away from the arbitration, especially where
prima
facie
it seems to have had good reason
to dismiss the employee for gross misconduct.
In
those circumstances and taking into account holistically all of the
evidence, I am persuaded that the conclusion reached by the
arbitrator, both on condonation and rescission, is not so
unreasonable that no other arbitrator could have come to the same
conclusion,
even having considered all of the affidavits that were
filed by both parties. The award is not open to review.
That
leaves the question of costs. Ms
Saunders
submitted that the union should be held liable for the municipality’s
costs. With regard to the period up to the 11
th
of August 2017 I am not persuaded. There is, firstly, an ongoing
relationship between the union and the municipality. Secondly,
the
employee had an award in his favour. And the municipality did exhibit
some negligence in its own administrative processes by
not being able
to bring the rescission application timeously before the bargaining
council, and instead doing so 15 days late.
The
costs since then are of a different nature. The union was represented
when it brought this application and, as far as the court
was aware,
until today by Thulisile P Malimela Attorneys. Its heads of argument
delivered on the 24
th
of August 2015 were drafted by N Ntuli who appears to be an advocate.
When the matter was called today, Mr
Hilita,
an advocate from the Johannesburg Bar, appeared for the union. I
asked him whether he intended to file supplementary heads or whether
he would argue from the heads of his predecessor, and he indicated
that he would do the latter.
It
was only once he was already about 15 minutes into his argument and
he referred to a certain document that the Court asked Mr
Hilita
to point the court to the page on which that document appears. And he
then, to the Court’s surprise, indicated to the Court
that he
had no pleadings or record or transcript whatsoever before him. The
only thing he had was his predecessor’s heads
of argument. He
had absolutely no paginated papers on which to argue.
The
Court asked Mr Hilita’s attorney to explain himself. It was
only then that a Mr Mxolisi Maome got up and said that he
is now
representing the union. He had not filed any notice that he had come
on record; nor had his predecessors filed a notice
of withdrawal as
attorneys of record. The Court accepted his word as an officer of the
court that he came on record on the 11
th
of August 2017.
Despite
that fact, he did not have the pleadings either. It rapidly became
apparent that neither Mr Maome nor his counsel had even
read the
pleadings that served before this Court or that had served before the
arbitrator. Nevertheless, they persisted in accepting
instructions
and a brief and charging a fee to come and argue before this Court
today a review application without even knowing
on what that
application or the ruling which they seek to review rests, not having
read those papers.
The
Court had to adjourn in order for SAMWU’s legal team to get a
copy of the papers on which they attempted to argue their
client’s
case before court today, thus wasting an hour and a half of both the
court’s and the respondent’s time.
I
forewarned Mr
Hilita
that I would ask him to address the court why a cost order
de
bonis propriis
should not be made
against him and his attorney, and asked him to use the time to get
instructions and to address the Court in
that regard. The only
submission he could make is that his attorney was unable to obtain
the pleadings. Neither he nor his attorney
could explain why. There
is no explanation before the Court why they could not obtain it from
their client from whom they ostensibly
received instructions; nor why
they did not obtain a copy from the court.
The
attorney said from the bar that he had come to court on Friday the
11
th
August to obtain a copy of the court file, and the registrar or
another official indicated to him that it had already gone to the
presiding judge. The presiding judge has been in chambers since eight
o'clock on Monday morning – that was the 14
th
of August – until this matter was called this morning, the 16
th
of August at ten o'clock. And at no stage did Mr Maome make any
attempt to either retrieve the court file from the presiding judge
or
to have the courtesy to come to the judge’s chambers and
explain the predicament in which he found himself or on what
basis he
accepted the union’s instructions.
In
those circumstances, I cannot see in law or fairness why the union
should be held responsible for today’s costs in circumstances
where its legal team came to court wholly unprepared and without
having considered the pleadings and record on which it purports
to
base its argument on review. I, therefore, make the following order:
-
- - - - - - - - - - - - -
ORDER
1.
The application for review is dismissed.
2.
The matter is remitted to the South African Local Government
Bargaining Council for arbitration on the merits
before a panellist
other than the third respondent.
3.
There is no order as to costs until 11 August 2017.
4.
The applicant’s attorney, Mr Maome, and its counsel, Mr Hilita,
are ordered to pay today’s costs
de bonis propriis
jointly and severally; the one paying, the other to be absolved.
-
- - - - - - - - - - - - -
Counsel
for Applicant
:
Adv Xolani Hilita
Instructed
by
Mxolisi Maome.
Counsel
for Respondent
:
Adv Sarah Saunders
Instructed
by
Ivan-Davies Hammerschlag.
Date
of Judgment
:
2017-08-16
-
- - - - - - - - - - - -
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