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[2017] ZALCJHB 370
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Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: J 492/2017
Reportable
In
the matter between:
MSAGALA,
HERBERT
Applicant
and
TRANSNET
SOC LTD
First
Respondent
NAGDEE,
YUSUF
N.O
Second
Respondent
TRANSNET
BARGAINING COUNCIL
Third Respondent
Application
heard: 6 October 2017
Judgment
delivered: 9 October 2017
JUDGMENT
VAN
NIEKERK J
[1]
This is an urgent application in which the applicant seeks an order
in terms of s 158 (1) (h), seeking to review and set aside
an
interlocutory ruling made by the second respondent (the arbitrator).
In his ruling, the arbitrator refused to direct that the
first
respondent discover two forensic reports. The proceedings during
which the ruling under review was made are being conducted
in terms
of s 188A of the Labour Relations Act (LRA).
[2]
Section 158 (1) (h) empowers this Court to review any decision taken
by the state in its capacity as employer, on any grounds
that are
permissible in law. In the present instance, the applicant invokes
the principle of legality as the basis for review.
In particular, the
applicant contend that the ruling is arbitrary, fails to account for
material facts and is directly at odds
with the applicable legal
principles, does not provide proper reasons for the decision taken
and was arrived at other than by way
of a fair procedure.
[3]
The applicant’s contract of employment provides for the
appointment of an arbitrator into any allegations of misconduct
in
accordance with s188A.The applicant has been charged with various
acts of misconduct, and the arbitrator appointed to conduct
an
inquiry into those allegations. When the enquiry reconvened on 5
September 2017, the applicant’s representative contended
that
not all documents previously and formally requested by the applicant
had been provided by the first respondent. At issue were
two forensic
reports prepared by third party agencies. After written submissions
were made to the arbitrator, he issued a ruling
on 28 September in
which he determined that the first respondent need not discover the
reports at issue.
[4]
The merits of the review aside, there are two preliminary issues. The
first relates to the capacity in which the arbitrator
acted when he
made the ruling under review or more specifically, whether an
arbitrator appointed under s188A as a representative
of the employer
and that what he does must be considered to have been done by the
first respondent or whether, as the first respondent
contends, the
arbitration is conducted under the auspices of the bargaining
council, independently of the employer. If the arbitrator
is found to
have acted as a representative of the first respondent, the question
that then arises is whether provisions of s 158
(1) (h) extend to the
first respondent; in other words, whether the arbitrator can be
said to have exercised as public power
subject to review on the basis
of the principle of legality.
[5]
The relevant parts of s 188A reads as follows:
Section
188A. Inquiry by arbitrator.
(1) An employer may, with the consent
of the employee or in accordance with a collective
agreement, request a council, an
accredited agency or the
Commission to appoint an arbitrator to conduct an inquiry into
allegations about the conduct or capacity
of that employee.
(2) The request must be in
the prescribed form.
(3) The council, accredited
agency or the Commission must appoint an arbitrator on receipt of—
(a) payment by the employer of
the prescribed fee; and
(b) the employee’s written
consent to the inquiry.
(4)(a) An employee may only
consent to an inquiry in terms of this section after the employee has
been advised
of the allegation referred to in subsection (1).(b)
Despite any other provision in this Act, an employee earning
more than the amount determined by the Minister in terms of
section 6 (3) of the Basic Conditions of Employment
Act at
the time, may agree in a contract of employment to the holding of an
inquiry in terms of this section.
(5) In any inquiry in terms of this
section a party to the dispute may appear in person or be represented
only by—
(a) a co-employee;
(b) a director or employee, if the
party is a juristic person;
(c) an office bearer or official of
that party’s registered trade union or registered employers’
organisation; or
(d) a legal practitioner, on agreement
between the parties or if permitted by the arbitrator in accordance
with the rules regulating
representation at an arbitration before the
Commission.
(6) Section 138, read with the changes
required by the context, applies to any inquiry in terms of this
section.
(7) An arbitrator appointed in terms
of this section has all the powers conferred on a commissioner by
section 142(1)(a) to (e),
(2) and (7) to (9), read with the changes
required by the context, and any reference in that section to the
director for the purpose
of this section, must be read as a reference
to—
(a) the secretary of the council, if
the inquiry is held under the auspices of the council;
(b) the director of the accredited
agency, if the arbitration is held under the auspices of an
accredited agency.
(8) The ruling of the arbitrator in an
inquiry has the same status as an arbitration award, and the
provisions of sections 143 to
146 apply with the changes required by
the context to any such ruling.
(9) An arbitrator conducting an
inquiry in terms of this section must, in the light of the evidence
presented and by reference to
the criteria of fairness in the Act,
rule as to what action, if any, may be taken against the employee.
(10)(a) A private agency may only
appoint an arbitrator to conduct an inquiry in terms of this section
if it is accredited for arbitration
by the Commission.
(b) A council may only appoint an
arbitrator to conduct an inquiry in terms of this section in respect
of which the employer or
the employee is not a party to the council,
if the council has been accredited for arbitration by the Commission.
[6]
In SA Transport & Allied Workers Union & others v MSC Depots
(Pty) Ltd (2013) 34 ILJ 706 (LC), the court said
the following:
[11]Section
188A… has as its purpose and means of expediting dispute
resolution by avoiding duplication between internal
and external
hearings. In effect, in terms of the tripartite agreement between the
employee, the employer and the CCMA, and arbitrator
steps into the
shoes of the employer and assumes the right normally considered
sacrosanct element of the managerial prerogative
– the right to
exercise discipline, including the right to dismiss. The benefit for
all is the elimination of the duplication
that inevitably occurs when
court like in-house hearings are inevitably followed by an
arbitration hearing conducted on a de novo
basis….
[15]
It seems to me from the wording of s 188 A that once an employer and
an employee consent to refer the determination of allegations
of
misconduct or incapacity to an arbitration hearing in terms of s
188A, and once the CCMA accedes to the request, the employer
effectively agrees to bypass the application of its internal
disciplinary procedures and to accelerate the disciplinary process
to
the stage of the arbitration hearing ordinarily applicable in a
post-dismissal phase.
[7]
What is this formulation suggests is that an agreement concluded in
terms of s188A is one that abandons any workplace disciplinary
process in favour of an arbitration hearing which would ordinarily
have been conducted post dismissal by the employer. An arbitrator
appointed in terms of the section must consider the evidence
presented and decide what sanction, if any, is to be issued against
the employee.Of some significance use the fact that the arbitrator is
subject provisions of s 138, and he or she enjoys all the
powers
conferred on commissioners in those provisions of s 142 referred to
in s 188A (7). The arbitrator is not bound by the employer’s
disciplinary code and procedure, nor obliged to give effect to it
either in terms of the prescribed process all any recommended
or
prescribed penalties. The arbitrator must decide on a balance of
probabilities without the misconduct alleged was committed,
and if
so, exercise a value judgement as to an appropriate sanction. That
judgement is reviewable in terms of s 145. All of these
provisions
indicate that the arbitrator does not sit as the employer’s
agent or representative he or she is expected to discharge
a
statutory function by the exercise of statutory powers subject to the
statutory criteria of fairness.
[8]
For these brief reasons, in my view, when he made the ruling under
review, the arbitrator discharge the statutory function under
the
auspices of the bargaining council in circumstances which cannot be
said he acted as a representative of all for and on behalf
of the
first respondent. It follows that it cannot be said that the ruling
under review was made by the third respondent. Mr Snyman,
who
represented the applicant, correctly conceded that in these
circumstances, the application stands to fail. It is thus not
necessary for me to consider whether the arbitrator’s ruling
constituted the exercise of the public power for the purposes
of s
158 (1) (h), or whether the ruling infringed the principle of
legality.
[9]
Finally, there is no reason why costs should not follow the result.
I
make the following order:
1.
The application is dismissed, with costs.
___________________
Andre
van Niekerk
Judge
REPRESENTATION
For
the applicant: Mr S Snyman, Snyman Attorneys
For
the first respondent: Mr P Maserumule, Maserumule Attorneys