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[2017] ZALCJHB 400
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Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR2134/15
In
the matter between:
DEPARTMENT
OF HOME AFFAIRS
Applicant
and
GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING COUNCIL
First Respondent
MARTIN SAMBO
N.O.
Second Respondent
N
H MOREMI & 30 OTHERS
Third Respondent
Heard:
9 October 2017
Delivered:
17 October 2017
Summary:
Section
145 review application – parties deciding not to lead oral
evidence in unfair labour practice dispute and for it to
be
determined on the basis of documents and heads of argument –
commissioner not in a position to determine dispute fully
and fairly
– award set aside on review
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
The
applicant (“the department”) seeks to set aside on review
the arbitration award issued by the commissioner
[1]
on 17 February 2015, in terms of which he ordered the department to
upgrade the positions of the 31 employees
[2]
(finger print officers) from level 6 to level 8 and to adjust their
salaries accordingly (backdated to 1 April 2009). The cost
of the
award (as at the date thereof) is some R14-million.
[2]
The
department also seeks condonation for the late launching of the
review by some 165 days, i.e. 5 ½ months.
[3]
This matter
initially came before me on 24 August 2017, when (by agreement
between the parties) I postponed it to 9 October 2017
and ordered the
department to file the missing portions of the review record by 8
September 2017. I did so in circumstances where
the review record
delivered by the department does not contain the bundles of documents
referred to in the heads of argument presented
to the commissioner,
some of which documents are referenced in the award. On 7 September
2017, the State Attorney (on behalf of
the department) filed a letter
recording,
inter
alia
,
that the parties consider that the record filed is complete, with the
result that no additional documents were filed. Although
the
aforesaid bundles have not been filed separately, upon reflection, I
am satisfied that the majority of the documents in question
are
contained as part of the employees’ application for condonation
brought in the bargaining council, which does form part
of the review
record. I thus consider the record to be sufficiently complete for
the purposes of the determination of this matter.
[4]
Given that
the issue of condonation (insofar as prospects of success are
concerned) is bound up with the merits of the review application,
I
intend to deal with the merits of the review first, before dealing
with condonation. In so doing, I intend to deal only with
those
grounds of review that I consider material to the determination of
the matter.
Relevant background
[5]
The dispute
referred to the bargaining council
[3]
was an unfair labour practice dispute relating to the promotion of
the employees in terms of section 186(2)(a) of the LRA.
[6]
The matter
was set down for arbitration on 11 July 2014 before the commissioner.
In his award, the commissioner records that the
following occurred on
that day: “At the commencement of the sitting the parties
indicated that since there is no need for
oral evidence they prefer
to sen[d] written submissions to [the bargaining council].”
Later on in his award, the commissioner
records that “[t]he
parties submitted bundles of documents and opted to deal with the
case by submitting written submissions”.
The following
timetable for the submission of written submissions was also agreed
to: the employees’ submissions by 18 July
2014; the
department’s answer by 25 July 2014; and the employees’
reply by 28 July 2014. At this sitting, the employees
were
represented by their attorney (Mr Gouws) and the department by a
labour relations officer (Mr Masilela).
[7]
On 16 July
2014, the department addressed a letter to the bargaining council in
which it “informed [the] bargaining council
that it is
premature to provide heads of argument when no evidence has been led
on the issues raised and the status of documents
were not decided
on”.
[4]
It also appears
that the letter contained a “request to hear oral evidence”.
[5]
The letter did not come to the attention of the commissioner at the
time.
[8]
On 18 July
2014, Mr Gouws delivered the employees’ heads of argument. The
first paragraph of these heads record that “the
parties agreed
that no oral evidence shall be led at the hearing and that
documentary evidence shall be submitted together with
written heads
of argument”. It is also recorded that bundles “A“,
“B” and “C” were submitted
as “documentary
evidence”. Mr Gouws’ heads make frequent reference to the
employees’ bundle (bundle “A”).
[9]
On 20
October 2014, and in circumstances where the department’s
letter appears to have come to his attention by then, the
commissioner “informed the [department], telephonically, that
[he] was not acceding to the request to hear oral evidence
and that
its heads are to be filed on 28 October 2014”.
[6]
[10]
On 28
October 2014, the department delivered its heads of argument, which
were drafted by Advocate Platt. Attached to the heads
were bundle “B”
(being the department’s documents) and the department’s
letter of 16 July 2014 (marked
annexure “DHA1”). The
heads make reference to both bundles “A” and “B”,
as well as to annexure
“DHA1”. Two main points were
advanced in the department’s heads: firstly, that the
bargaining council did not
have jurisdiction because the dispute
involved one of interest and not right; and, secondly, that insofar
as he had jurisdiction,
the commissioner was not in a position to
determine the dispute on the merits – this in the absence of
oral evidence and
agreement on the status of the documents.
[11]
The second
point referred to above (described as an “additional point
in
limine
”)
was advanced in the department’s heads as involving a breach of
the rules of natural justice, in that the department
(so the argument
went) could not test the correctness of the employees’ version,
the status of the documents had not been
agreed to, and there was
also no agreement on common cause facts or facts in dispute. It was
accordingly submitted that “if
the commissioner is inclined to
find on the merits of the matter, the [department] will be prejudiced
as no evidence was led and
no documents were agreed to”, and
that “[t]he rules of natural justice would have been flouted”.
In conclusion,
the proposition was formulated as being that the
commissioner “cannot determine the merits as the rules of
natural justice
have not been adhered to and the only finding that
can be made is one of jurisdiction”. (It was on this basis that
the department’s
heads do not deal with the merits of the
unfair labour practice dispute, and do not answer the employees’
heads.)
[12]
On 2
December 2014, the employees delivered their heads of argument in
reply to the department’s heads. Their reply dealt
only with
the department’s jurisdictional point, and did not address the
additional point
in
limine
referred to above.
The commissioner’s
award
[13]
In his
award, the commissioner gives no indication as to why he refused the
department’s request for oral evidence to be heard,
although it
appears implicit that he was of the mind that it was bound to the
agreement reached on 11 July 2014.
[14]
What is
noteworthy about the award is that in setting out the submissions
made by the department in its heads of argument, the commissioner
described both the points raised by the department as “jurisdictional
points”, and appears not to have recognised that
the
department’s “additional point
in
limine
”
(see above) was a self-standing point not related to the
jurisdictional point. That the point appears to have been lost
on the
commissioner appears from his finding (made in his “analysis of
evidence and arguments”) that because he had
allowed the
department to submit heads of argument on 28 October 2014, “the
argument that the [department] was not granted
an opportunity to test
the version of the [employees] cannot stand”.
[15]
The
commissioner then goes on to reject the department’s
jurisdictional point, and having done so, finds on the merits for
the
employees on the basis of these two sentences (without more):
“Further, the [department] does not reply to the [employees’]
submission on the merit[s]. I therefore find on a balance of
probabilities that the [department] committed an unfair labour
practice
in not upgrading the [employees] to level 8.” In the
result, the commissioner made the award set out in para 1 above.
[16]
Implicitly,
the commissioner accepted the employees’ submission – in
its entirety and without any critical analysis
whatsoever –
which he described as follows in his “summary of evidence and
argument”:
“
The [employees’] jobs
were evaluated on 26/02/2008 and it was established that their job
evaluation has been determined [at]
the level of fingerprint officer
at level 6 (annexure A p 42). The [department] conducted another job
evaluation during March 2009
and recommended to the Director-General
that the positions of fingerprint officer and senior fingerprint
expert be merged and upgraded
to level 8 (annexure A p 43 to p 69).
[The employees] at this stage acted in the capacity of fingerprint
officers as per annexure
A p 42.
The Director-General approved the
recommendations made in p 43 annexure A and announced the upgrading
of fingerprint officers’
positions and salaries to level 8 with
effect from 1 April 2009 (annexure A p 70-72). The [department’s]
submission that
[the employees’] job evaluation was graded as
fingerprint comparer are incorrect. The position of fingerprint
officer and
fingerprint experts are the same as indicated in
paragraph 2.5 of annexure A p 44.”
[17]
In effect,
the commissioner accepted as true and correct the employees’
rendition of the facts based on 31 pages of their
bundle of documents
(p 42, pp 43-69 and pp 70-72). Put differently, the commissioner
accepted the authenticity and truth of the
contents of the aforesaid
documents, and accepted them as constituting evidence, as portrayed
by the employees in their heads of
argument.
What was agreed on 11
July 2014?
[18]
The record
delivered by the bargaining council contains no mechanical recording
of (or bench notes on) the proceedings on 11 July
2014, presumably
because none was kept by the commissioner. In order to determine
precisely what was agreed between the parties
on that day recourse
should thus be had to the award and affidavits in the review
application.
[19]
On the face
of the award (see above), what was agreed is that: (i) oral evidence
would not be led; (ii) the parties would rely on
written argument;
and (iii) such argument would be based on documents submitted to the
commissioner. But on the face of the award,
there was no agreement on
the status of the documents and the manner in which they would be
dealt with. In the words of rule 18(2)
of the bargaining council’s
rules (dealing with what must be dealt with at a pre-arbitration
conference), there was no consensus
on “the manner in which
documentary evidence is to be dealt with, including any agreement on
the status of documents and
whether documents, or parts of documents,
will serve as evidence of what they appear to be”.
[20]
Although
the department contests the commissioner’s description of the
11 July 2014 agreement in its affidavits in the review,
it does so
with little vigour, and is content (in other parts) to accept the
description of the agreement, but to contest the commissioner’s
decision not to allow it to change its stance (and require oral
evidence).
[21]
As regards
the employees’ rendition of the 11 July 2014 agreement, it is
unnecessary to traverse the contents of their answering
affidavit in
the light of the concession made by Mr Maseko (who appeared for the
employees) in argument to the effect that the
agreement was as
recorded by the commissioner in his award (and paraphrased in para 19
above). As Mr Maseko also conceded (and
fairly so), the agreement did
not extend to any agreement on the status of the documents, or that
they would stand as evidence.
[22]
In
conclusion under this head, I find that the agreement reached on 11
July 2014 was as recorded in para 19 above.
Is the award
reviewabe?
[23]
There are
four judgments which I consider to be of particular relevance. The
first is
Hillside
Aluminium (Pty) Ltd v Mathuse & others
(2016) 37
ILJ
2082 (LC), in which Prinsloo J held that the acceptance of documents
as constituting evidence at arbitration “is an extraordinary
scenario and requires an explicit and clear agreement between the
parties”,
[7]
and that the
reliance on documents as constituting evidence in the absence of such
an agreement constitutes a reviewable irregularity.
[8]
In the present matter, the commissioner went wrong in precisely this
manner.
[24]
The second
judgment is
SA
Social Security Agency v National Education Health & Allied
Workers Union on behalf of Punzi & Others
(2015) 36
ILJ
2345 (LC), in which Rabkin-Naicker J found that she could not
“comprehend how a dispute which hinges on the fairness of the
conduct of an employer can be decided (in the absence of a stated
case) without parties giving oral evidence”.
[9]
In setting aside the award, the court went on to find:
“
[8] In the absence of such a
stated case, oral evidence should be led on the material facts in
dispute at arbitrations in terms
of the LRA. Commissioners and
arbitrators should not condone an agreement between parties that no
oral evidence be led unless such
a stated case has been agreed, and
on which they may draw legal conclusions. Although parties may regard
submitting documents and
argument as a fast way of resolving a
dispute on the day of arbitration, it in fact renders the award
issued susceptible to review.
In the result, the principle of speedy
resolution of disputes is ultimately sacrificed.”
[25]
The third
judgment is
Arends
& others v SA Local Government Bargaining Council & others
(2015) 36
ILJ
1200 (LAC), in which Murphy AJA held as follows in the process of
setting aside the commissioner’s award:
“
[15] … When parties
desire to proceed without oral evidence in the form of a special
case, it is imperative that there should
be a written statement of
the facts agreed by the parties, akin to a pleading. Otherwise, the
presiding officer may not be in a
position to answer the legal
question put to him. Alternatively, without such a statement, the
question put is in danger of being
abstract or academic. …
Where a question of legal interpretation is submitted to an
arbitrator, the parties must set out
in the stated case a factual
substratum which shows what has arisen and how it has arisen. The
stated case must set out agreed
facts, not assumptions. The purpose
of the rule is to enable a case to be determined without the
necessity of hearing the evidence.
An oral stated case predicated
upon poorly ventilated and potentially unshared assumptions as to the
facts defeats the purpose
of the requirements of a stated case and,
as this case shows, will lead to problematic results.
[16] Rule 20(1) of the Rules for the
Conduct of Proceedings before the CCMA (which might be followed in
proceedings before bargaining
councils) allows for a pre-arbitration
conference at which the parties must attempt to reach consensus
inter
alia
on the agreed facts, the issues to be decided, the precise
relief claimed and the discovery and status of documentary evidence.
The parties in this case did not engage in a proper pre-arbitration
process with the aim of agreeing a stated case. Although the
CCMA
Rules do not include provisions equivalent to the provisions of rule
33(1) and (2) of the Rules of the High Court, parties
who prefer to
proceed by way of a stated case at the CCMA or before a bargaining
council, in my view, should follow their prescriptions.
These rules
provide that the parties to any dispute may, after the institution of
proceedings, agree upon a written statement of
facts in the form of a
special case for the adjudication of the court. Such statement shall
set forth the facts agreed upon, the
questions of law in dispute
between the parties, their contentions thereon and shall be divided
into consecutively numbered paragraphs.
The parties must annex to the
statement copies of documents necessary to enable the court to decide
upon such questions.
[17] Practitioners must follow these
rudimentary elements of good practice when intending to proceed on
the basis of a stated case.
An arbitrator faced with a request to
determine a special case where the facts are inadequately stated
should decline to accede
to the request.
In
this instance, the arbitrator did not do that.”
[26]
The fourth
judgment is
PSA
v Minister of Correctional Service
[2017] 4 BLLR 371
(LAC), in which Musi JA quoted the entire passage
from
Arends
set out above “for the sake of emphasis and to focus
arbitrators’ attention on best practice”.
[10]
In the result, the LAC upheld this court’s decision to set
aside the award which determined an interpretation dispute based
on a
stated case, which did not contain an agreed factual matrix. As Musi
JA put it, the commissioner “could not apply his
mind properly
to the issue before him without a factual substratum”, and
“[h]e should have refused to deal with the
matter without an
agreed set of facts”.
[11]
[27]
In the
present matter, the commissioner also went wrong in precisely the
manner contemplated in
SA
Social Security Agency
,
Arends
and
PSA
.
In circumstances where the parties decided to proceed without oral
evidence, the commissioner ought to have ensured that a stated
case
was concluded, which ought to have set out,
inter
alia
,
the agreed facts and incorporated documents on an agreed basis. Heads
of argument based on the stated case could then have been
submitted.
As found in
Arends
,
by failing to follow this process -
“
[19] … [t]he enquiry was
undertaken in the wrong manner with the result that the appellants
were denied their right to have
their case fully and fairly
determined. The principal cause of that denial or failure was the
inept manner in which the case was
put before the arbitrator. Be that
as it may, the undertaking of the enquiry in the wrong or in an
unfair manner by an arbitrator
is an irregularity in the conduct of
the proceedings reviewable in terms of s 145 of the LRA as suffused
by the constitutional
right to administrative action that is lawful
and procedurally fair.”
[28]
What is
important about
Arends
(with
SA
Social Security Agency
and
PSA
being to the same effect) is that it establishes that even if the
department can be blamed (in equal part with the employees) for
the
inept manner in which the case was put before the commissioner in the
present matter, this did not absolve the commissioner
of his
responsibility of ensuring that the matter was fully and fairly
determined. The agreement concluded on 11 July 2014 (see
para 19
above) was no substitute for the hearing of oral evidence, and fell
dismally short of a stated case, which would have constituted
a
substitute therefor. In the result, the commissioner did not place
himself in a position to fully and fairly resolve the dispute,
and
thereby deprived the department of its right to procedurally fair
administrative action (a patent gross irregularity), which
gives rise
to a review irrespective of the merits of the outcome of the
award.
[12]
[29]
Seen in the
light of the above, the commissioner clearly went wrong in holding
the department to the 11 July 2014 agreement and
not acceding to its
request on 16 July 2014 to present oral evidence. This is so because
in the absence of a stated case (there
being none), the matter could
not be fully and fairly determined without the presentation of oral
evidence, irrespective of the
parties’ position in relation
thereto. This is the import of
Arends
,
PSA
and
SA
Social Security Agency.
[30]
Although
the department relies on a host of grounds of review, its pleaded
grounds include an attack on the award on the basis outlined
above,
which attack I consider to be well founded. In the result, I find
that the commissioner’s award is reviewable.
[31]
In
conclusion under this head, I should mention that Mr Maseko conceded
in argument that, based on
Arends
and
PSA
,
the commissioner committed a reviewable irregularity. As demonstrated
above, the concession was both correctly and fairly made.
What falls
to be considered is the question of condonation, which remains in
issue between the parties.
Should condonation be
granted?
[32]
As a point
of departure, I accept that condonation applications in the context
of delays in launching section 145 review applications
are subject to
strict scrutiny, albeit that this applies particularly to individual
dismissal cases (unlike the present matter).
[13]
[33]
Turning to
the considerations applicable to the grant of condonation and to
begin with the delay of some 5 ½ months in launching
the
review application, when reckoned in relation to the fact that the
application ought to have been launched within six weeks
of the award
having been issued, this is a very lengthy delay. (But a delay
of 18 months has been condoned by this court,
where prospects of
success on review were found to be good.
[14]
)
[34]
The
explanation for the delay is one unique to the circumstances of this
case and can be broken down as follows: (i) it took the
department
some two months (from 2 March 2015, when the award was received, to
30 April 2015) to brief and obtain a consultation
with senior counsel
in relation to its prospects of success on review; (ii) on 11 May
2015, senior counsel rendered a written opinion
providing a negative
assessment of the department’s prospects of success; (iii) an
internal submission was then immediately
drafted proposing
settlement, which was reworked on several occasions and finally
signed off by all authority levels (except for
the Director-General,
being the final signatory) on 27 August 2015; (iv) the
Director-General, however, refused to authorise the
settlement, which
ultimately resulted in a decision being taken on 28 September 2015 to
brief a new set of counsel to draft the
review application; and (v)
following an initial consultation with counsel of 2 October 2015 and
extensive work on the matter (which
has a long history), the review
application was served on 2 November 2015.
[35]
As appears
from the above, the bulk of the delay was taken up with processing
the internal settlement submission from about 11 May
2015 to 27
August 2015. Significantly, the explanation in this regard is that
none of the signatories had any reason to believe
that the
Director-General would not agree with the advice of senior counsel,
which dictated the pace of things to an extent. This
is an unusual
set of circumstances.
[36]
Judged
holistically, while this is certainly not a water-tight explanation
for a lengthy delay, it is not an unreasonable or wholly
unacceptable
explanation, and is by no means so inadequate as to render prospects
of success immaterial.
[15]
Put
differently, this is not a case where there is, in effect, “no
explanation for the delay [where] there may be no need
to consider
prospects of success”.
[16]
[37]
Turning
then to the department’s prospects of success, as discussed
above, I am of the view that the award is clearly reviewable.
This on
the authority of the string of judgments analysed above, including
two judgments of the LAC (
Arends
and
PSA
).
[38]
Also
significant is the nature of the reviewable irregularity identified
above. In effect, the commissioner deprived the department
of its
fundamental right to a procedurally fair hearing, which constitutes a
patent gross irregularity. To my mind, the defect
in the proceedings
is of a kind which would result in a miscarriage of justice if it
were allowed to stand, with this clearly favouring
the grant of
condonation.
[17]
Put
differently, given the potential for a miscarriage of justice in the
event of the award being allowed to stand, it is in the
interests of
justice
[18]
that condonation
be granted.
[39]
Also of
relevance is the importance of the case.
[19]
Clearly, the matter is of considerable importance,
inter
alia
,
because the cost of the award to the State is some R14-million. This,
too, is a factor in favour of the grant of condonation.
[40]
In my view,
the department’s prospects of success, the gross nature of the
reviewable irregularity committed by the commissioner,
the potential
for a miscarriage of justice if the award is allowed to stand and the
importance of the case, make up for the lengthy
delay and any
shortfall in the explanation therefor.
[20]
[41]
In all the
circumstances, I am satisfied that good cause for the grant of
condonation has been established by the department.
Order
[42]
In
the circumstances, the following order is made:
1)
condonation
for the late launching of the review application is granted;
2)
the
arbitration award issued by the second respondent is reviewed and set
aside;
3)
the unfair
labour practice dispute is referred back to the first respondent for
a fresh arbitration before a commissioner other
than the second
respondent; and
4)
there is no
order as to costs.
________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the applicant: Adv
M Zondo instructed by the State Attorney (Pretoria)
For the third
respondent: Adv M Maseko instructed by Johan Gouws Attorneys
[1]
The second respondent.
[2]
The third respondent.
[3]
The first respondent.
[4]
This letter is not part of the review
record, but this is how the arbitrator describes it in his award.
[5]
This is also apparent from the award.
[6]
This being a quotation from the
award.
[7]
At para 62.
[8]
At paras 68-69.
[9]
At para 5.
[10]
At para 16.
[11]
At para 19.
[12]
This being the import of the passage
from
Arends
quoted
in para 27 above.
[13]
Queenstown Fuel Distributors CC v
Labuschagne NO & others
(2000) 21
ILJ
166 (LAC) at paras 24-25.
[14]
Maseko v Commission for
Conciliation, Mediation & Arbitration & others
(2017) 38
ILJ
203 (LC) at para 17.
[15]
Colett v Commission for
Conciliation, Mediation & Arbitration & others
(2014) 35
ILJ
1948 (LAC) at paras 38-39.
[16]
Grootboom v National Prosecuting
Authority & another
(2014) 35
ILJ
121 (CC) at para 51.
[17]
Queenstown Fuel Distributors
at
para 24.
[18]
See
Grootboom
at para 50.
[19]
Moodley v Department of National
Treasury & others
(2017) 38
ILJ
1098 (LAC) at para 47.
[20]
Ibid
.