About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2018
>>
[2018] ZALCJHB 79
|
|
Media Information and Technologies Sector Education and Training Authority (MICTSETA) v Weedon and Others (JR718/16) [2018] ZALCJHB 79 (6 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no:
JR
718/16
In
the matter between:
MEDIA
INFORMATION AND
TECHNOLOGIES
SECTOR EDUCATION
AND
TRAINING AUTHORITY
(MICTSETA)
Applicant
and
LYDIA
WEEDON
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
Second Respondent
MR
ISAAC MILANZI N.
O
Third Respondent
Heard
:
31 January 2018
Delivered
:
6 February 2018
Summary:
A party is entitled to representation by an employee and not a
specific employee. Not all errors vitiates an arbitration award. If
the outcome is reasonable then an award cannot be set aside and
reviewed. Held: [1] The application for review is dismissed. Held:
[2] The applicant to pay the third respondent’s costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an opposed review application. The applicant seeks to review
and set aside an arbitration award made by the third respondent.
Background
facts
[2]
The applicant employed the first respondent as a
Human Resources Generalist. Around September 2015, it was alleged by
the applicant
that the first respondent committed acts of misconduct.
Consequently, on or about 1 September 2015, the first respondent was
charged
with three acts of misconduct. One of the charges relating to
misrepresentation was withdrawn. At the internal hearing, the first
respondent was found guilty of the remaining two charges and was
dismissed on 07 October 2015.
[3]
The first respondent was aggrieved and she
approached the second respondent on allegations of unfair dismissal.
The third respondent
was appointed to resolve the dispute of the
alleged unfair dismissal. After hearing evidence, the third
respondent made certain
rulings and an award in favour of the first
respondent. The applicant was aggrieved thereby and approached this
Court for a relief.
The first respondent opposed the granting of the
relief sought.
Grounds
for Review
[4]
The first
and the main ground relates to an alleged irregularity when the third
respondent ruled that one Gama was not entitled
to represent the
applicant in the arbitration proceedings
[1]
.
Allegedly, the error of refusing Gama representation led to
unreasonable results, in that the whole case and evidence of the
applicant was compromised. By dismissing the representatives
(Advocate Motsiri, Mr Kgatla and Gama), the third respondent denied
the applicant a fair opportunity to present and prepare for its case.
[5]
The third respondent failed to apply mind by not
mero motu
postponing the arbitration, in the circumstances where postponement
was inevitable. At the same time, he failed in his duties,
thereby
committing gross irregularity. He failed to enquire about the alleged
third witness to have been called by the applicant
at arbitration.
Had the third respondent allowed Gama the opportunity to represent
the applicant, it would have been shown through
evidence that the
transgression was serious enough to warrant a dismissal.
Evaluation
[6]
The issue of
Gama is of no consequence when it comes to the reasonableness of the
award. Even if I were to find that the third respondent
erred, which
finding I am not making, by not allowing Gama to represent the
applicant, such a finding, does not affect the ultimate
outcome. The
outcome is reasonable nonetheless
[2]
.
The provisions of Rule 25 of the Commission for Conciliation,
Mediation and Arbitration (CCMA) Rules are clear. If a person seeking
to represent an employer is not an employee of that employer party,
he or she is not entitled to represent. Before the third respondent,
the said Gama failed to prove that he was an employee of the
applicant. Nonetheless the applicant was represented by another
employee,
Mr Peele.
[7]
In terms of
the Rule, a party is not entitled to be represented by a specific
employee or an employee of own choice. The argument
that Gama was
more prepared than Mr Peele is without merit. Even if that was the
case, the applicant was represented within the
contemplation of the
Rule. The record reveals
[3]
that Mr Peele was actually prepared and was afforded an opportunity
to prepare fully. It does seem that Mr Peele knew beforehand
that he
may have to represent the applicant, hence his partial preparation.
[8]
It cannot be
correct that the applicant was denied a fair opportunity to present
and prepare its case. The third respondent took
time to explain the
process to both parties before him
[4]
.
To that explanation, Mr Peele responded thus:
JP
:
Yes, we are all clear, Commissioner.
IM
:
Are we ready to proceed?
LW
:
Yes, yes
JP:
Ready
for first witness.
[5]
[9]
Mr Peele led all the witnesses of the applicant
and also cross-examined the first respondent and her witness.
Therefore, the applicant
had a fair opportunity to state its case.
[10]
There was no
reason for the third respondent to postpone the proceedings. Reliance
on
Dimbaza
[6]
is completely misplaced. The circumstances that obtained in that case
do not obtain in
casu
.
An argument that postponement was inevitable is without merit and
thus rejected.
[11]
In summary, the award issued by the third
respondent is one that a reasonable commissioner can issue. It falls
within the bounds
of reasonableness. All the grounds persisted with
are without merit. Thus the applicant is bound to fail. Regarding
costs, I do
not see any reason why costs should not follow the
results.
[12]
In the results, I make the following order:
Order
1.
The application for review is hereby dismissed.
2.
The applicant to pay the costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate
K A Tema
Instructed
by:
Kgatla Attorneys, Pretoria.
For
the First Respondent: Advocate S J Hayward
Instructed
by:
Deale Attorneys, Johannesburg.
[1]
Paragraphs 7.1-7.11 of the FA.
[2]
What matters is the materiality of the error. See
Shoprite
Checkers v CCMA
[2015] 10
BLLR (LC),
Herholdt v
Nedbank Ltd
[2013] 11BLLR
1074 (SCA),
Goldfields
Mining SA v CCMA
[2007] ZALC 66
;
[2014] 1
BLLR 20
(LAC) and
HOD
Education v Mofokeng
[2015] 1 BLLR 50 (LAC).
[3]
SM
:
Yes, sir you said your name is Joseph Peele. So you need to proceed.
JP
:
Commissioner as it stands now we will need about five to ten minutes
just to make sure that I am well prepared,
I
had
prepared partially
but Mr Gama was meant to be fully presenting
the case of the merits. But I have been asked to step in on his
behalf and for that
I will need a good five or ten minutes with
him just to go through the case to make sure that I am well prepared
if all parties
are in agreement with that.
I am well aware that
we have just broken for the 30 minutes break but I am requesting
that just to ensure that the representative
of the employer is not
prejudiced.
SM
:
Yes, but I also stated that the issue concerning Mr Gama, we dealt
with it, and then he said he was going to bring another person.
So
all right,
I will give you the ten minutes that you have
requested
so that I don’t prejudice you.
SM
:
This is a continuation of case GATW128-15,
the respondent
requested ten minutes but I granted more than ten minutes
for
the respondent to prepare. Yes, Mr Peele.
Are you prepared to
proceed?
JP
:
Yes,
Commissioner, I think we have prepared as closely as
possible, as we can, and
we would want to proceed
… [My
underlining and emphasis]
SM
=The third respondent.
JP
=Joseph
Peele. (the employee of the applicant)
[4]
See B63-B65.
[5]
IM
=Isaack
Milanzi and
LW
=Lydia
Weedon.
[6]
Dimbaza Foundaries Ltd v
CCMA
and Others [1999] 20
ILJ 1763(LC)