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[2018] ZALCJHB 124
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Bodibe v Public Service Co-ordinating Bargaining Council and Others (JR490/15) [2018] ZALCJHB 124 (23 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
case
no: jr 490/15
In the matter between:
ELIZABETH
MATLAKALA
BODIBE
Applicant
and
PUBLIC
SERVICE CO-ORDINATING
BARGAINING
COUNCIL
First Respondent
DANIEL
KGOMOTJE MATJI
N.O
Second Respondent
MINISTER
OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Third Respondent
Heard:
22 August 2017
Delivered:
23 March 2018
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act (LRA)
[1]
for an order
reviewing and setting aside an arbitration award issued by the second
respondent (arbitrator) acting under the auspices
of the first
respondent (PSCBC), dated 12 March 2015 under case reference number
PSCB 166-12/13.
In
his award, the arbitrator ruled that PSCBC lacked jurisdiction to
entertain the dispute between the parties and dismissed the
applicant’s claim.
[2]
The key question is whether the arbitrator’s jurisdictional
ruling was objectively wrong.
Material background facts
[3]
The applicant was employed by the third respondent as a Senior Court
Interpreter at the Johannesburg Magistrate Court. She was
charged and
dismissed for misconduct relating to receiving a bribe from an
advocate for an amount of R300.00. The dismissal took
place on 18
February 2002 following a disciplinary hearing. The applicant
appealed against the finding of her dismissal. Subsequently,
the
applicant was criminally charged in October 2002 and sentenced for a
period of five years imprisonment. She was released on
18 May 2005.
This occurred whilst she was still awaiting the appeal outcome.
[4]
On 5 June 2012, the applicant referred a dispute to PSCBC
on
the interpretation and application of clause 7.4(c) of the PSCBC
Resolution 1 of 2003, which reads as follows:
‘
The
employer should not implement the sanction during the appeal by the
employee.’
[5]
The dispute was conciliated unsuccessfully and it proceeded to the
first arbitration that was held on 25 September 2012. The
dispute was
arbitrated by commissioner F. Van der Merwe who dismissed the
applicant’s case on the basis of unreasonable delay.
Dissatisfied with the award, the applicant filed a review
application. In his judgment, Molahlehi, J found as follow:
‘…
There
are no time frames within which an application for interpretation and
application of a collective bargaining agreement need
to be
instituted. As indicated the arbitrator does not have the inherent
power similar to that of the Court to dismiss an application
due to
unreasonable delay. Therefore, in dismissing the applicant’s
case in the present instance, this arbitrator exceeded
his powers in
that he exercised powers which he does not have. It is for this
reason that I find that the arbitrator’s award
stands to be
reviewed.’
[6] Accordingly,
the arbitration award was reviewed, set aside and referred back to
the PSCBC for a hearing
de novo
.
The second arbitration was held on 6 February 2015. Subsequently, the
arbitrator found that the PSCBC “has no jurisdiction
as the
applicant was not an employee on the date on which the dispute
arose.”
Arbitration and the award
[7]
At the arbitration proceeding, there was no oral evidence as the
parties agreed to submit written heads of arguments. The applicant’s
submission was that she was, in terms of clause 7.4(c) of the PSCBC
Resolution 1 of 2003, entitled to be remunerated
from the date of her dismissal to the date on which the appeal
outcome was served
on her. The third respondent raised a preliminary
issue relating to the PSCBC’s jurisdiction to deal with the
dispute on
the basis that the applicant was not its employee.
[8]
In his analysis, the arbitrator found that it was not disputed that
the dismissal was upheld in an appeal by a Ministerial Memorandum
signed by the Minister on 17 September 2002. The arbitrator further
found the question of authenticity of the Ministerial Memorandum
irrelevant to the interpretation of clause 7.4(c) of the PSCBC
Resolution 1 of 2003. Accordingly, he was
satisfied that the appeal was processed and finalised.
[9] The arbitrator’s view was
that the issue relating to whether the outcome of the appeal was
communicated to the applicant
or not, fell outside the interpretation
of clause 7.4(c) of the collective agreement and that it was a matter
affecting the fairness
of the procedure in terms of which the appeal
was heard or dismissal was effected. It was on this basis that he
made the following
findings:
‘
30
Having found that the appeal was finalised on 17 September 2002, all
the events that occurred
subsequent to that date cannot be brought
within the ambit of the employment relationship. A dismissal brings
an end to the employment
relationship. What I find strange is the
relevance of the date 15 November 2002. Applicant hammered on the
date of the 15 November
2002 which confirms that it is the date on
which she regarded the dispute to have arisen.
31.
Perhaps the applicant would have had valid argument if her claim was
that the respondent
implemented the sanction of dismissal before her
appeal was finalised on 17 September 2002. I am unable to find any
justifiable
basis for the applicant to have chosen 15 November 2002
as the date on which dispute arose. It is my finding that the
applicant
has ceased to be an employee of the respondent on 15
November 2002 and therefore not entitled to protection of the
collective agreement.
32.
Secondly, Resolution 1 of 2003 was not yet effective when the dispute
arose on 15 November
2002. The collective agreement cannot be applied
retrospectively. In other words, the respondent could not have known
in advance
about the coming into effect of Resolution 1 of 2003 in
the year 2002. The respondent could not have reached the provision of
clause
7.4(c) of Resolution 1 of 2003 as it was not yet effective on
15 November 2002.
33.
Having considered the issues raised and the submissions of the
parties, it is my considered
opinion that the preliminary issues
raised by the respondent are possessed sufficient legal merit. I have
not dealt with the waiver
argument but it is equally persuasive. The
inescapable conclusion at which I have arrived is that the applicant
has no
locus standi
to bring the matter to the Council as she
ceased to be an employee when the dispute arose on 15 November 2002.’
[10] Accordingly,
the applicant’s claim was dismissed with no costs order. It is
this finding that the applicant seeks to
review and set aside.
Grounds of Review
[11]
The applicant’s ground of review is that the arbitrator acted
against the judgment of this Honourable Court in deciding
the issue
of the PSCBC’s jurisdiction.
[12]
The applicant further challenged the arbitrator’s award on the
basis that his ruling was not justified by facts before
him in that
the third respondent failed to notify her of the appeal outcome which
was required in terms clause 7.4(c) of the PSCBC
Resolution
1 of 2003. The applicant’s other ground of review was that the
arbitrator’s ruling was not in accordance
with the law in that
the arbitrator relied on the Ministerial Memorandum authenticity of
which was questioned by the applicant.
[13] The third respondent contends
that in seeking the interpretation of the collective agreement, the
applicant seeks to circumvent
compliance with the late referral of
the dismissal dispute, if any. For that reason, the third respondent
argued that it was important
to first determine whether the applicant
was the third respondent’s employee. According to the third
respondent, after 13
years of her dismissal, the applicant waived her
right to pursue any legal remedies in terms of the LRA.
Applicable law and analysis
[14]
The test for review applications based on jurisdictional error is
well established and has been stated in numerous cases of
this Court
and the Labour Appeal Court as correctness. In
SA
Rugby Players’ Association v SA Rugby (Pty) Ltd and Others; SA
Rugby (Pty) Ltd v SARPU,
[2]
the
LAC held as follows:
‘…
The
issue was simply whether, objectively speaking, the facts which would
give the CCMA jurisdiction to entertain the dispute existed.
If such
facts did not exist, the CCMA had no jurisdiction irrespective of its
finding to the contrary.’
[15]
The applicant has to establish that the arbitrator’s decision
was objectively wrong. In
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO and Others,
[3]
the
court held as follows:
‘
In
my view where the power to be exercised is statutory, the answer to
the question of what the jurisdictional fact(s) is (are)
which must
exist before such power can be exercised lies within the four corners
of the statute providing for such power. Accordingly
the provisions
of such statute require to be considered carefully to determine what
the necessary jurisdictional fact(s) is (are).
In the light of this I
consider it necessary to have regard to the provisions of the Act to
determine what the necessary jurisdictional
fact(s) is (are) which
must exist in a case such as this one before it can be arbitrated or
adjudicated in terms of the Act.’
[16] In this case, the applicant
submitted that, at the time of the referral of the dispute, the
outcome of the appeal was not communicated
to her and that the third
respondent should have remunerated her from the date of dismissal to
the date on which the appeal outcome
was served on her.
The
issue is whether there had been an employment relationship between
the applicant and the third respondent and, therefore, whether
the
PSCBC had the requisite jurisdiction to deal with the dispute. The
issue of jurisdiction is dependent on the answer to this
question.
[17]
The third respondent referred this Court to
Transport
Fleet Maintenance (Pty) Ltd and Others v NUMSA and Others
[4]
to supposedly support the argument that the arbitrator was correct to
rule that the applicant was not the third respondent’s
employee. The passage referred to reads as follows:
‘…
The
employment relationship certainly continues to exist where the
dismissed person challenges the fairness of the dismissal and
seeks
relief through procedures provided for by the Act.’
[18]
The third respondent’s contention was that the extension of
employment relationship does not continue to exist in this
case as
the applicant was not challenging the fairness of her dismissal or
any of the rights protected by the LRA. It is apparent
that the
applicant referred a dispute in terms of section 24 of the LRA. There
is therefore, no merit to the third respondent’s
argument. In
Hospersa
obo
Tshambi
v Department of Health, KwaZulu-Natal,
[5]
the LAC dealt with the arbitrator’s duty to interrogate the
parties’ characterisation of the dispute and stated as
follows:
‘
What
is a “dispute”
per
se,
and
how one is to recognise it, demands scrutiny. Logically,
a
dispute
requires,
at minimum, a difference of opinion about a question. A dispute about
the interpretation of a collective agreement
requires, at minimum, a
difference of opinion about what a provision of the agreement means.
A dispute about the application of
a collective agreement requires,
at minimum, a difference of opinion about whether it can be
invoked…’
[6]
[19] The arbitrator’s finding
that PSCBC had no jurisdiction to hear the dispute was premised on
two issues. Firstly, he found
that the applicant was not the third
respondent’s employee after accepting that the applicant’s
dismissal was finalised
on 17 September 2002 when the Ministerial
Memorandum was signed. Accordingly, he found that all the events that
occurred subsequent
to that date could not be brought within the
ambit of the employment relationship. In his view, the applicant was,
therefore, not
entitled to the protection of the collective
agreement.
[20]
The arbitrator further disregarded the applicant’s submissions
when he
found that the question of
authenticity of the Ministerial Memorandum was irrelevant to the
interpretation of 7.4(c) of the PSCBC
Resolution
1 of 2003. The arbitrator’s finding was, therefore, wholly
based on the Ministerial Memorandum receipt and authenticity
of which
were challenged by the applicant.
[21]
Clause 2 of the PSCBC
Resolution 2 of 1999
clearly state as follows:
‘
PRINCIPLES
2.
The following principles inform the Code and Procedure and must
inform any decision
to discipline an employee.
2.1
Discipline is a corrective measure and
not a punitive one.
2.2
Discipline must be applied in a
prompt, fair, consistent and progressive manner.
2.3
Discipline is a management function.
2.4
A disciplinary code is necessary for
the efficient delivery of service and the fair treatment
of public
servants, and ensures that employees:
(a)
have a fair hearing in a formal or informal setting;
(b)
are timeously informed of allegations of misconduct made against
them;
(c)
receive written reasons for a decision taken; and have the right to
appeal against
any decision.
2.5
As far as possible, disciplinary procedures shall take place in the
place of work and be
understandable to all employees.
2.6
If an employee commits misconduct that
is also a criminal offence, the criminal procedure and
the
disciplinary procedure will continue as separate and different
proceedings.
2.7
Disciplinary proceedings do not
replace or seek to imitate court proceedings.
2.8
The Code and Procedures are guidelines and may be departed from in
appropriate circumstances.
[22]
It is clear that the fair treatment of employees includes the right
to receive written reasons for any decision taken following
a
disciplinary enquiry. However, it is not apparent whether the third
respondent disputes whether it is bound by the collective
agreement
and whether the collective agreement entitles the dismissed employee
payment of his/her salary until the outcome of the
appeal is
communicated to him/her.
[23]
What is apparent from the applicant’s submissions is that there
was a factual dispute whether she (the applicant) was
informed of the
outcome of appeal and whether she was issued with the Ministerial
Memorandum. In
Shell
SA Energy (Pty) Ltd v National Bargaining Council for the Chemical
Industry and Others,
[7]
the LAC dealt with the admissibility of documents that were not
properly admitted into evidence and held as follows:
‘
Having
considered all of the above, I am of the view that in refusing the
appellant’s request to lead
viva
voce
evidence
and instead being content to dispose of the matter on the basis of
documents that were not properly admitted into evidence,
the second
respondent committed a material irregularity warranting the setting
aside of his decision. Insofar as the court
a
quo
found
otherwise, it erred. I am satisfied that the court
a
quo
misdirected
itself materially and that this misdirection alone warrants the
setting aside of its order.’
[24]
In this case, in finding that the applicant was not the third
respondent’s employee, the arbitrator relied on the Ministerial
Memorandum without properly admitting it into evidence. In the
absence of an agreement on the documentary evidence before the
arbitrator, the question whether the applicant was an employee of the
third respondent is one that can only be determined by adducing
viva
voce
evidence.
[8]
The arbitrator chose to decide on the factual dispute without the
benefit of oral evidence and affidavits. In so doing, he committed
a
reviewable irregularity and his award stands to be set aside on this
ground alone.
[25]
The second premise on which the arbitrator arrived at his ruling was
based on his view that
the third respondent could not have breached clause 7.4(c) of the
PSCBC Resolution 1 of 2003 as it was not effective on 15 November
2002, when the dispute arose.
In
CUSA
v Tao Ying Metal Industries and Others
[9]
the
Constitutional Court stated as follows:
‘
Consistent
with the objectives of the LRA, commissioners are required to “deal
with the substantial merits of the dispute
with the minimum of legal
formalities.”
This
requires commissioners to deal with the substance of a dispute
between the parties. They must cut through all the claims and
counter-claims and reach for the real dispute between the parties. In
order to perform this task effectively, commissioners must
be allowed
a significant measure of latitude in the performance of their
functions. Thus the LRA permits commissioners to “conduct
the
arbitration in a manner that the commissioner considers appropriate”.
But in doing so, commissioners must be guided by
at least three
considerations. The first is that they must resolve the real dispute
between the parties. Second, they must do so
expeditiously. And, in
resolving the labour dispute, they must act fairly to all the parties
as the LRA enjoins them to do.
A
commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done by
ascertaining the real dispute between the parties.
In
deciding what the real dispute between the parties is, a commissioner
is not necessarily bound by what the legal representatives
say the
dispute is. The labels that parties attach to a dispute cannot change
its underlying nature. A commissioner is required
to take all the
facts into consideration including the description of the nature of
the dispute, the outcome requested by the union
and the evidence
presented during the arbitration. What must be borne in mind is that
there is no provision for pleadings in the
arbitration process which
helps to define disputes in civil litigation. Indeed, the material
that a commissioner will have prior
to a hearing will consist of
standard forms which record the nature of the dispute and the desired
outcome. The informal nature
of the arbitration process permits a
commissioner to determine what the real dispute between the parties
is on a consideration
of all the facts. The dispute between the
parties may only emerge once all the evidence is in.’
[10]
[Footnotes omitted]
[26]
Although
the applicant’s referral related to the interpretation and
application of
clause
7.4(c) of the PSCBC Resolution 1 of 2003,
it
was not in dispute that it
has the exact wording as
clause
7.4(c)
of the PSCBC Resolution 2 of 1999. There was further no dispute that
the PSCBC Resolution 1 of 2003 repealed the PSCBC Resolution
2 of
1999.
It
is trite that the arbitrator was not bound by the parties’
description of the dispute. The arbitrator was obliged to examine
all
the facts to ascertain the real dispute between the parties.
[11]
In this case, it should not have been complicated for the arbitrator
to do exactly that as
the
issue before him was clearly stated by Molahlehi J as that relating
to the interpretation and application of
clause
7.4(c)
of the PSCBC Resolution 2 of 1999.
It
is my view that there is merit in the applicant’s submission
that the arbitrator acted against the judgment of Molahlehi
J.
[27]
It
seems to me that, had the arbitrator applied his mind to the terms of
the judgment of Molahlehi J, the
PSCBC
Resolution 1 of 2003 and/or PSCBC
Resolution 2 of 1999,
the
factual dispute before him and
the
applicable case law
,
he would not have arrived at the conclusion that the applicant was
not an employee of the third respondent. The result hereof
is that
the arbitrator’s
jurisdictional ruling was objectively wrong.
[28]
To an extent that the third respondent raised a jurisdictional issue
pertaining to the existence of the employment relationship,
it must
be objectively determined by the PSCBC prior to the determination of
the dispute referred by the applicant.
Therefore,
i
t
is appropriate to remit this matter to the PSCBC to be heard by a
different commissioner.
With
regard to costs, taking into account the requirements of law and
equity, I believe this is a matter in which there should be
no order
as to costs.
[29] In the
circumstance, I make the following order:
Order
1.
The arbitration award issued by the
second respondent acting under the auspices of the first respondent
dated 12 March 2015 under
case reference number PSCB 166-12/13
is reviewed and set aside.
2.
The first respondent
is directed to set down the dispute referred by the applicant for
arbitration
to be heard by a
commissioner other than the second respondent.
3.
Taking into account the delay and history of the matter, the senior
commissioner
is directed to set this matter down within 30 days from
the date of this order.
4.
There is no order as to costs.
_____________
D. Mahosi
Judge
of the Labour Court
Appearances:
For
the applicant
Ms Preshni
Govender
Instructed
by
Macgregor Erasmus Attorneys
For
the respondent
Advocate A.M Pheto
Instructed
by
State Attorney
[1]
Act 66 of
1995 as amended.
[2]
[2008] ZALAC 3
;
[2008] 9
BLLR 845
(LAC) at para 41.
[3]
[2000] 12
BLLR 1389
(LAC) at para 7.
[4]
[2003] 10
BLLR 975
(LAC) at para 11
[5]
(2016) 37 (ILJ)
1839 (LAC).
[6]
At para 17.
[7]
(2013) 34
ILJ
1490
(LAC) at para 26.
[8]
ibid para 24
..
[9]
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC)
.
[10]
At paras
64-65.
[11]
Zeuna-Stärker
BOP (Pty) Ltd v NUMSA
[1998] 11
BLLR 1110
(LAC) at para 6.