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[2018] ZALCJHB 164
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MEC: Public Works and Infrastructure Free State Provincial Government v GPSSBC and Others (JR857/2017) [2018] ZALCJHB 164 (8 May 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no:
JR
857/2017
In
the matter between:
MEC:
PUBLIC WORKS AND INFRASTRUCTURE
FREE
STATE PROVINCIAL
GOVERNMENT
Applicant
and
GPSSBC
First
Respondent
LUFUNO
RAMABULANA
N.
O
Second Respondent
SANGO
MENYE
Third Respondent
Heard
:
In Chambers
Delivered
:
8 May 2018
Summary:
An arbitrator determining an alleged unfair dismissal dispute
without hearing any evidence commits a reviewable irregularity. Held
(1) the award is reviewed and set aside. Held (2) the dispute is
remitted back to the first respondent to be heard by another
commissioner other than the second respondents. Held (3) there is no
order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
This is an unopposed
application to review and set aside an arbitration award issued by
the second respondent on 26 January 2017.
The third respondent has
consented to the relief sought by the applicant.
[1]
As a result this matter was considered by me in chambers.
[2]
Background
facts
[2]
Briefly the relevant of the facts of this
matter are: the third respondent was charged with acts of misconduct,
found guilty and
dismissed on 22 December 2015. Aggrieved by his
dismissal, he referred a dispute alleging unfair dismissal to the
first respondent.
The second respondent was appointed to resolve the
dispute through arbitration. On 26 January 2017, the second
respondent issued
an award in favour of the third respondent. The
applicant was aggrieved thereby and launched the present proceedings.
As pointed
out earlier, the third respondent consented to the relief
sought in accordance with the Rules of this court.
Grounds
of Review
[3]
Although the applicant raised a number of grounds,
the principal ground is that the second respondent acted irregularly
by resolving
an unfair dismissal dispute without hearing any
evidence.
Evaluation
[4]
Although Rule 17 allows parties to consent to the
relief sought by the one party, when it comes to reviews, an award
can only be
reviewed and set aside if there are recognizable grounds
in law to do so. Put differently, if recognizable grounds do not
exist,
even if the other party consents to the relief sought, an
award is not reviewable in law. I have had an occasion to say that
the
fact that a review application is not opposed, does not mean that
the impugned award should be reviewed as a matter of course.
[5]
In
casu
,
the second respondent in his award identified the dispute to be
decided as one of the dismissal of the third respondent. It is
common
cause that the third respondent alleged that his dismissal was
unfair. Section 138 of the Labour Relations Act
[3]
sets out how a commissioner may conduct an arbitration. Subsection 1
enjoins a commissioner to consider a dispute in a fair manner.
By
considering the dispute without hearing any evidence, a commissioner
cannot be held to have considered the dispute fairly. Subsection
5
[4]
empowers a commissioner to continue with arbitration in the absence
of a party. Such does not mean that the arbitrator is absolved
from
receiving evidence.
[6]
Many, if not all, of the default awards issued by
the CCMA and Bargaining Council are issued after hearing evidence,
particularly
from the referring party. The second respondent did not
obtain evidence from the third respondent. In his award lays a
reference
that he analysed evidence. One wonders which evidence was
analysed, when there is no recordal of such evidence. On the
contrary,
what the second respondent received was submissions in the
form of bundle of documents, contents of which remains a mystery. All
of this is not in line with section 138 of the Act.
[7]
In fact, the second respondent failed to arbitrate
the dispute. One wonders if the second respondent claimed any fee for
that day.
If he did, the first respondent should consider claiming it
back from the second respondent as he did not arbitrate the dispute
as required.
[8]
In summary, the second respondent did commit a
reviewable irregularity. His award ought to be reviewed and set
aside. Accordingly,
the review application is bound to succeed.
[9]
In the results, I make the following order:
Order
1.
The award issued by the second respondent is
hereby reviewed and set aside.
2.
The matter is remitted to the first respondent to
be heard by another arbitrator other than the second respondent.
3.
A copy of this judgment must be forwarded to the
Secretary of the first respondent in order to consider what the court
said in paragraph
7 of the judgment.
4.
There is no order as to costs.
_______________________
GN
Moshoana
Judge
of the Labour Court of South Africa
Appearances
(In Chambers)
No
appearances.
[1]
Rule 17 of the Labour Court Rules.
[2]
Rule 17(3).
[3]
Act 66 of 1995 as amended.
[4]
Subsection 5 (b) (i).