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 217
|
|
BMW (South Africa) (Pty) Ltd v National Union of Metalworkers of South Africa (NUMSA) and Others (JR1909/15) [2018] ZALCJHB 217 (3 July 2018)
Of
interest to other Judges
THE
LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: JR 1909/15
In
the matter between:
BMW
(SOUTH AFRICA) (PTY) LTD
Applicant
and
NATIONAL
UNION OF METALWORKERS OF SOUTH AFRICA (‘ NUMSA’)
First
Respondent
MARYNA
DAVIS
Second
Respondent
WERNER
KRUGER
N.O.
Third
Respondent
CCMA
Fourth
Respondent
Heard
:
7 September 2017
Delivered
:
3 July 2018
Summary:
(Review – condonation ruling – review of a discretionary
function)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The applicant (‘BMW’) has applied to set aside a ruling
condoning the late referral of an automatically unfair dismissal
dispute based on age to the CCMA.
Background
[2]
The second respondent, Ms M Davis (‘Davis’), retired on
30 November 2014. She alleges that she was forced to retire
on that
date. Numsa referred an automatically unfair dismissal dispute
directly to the Labour Court on 18 December 2014. The applicant
filed
an answering statement of case on 6 January 2015, in which it raised
an
in limine
objection that the dispute had never been
referred to conciliation by the CCMA before being referred to the
court.
[3]
Numsa claims that the responsible official who referred the dispute
had done so under the erroneous impression that the matter
had been
referred to the CCMA but that a certificate of outcome had not been
issued. The anticipated certificate pertained to a
separate dispute
over the alleged unilateral alteration of retirement ages, which
Numsa had referred on behalf of Davis and a number
of other
employees. BMW disputes that the official in question could have been
under such an incorrect impression since that dispute
had been
withdrawn from the CCMA by Numsa on 1 December 2014, so no
certificate of outcome would have been forthcoming from that
dispute
referral.
[4]
On 26 March 2015, Numsa in consultation with its legal
representatives decided that the official should ask for a
certificate
to be issued as the 30 day period for conciliation had
elapsed.
[5]
After learning of this, Davis, on her own accord, referred the
dispute to the CCMA on 23 April 2015, without withdrawing the
referral to the Labour Court. The first referral of the dispute to
the CCMA on 23 April 2015, apart from the issue of the Labour
Court
referral, was four months late.
[6]
On 14 May 2015, a CCMA Commissioner upheld an objection by the
applicant and ruled that Davis could not pursue her referral
because
the matter was pending before the court. Davis then advised Numsa of
the ruling. Numsa‘s legal representatives then
advised it to
withdraw the Labour Court referral and re-refer the dispute to the
CCMA.
[7]
Numsa withdrew the court referral and on 29 June 2015, it filed a
fresh referral with the CCMA accompanied by an application
for
condonation.
[8]
Consequently, the second referral to the CCMA, was six months late.
[9]
In the case made out on the merits in her founding affidavit in
support of her condonation application, Davis contended that:
9.1 When she was employed by the
applicant in 1998 the normal retirement age was 65 years, which was
the age mentioned in the so-called
‘staff diary’, which
contained details of employee benefits.
9.2 In 1995, BMW changed the
retirement age to 60 years, but gave an election to those employed
prior to 1994 to retire at 65 or
60.
9.3 She elected to retire at 65 on two
separate occasions in 1994 and 1997, but BMW failed to record her
election and her retirement
age was recorded as 60 years.
9.4 She attached a copy of a pro forma
retirement age election form dated 18 February 1997 to her affidavit,
which on the face of
it indicates that she did elect to retire at 65.
9.5 In consequence, she claims that
BMW unilaterally altered her retirement age.
[10]
BMW, for its part, claimed that:
10.1 In so far as Davis claims that
there was a unilateral change to her retirement age she did nothing,
despite being aware of
the alleged amendment in 1994 or 1997 and that
all formal employment records recorded her retirement age as 60.
10.2 Davis never did indicate that she
wanted to retire at 65. She would not have received an election form
in 1994 because she
was not a member of the pension fund at that
time.
10.3 The benefit statements issued by
the various retirement fund administrators at all times, which she
would have received, recorded
that her retirement age would be 30
November 2014.
10.4 Further, on 3 April 1997 she
signed a document confirming her personal details in which it was
recorded that her employment
would terminate in October 2014.
10.5 The authenticity of the document,
referred to in paragraph 9.4 above, which purports to be Davis’s
election to retire
at 65, is disputed because Davis had the
opportunity to produce this document for a number of years and even
when the collective
grievance over the change to retirement ages was
being considered she never did so.
[11]
It was only in April 2014 when a collective grievance was lodged by
Numsa relating to the alleged unilateral alteration of
the retirement
age that she became a party to any grievance about her retirement
age.
The
ruling
[12]
The arbitrator found that there was no real dispute that Davis had
actively pursued her case, even though which he termed ‘a
comedy of errors’ transpired between the date of dismissal and
the date of referral of her dispute to the CCMA. He accepted
that if
she had done nothing for five months after referring a dispute to the
union he might have taken a different view. However,
because she
consulted with the union, referred the dispute on her own and
consulted with attorneys to rectify previous mistakes
she could not
be blamed for the delays.
[13]
On the merits of her claim, the arbitrator found that it was
difficult to understand why Davis did not rectify her retirement
age
that was recorded with the HR department as 60, if she had indeed
made an election in 1994 and 1997 to retire at 65, or why
she had not
previously provided the interoffice memorandum allegedly reflecting
her election to retire at 65 to BMW. Nonetheless,
the arbitrator felt
that this was a matter for evidence and she should be given an
opportunity under cross-examination to explain
her reasons for not
rectifying the retirement age recorded on her records.
Grounds
of review
[14]
It is now trite law that more
is required than a mere failure to consider certain factors, and that
a review is not an appeal. In
order for a misdirection or a failure
to consider evidence to amount to a reviewable irregularity, it is
necessary for the applicant
on review to demonstrate that the failure
in question necessarily led the arbitrator to make findings which no
reasonable arbitrator
could have made on the evidence before them. In
Head of Department of
Education v Mofokeng and Others
[1]
the Labour Appeal Court has expressed the principle thus:
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the enquiry.
In the final analysis, it will depend on the materiality
of the error
or irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and
determined
with reference to the distorting effect it may or may not have had
upon the arbitrator's conception of the enquiry,
the delimitation of
the issues to be determined and the ultimate outcome. If but for an
error or irregularity a different outcome
would have resulted, it
will
ex hypothesi
be material to the determination of the
dispute. A material error of this order would point to at least a
prima facie unreasonable
result. The reviewing judge must then have
regard to the general nature of the decision in issue; the range of
relevant factors
informing the decision; the nature of the competing
interests impacted upon by the decision; and then ask whether a
reasonable
equilibrium has been struck in accordance with the objects
of the LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, an irregularity or error material to the
determination
of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the issues,
with the
result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted from the
correct
path in the conduct of the arbitration and as a result failed
to address the question raised for determination.
[15]
BMW advances the following grounds of review:
15.1 The arbitrator should not have
granted the condonation application given the failure to explain the
full period of the delay
and considering the negligence of Numsa and
Davis in referring the matter timeously. In particular, BMW contends
that the explanation
for the delay between 6 January 2015, when the
union received BMW’s answering statement to the Labour Court
referral, and
23 April 2015, when Davis made the first referral to
the CCMA, was inadequate considering that Numsa’s legal
department was
involved..
15.2 The arbitrator either did not
properly consider the prospects of success, or to the extent that he
did so did not apply the
correct test. BMW contends that in
evaluating the prospects of success he did not attempt to form a view
on the prospects, but
simply concluded that two outcomes were
possible, which was a misdirection. It further contends that, had he
had regard to his
concerns about her apparent failure to dispute her
recorded retirement age earlier all to provide evidence of the
document purporting
to show her election of a retirement age of 65,
he ought to have concluded that she had no prospects of success. He
ought not to
have held that fairness required the conflicting
allegations about the authenticity of the election document and
Davis’s
explanation for not querying her retirement age to be
ventilated in a hearing, but simply should have decided on the
prospects
of success.
15.3 The arbitrator failed to consider
the importance of the matter and the prejudice to all parties. In
this respect, BMW contends
that the arbitrator’s failure to
mention this factor is indicative of a failure to address the
concerns specifically raised
by it of the implications of allowing
her claim to proceed. In its answering affidavit BMW had contended
that Davis could not claim
the issue was important to her because she
had done nothing about it prior to the termination of her service.
Accordingly, she
had to accept responsibility for not tackling the
issue earlier. In relation to BMW itself, BMW contended that it would
suffer
significant prejudice if it was compelled to entertain
employees like Davis, who had never elected to retire or pursued any
disputes
in that regard, because it would interfere with its
personnel manning levels operational requirements and career planning
as well
as its financial contributions made towards retirement
funding.
Evaluation
[16]
It is important when
considering a review of a condonation ruling that the court is
considering the exercise of a discretionary
power. See
National
Union of Metalworkers of SA & others v Fibre Flair CC
[2]
reaffirmed in
Coates
Brothers Ltd v Shanker & others
[3]
,
where the LAC stated the applicable principles in such cases:
“
The test for interference in a
discretion exercised in terms of s 193(1)(a) of the LRA is thus that
formulated in Ex parte Neethling
& others
1951 (4) SA 331
(A) at
335E:
'Can it be said in the present case
that the Court a quo has exercised its discretion capriciously or
upon a wrong principle, that
it has not brought its unbiased
judgement to bear on the question or has not acted for substantial
reasons?'
And, as put somewhat differently in S
v Kearney
1964 (2) SA 495
(A) at 504B-C:
'When a Court of first instance gives
a decision on a matter entrusted to its discretion, a Court of appeal
can interfere only if
the decision is vitiated by misdirection or
irregularity or is one to which no Court could reasonably have come -
in other words
if a judicial discretion was not exercised.'
In Camdons Realty (Pty) Ltd &
another v Hart (1993) 14 ILJ 1008 (LAC) it was said at 1018F:
'This court may intervene only if it
is shown that the Industrial Court has failed to exercise its
discretion, or has exercised
its discretion improperly or unfairly.'
…
The appellants were unable to show
that the court a quo acted capriciously, or upon a wrong principle,
or in a biased manner, or
for insubstantial reasons, or committed a
misdirection or an irregularity, or failed to exercise its
discretion, or exercised its
discretion improperly or unfairly.
[4]
These
principles must now also be applied subject to the review principles
set out in
Mofokeng
above.
[17]
I agreed that the explanation for the failure of Numsa to internalise
and address the contradiction between BMW’s assertion
that the
dispute had never been referred to conciliation and its own belief
that a certificate was outstanding during the period
is wanting and
inadequate. The arbitrator clearly took a broader view of the entire
time span and accepted that, despite the blundering
missteps taken by
the applicants, Davis had maintained an ongoing and active interest
in pursuing her case. The fact that Numsa,
albeit prematurely, filed
the statement of case in mid-December 2014 was not indicative of
representatives who had taken an idle
role in the matter. He also
took account of the fact that attempts, however misguided, were taken
to rectify the procedural errors
in referring the dispute. While
another arbitrator may have found the explanation poor enough to
dismiss the application, it cannot
be said that the arbitrator’s
effective finding that this was not a case where the interested
parties were idle in pursuing
the matter, was so unreasonable that it
was not necessary for him to even consider other factors, and that he
could have decided
this application on the basis of the explanation
for the delay alone. In passing, it should be mentioned that the
first commissioner’s
ruling that he could not conciliate the
first dispute referred in April 2015 was probably wrong, because the
fact that there had
been a premature referral to the labour court of
a dispute which had not been conciliated, and therefore could not be
entertained
by the court, did not prevent him from considering a
referral to conciliation.
[18]
Regarding the arbitrator’s assessment of the prospects of
success, it does appear that he did not form a clear view on
whether
Davis’ had reasonable prospects of success. He also expressed
understandable doubts about Davis’s ability to
explain to an
arbitrator her failure to rectify the allegedly erroneous recording
of her retirement age over a number of
years and her failure to
produce the alleged document purporting to demonstrate that she had
exercised her choice to retire at
age 65, at an earlier stage. On the
other hand, he was confronted with the document, which on the face of
it did appear to be one
that supported her claim. BMW’s
answering affidavit disputed the authenticity of the document, but
only in broad terms without
providing any specificity about why the
document could not be authentic, apart from relying on general
probabilities why it might
be a recent fabrication, in circumstances
where Davis could reasonably have been expected to have produced it
at an earlier stage.
It must also be mentioned, that BMW’s case
that Davis’s retirement age was 60 appears to be largely based
not on a
document in which she positively elected her preferred
retirement age, but on her conduct in not disputing a retirement age
of
60, appearing in other documents she signed or saw. Given these
circumstances, it was not unreasonable of the arbitrator to take
the
view that, it was simply not possible in the context of the
condonation application to make a provisional finding on the
authenticity
of the document, which could prove decisive, in
assessing the prospects of success.
[19]
It was also not inappropriate, in my view, in the light of these
difficulties for the arbitrator to consider them to be factors
which
gave impetus to the need to allow the matter to proceed to a hearing.
[20]
It is true that the arbitrator does not appear to have expressly
considered the relative prejudice to the parties in arriving
at his
ruling. However, I am not persuaded that if he had, he would
necessarily have accepted that the prejudice to BMW of allowing
the
matter to proceed outweighed the prejudice to Davis of not allowing
her claim to be ventilated. BMW contends that allowing
the claim to
proceed could prejudice all its staff planning activities and
retirement funding because it would expose the company
to other
claims from similarly placed employees. That seems to be a somewhat
exaggerated claim. The dispute is simply whether or
not one
individual’s retirement age was 65 or not. On Davis’s
version, she made an election as BMW required her to,
and accordingly
was entitled to retain a later retirement age. She is either right or
wrong in this regard. There is no reason
why determining that dispute
would necessarily have far ranging implications for BMW’s staff
planning or retirement finances
in general. Consequently, I am not
persuaded that if the arbitrator had paid attention to the prejudice
contended for by BMW that
he would necessarily have come to a
different conclusion in the exercise of his discretion.
Order
[1]
The review application is dismissed.
[2]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
V v.d. Westhuizen instructed by Norton Rose Fulbright
RESPONDENT:
H
Barnes instructed by Ruth Edmonds Attorneys
[1]
(2015) 36
ILJ
2802 (LAC) at 2813
[2]
(2000) 21 ILJ 1079 (LAC)
[3]
(2003) 24
ILJ
2284 (LAC) at 2286, para [3].
[4]
At 1081-2.