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 248
|
|
MEC for Social Development: Mpumalanga v Ramabulana NO and Others (JR423/13) [2018] ZALCJHB 248 (7 July 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
CASE
NO. JR423/13
In
the matter between:
MEC
FOR SOCIAL DEVELOPMENT: MPUMALANGA
Applicant
and
LUFUNO
RAMABULANA
N.O
First Respondent
PUBLIC
HEALTH AND SOCIAL DEVELOPMENT
SECTORIAL
BARGAINING COUNCIL (PHSDSBC)
Second Respondent
TINY
ZULU
Third Respondent
SIMON
UBISI
Fourth Respondent
THEO
TWALA
Fifth Respondent
THEMBI
MHAULE
Sixth Respondent
Heard
: 19 April 2018
Delivered:
07 June 2018
Summary:
Arbitrator found the dismissal unfair based on point
in
limine
oral arguments without oral evidence being led and
not considering merits of the dispute. Award not sustainable,
reviewed and set
aside.
JUDGMENT
BALOYI
AJ
Introduction
[1]
Review and setting aside of the First Respondent’s arbitration
award is the relief sought by the Applicant. In the said
award the
First Respondent found the dismissal of Third to Sixth Respondents
(Respondents) unfair following the arguments presented
based on
points
in limine.
The point in question was raised on behalf
the Respondents on protestation that the applicant had unreasonably
delayed finalization
of the disciplinary proceedings against the
Respondents. Consequently, the First Respondent awarded a relief of
retrospective reinstatement
to the Respondents.
Factual
background
[2]
The Applicant dismissed the Third to Sixth Respondents on 14 February
2012 who subsequently, individually so, referred unfair
dismissal
disputes to the Second Respondent, Public Health and Social
Development Sectoral Bargaining Council (PHSDSBC). The first
matter
to be heard was that of the Sixth Respondent Ms T Mhaule and the
arbitration proceedings were concluded on 27 September
2012 before
the First Respondent. The individual matters involving the Third to
Fifth Respondents, namely T Zulu, S Ubisi and T
Twala were
respectively consolidated and scheduled to be heard together on 12
December 2012. These matters came before the First
Respondent and it
is apparent from the award that such consolidation was ordered by
him.
[3]
It is further apparent from the arbitration award that the First
Respondent knew well in advance that the three matters were
related
to that of Ms Mhaule hence he made a request to the Second Respondent
to have the issuing of the award deferred. The request
was granted
and somewhere in his award under the heading “
analysis of
evidence and findings
”, he recorded that he saw it fit to
incorporate the matter of the Sixth Respondent into that of the Third
to Fifth Respondents
as the effects of the principle argued affects
her matter. He further pointed that both parties confirmed and agreed
that the individual
cases should be recombined.
[4]
The First Respondent disposed of the matter based on arguments
presented by the parties for and against the point
in limine
raised by the Third to Fifth Respondents’ representative.
During such arguments the following was placed before him:
4.1 The Applicant
discovered that fraudulent acts were committed by a number of
employees with the Third to Sixth
Respondents included in that
payments of monies by the Applicant were diverted to benefit
unintended recipients.
4.2
On 17 April 2008 the Applicant placed the employees in question on
suspension.
The suspension was lifted following a settlement
agreement reached between the parties at the Bargaining Council that
the employees
should report for duty on 16 January 2009 and that
charges should be served by no later than 12 January 2009.
4.3 No charges
came forth until in August 2010 when such charges were accompanied by
letters of intention
to transfer the employees. The disciplinary
hearings were concluded in March 2011 and followed by confirmation of
dismissals on
14 February 2012.
4.4
The point
in limine
raised by the Third to Fifth Respondents
was hugely rested on the delays in concluding the disciplinary
process in violation of
clause 2.2.2 of Resolution 1 of 2003. The
Applicant took more than one year and four months to present the
charges after the agreement
was reached at the Bargaining Council.
There was no cogent reason for the delay as the Applicant still
relied on the same material
that was available at the time of
suspension. These delays were indicative of the Applicant’s
waiver of its right to discipline
the employees and relied on some
case law to demonstrate that justice delayed was as much as justice
denied.
4.5
The Applicant in response to the point
in limine
maintained
that the settlement agreement was complied with as the disciplinary
hearings were eventually conducted. Resolution 1
of 2003 only
provided for prompt conduct of proceedings with no specific provision
as to how long should such proceedings take.
Lifting of suspension
interrupted the delays which were occasioned as a result of an in
depth forensic investigation and splitting
of the department which
functions fell under the governance of two MEC’s. The new MEC
had to familiarize himself with the
matter.
The
award
[5]
In his finding that the dismissals were unfair, the First Respondent
noted the delays and found them too unreasonable. Such
delays
violated the expediency principle and were prejudicial to the
Respondents. He went on to set aside such dismissals on account
of
being unfair and awarded the Respondents relief of reinstatement
retrospectively.
The
review
[6]
The Applicant firstly attacks the First Respondent’s award on
the ground that he had exceeded his powers by considering
the Sixth
Respondent as part of the Third to Fifth Respondents’ case,
whilst her own was heard and concluded separately.
There was no
agreement for such inclusion of the Third Respondent. The point
in
limine
was not raised at her arbitration and the First Respondent
had misdirected himself in belatedly filtering the point in her
matter
through another matter.
[7]
Secondly, the First Respondent failed to appreciate the reasons for
the delay and his reliance on the decision in
PSA
obo Bawa v Department of Social Services and Population
Development
[1]
was misplaced in view of the Applicant’s available evidence in
support of the explanation for the delay.
[8]
Thirdly, the First Respondent did not look at the merit of the
matter, most particularly that the Respondents were charged with
serious acts of misconduct.
[9]
Lastly, his finding that the dismissal was unfair could only attract
relief of compensation. This point was expanded during
arguments by
Mr Mokhari SC for the Applicant that the pronouncement of unfairness
of the dismissal either in terms of procedure
and/or substance has
bearing on the relief. His mere finding that the dismissal was unfair
without stating on what respect, inescapably
amounted to a
misdirection, most particularly where reinstatement is awarded.
[10]
In opposition, the Respondents raised the issue of unreasonable
delays in prosecution of the review application on the part
of the
Applicant and called for dismissal of the application on this point
alone. The delays were particularly related to the Applicant’s
sloppy handling of the matter prior to filing of the record.
According to the courier services’ delivery slip the record
was
dispatched with the Registrar on 02 July 2013. The Applicant failed
to uplift the record timeously despite being reminded by
the
Respondents’ trade union to do so. The Applicant had instead of
uplifting the record from the Registrar elected to call
a meeting for
reconstruction of the record in May 2014 and failed to attend the
very meeting.
[11]
The Applicant ultimately served the record on 16 May 2014 and only
filed a notice to stand by its notice of motion on 22 May
2015. The
Applicant viewed this argument as irrelevant for purposes of the
review application but for the application to dismiss
the review
application in terms of Rule 11. It bears mention that the
Respondents filed the Rule 11 application on 11 April 2018
and it was
withdrawn on the date of hearing of this application.
[12]
From Ms Oken’s arguments, the Respondents defended the Sixth
Respondent’s inclusion into this matter. The reason
being that
the other matters involving the rest of the Respondents were
scheduled to be heard on 27 September 2012 and the point
in limine
was also raised in the Sixth Respondent’s matter. Further
that the inclusion of the Sixth Respondent was discussed between
the
First Respondent and the parties’ representatives.
[13]
The Respondents further contended that the Applicant’s reason
for delays had no merit as it relied on the draft report
to dismiss
them and not on the final report. The splitting of the department did
not change anything regarding administration of
the cases. Since
there was no evidence led on the breakdown of trust relationship,
reinstatement remained an appropriate relief
for the Respondents.
The
legal framework and case law
[14]
The provisions of section 138 of the Labour Relations Act
[2]
(LRA) forms the cornerstone of the process upon which Commissioners
should conduct arbitration proceedings. Subsections 1
and 2
which are pertinent for determination of this matter provide as
follows:
“
(1)
The Commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with the minimum of legal formalities.
(2) Subject to the discretion of the
commissioner as to the appropriate form of the proceedings, a party
to the dispute may give
evidence, call witnesses, question the
witnesses of any other party, and address concluding arguments to the
commissioner”
[15]
In putting the above provisions to perspective the Labour Court in
Naraindath v Commission for
Conciliation, Mediation and Arbitration and Others
[3]
placed the following analogy
regarding what is required of the Commissioner in conduct of
arbitration proceedings at paragraph 27
.
[27] In my view it is perfectly clear in
these circumstances that a complaint that a commissioner has
conducted proceedings in a
way which differs from the way in which
the same dispute would be dealt with before a court of law cannot as
such succeed. It is
only where the person seeking to challenge the
commissioner's award can point to specific unfairness arising from
that action by
the commissioner that a proper ground for review is
established. A failure to conduct arbitration proceedings in a fair
manner,
where that has the effect that one of the parties does not
receive a fair hearing of their case, will almost inevitably mean
either
that the commissioner has committed misconduct in relation to
his or her duties as an arbitrator or that the commissioner has
committed
a gross irregularity in
the
conduct of the
arbitration proceedings. (See sections 145(2)(a)(i) and (ii) of the
LRA ;McKenzie, The Law of building and Engineering
Contracts and
Arbitration, 5th Ed. pp l88-189).
[16]
Since this application is founded on the First Respondent’s
approach in the conduct of arbitration proceedings by dispensing
with
oral evidence, it is imperative to look at the court’s reaction
to the approach in question. In
Arends
and Others v SA Government Bargaining Council and Others
[4]
the Labour Appeal Court at
paragraph 15 cautioned on this radical approach where the parties
only made written submissions as follows:
“
[15]
The appellants are to some extent the authors of their own
misfortune. They placed the matter before the arbitrator as if there
was a simple, single issue capable of resolution with the barest
minimum of factual matter. Their approach was neither prudent
nor
correct. 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. Courts of law and arbitration tribunals dealing with
disputes of right exist for the settlement of concrete
controversies
and not to pronounce upon abstract questions or to give advice upon
differing contentions about the meaning of an
agreement. 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”.
[17]
In
SA Social Security Agency v
National Education Health and Allied Workers Union on behalf of Punzi
and Others
[5]
this Court per Rabkin-Naicker J
had in a situation where parties agreed to have the arbitration be
decided on written submissions
and papers before the Commissioner
held as follows at paragraph 8:
“
[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 C 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”.
[18]
In
Department of Home Affair v
General Public Service Sectoral Bargaining Council
[6]
the court per Myburgh AJ moved to
the very same direction taken in the above decisions of the Labour
Appeal Court and this court.
In this regard I can safely accept that
this position is well settled as it was in paragraph 29 specifically
held as follows:
“
[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”.
Evaluation
[19]
It is in this instant case, specifically from the reading of the
arbitration award it is indisputable that oral arguments coupled
with
documents handed to the First Respondent were presented with no oral
evidence led. No agreement on the mode of conduct of
arbitration
proceedings was solicited from the parties by the First Respondent.
Furthermore, the dispute that was the subject of
arbitration
proceedings was solely decided on the point
in limine
raised
by the Respondents.
[20]
The Respondents relied on
Bawa
[7]
to persuade the First Respondent
to uphold their point
in limine
which ultimately led to the
finding that the dismissal was unfair. My reading of the
Bawa
arbitration award which was apparent that the First Respondent felt
strongly obliged not to ignore, reveals these glaring features
which
unassailably distinguished the case in question with the issues he
was required to deal with:
- Oral
evidence was led in
Bawa
matter,
- The
commissioner in
Bawa
matter noted the delays in prosecution of
disciplinary processes, the matter was however decided based on its
merits to arrive
at the finding of unfairness of the dismissal
[21]
It appears very clearly that the First Respondent elected to rely on
the editor’s summary which appeared on the face
of the
Bawa
award and regurgitated it in his award as if he was quoting
Commissioner Rex. I do not find any justification for various points
of misdirection on the part of the First Respondent, including: (i)
abrupt joinder of the Sixth Respondent in to this matter, (ii)
manipulatively driving the parties into the conduct of the
proceedings without giving them opportunity to adduce oral evidence,
(iii) concluding the matter without getting to its merit, and (iv)
awarding retrospective reinstatement without specifying
the
form of unfairness of the dismissal that, is, whether substantially
or procedurally.
[22]
In the light of all episodes displayed in this matter at the hands of
the First Respondent, I am unable to find any reason
why the First
Respondent’s award should stand. Since it has become obvious
that the parties did not have a fair hearing in
this matter, I am
inclined to rule in favour of a remittal of the matter to the Second
Respondent for an arbitration
de novo
.
Costs
[23]
Ordinarily when the matter is remitted for arbitration
de
novo
the court finds it not to be
within the requirements of law and fairness to make a cost order.
This approach is predominantly rooted
on the fact that remittal keeps
litigation on going. Cost orders generally cause strain on the
parties’ future attempts to
settle the dispute. It is
regrettable that this matter gets to be remitted after the period of
five years and the delays in having
this matter heard timeously is
solely based on human factor. To be precise the Applicant’s
conduct in these proceedings is
the cause for all the delays which it
failed to dispute. It elected to label them irrelevant for purposes
of review. This demonstrates
absence of reasonable explanation for
the sloppy conduct of litigation on the part of the Applicant. The
Respondents’ counsel
referred me to the Practice Manual of the
Labour Court
[8]
in her submissions that this application was supposed to have been
archived and ultimately deemed withdrawn. This matter has in
fact
survived the application of the 2013 Practice Manual which contains
the said provisions as it was filed shortly before 01
April 2013.
[24]
This is one matter which making of a cost order is not dependent on
the result as the Court cannot under these circumstances
ignore the
conduct of the Applicant which clearly brought about insurmountable
prejudice to the Respondents who kept on advising
the Applicant to
ensure that the record is uplifted from the Registrar to no avail.
These prejudices are a result of non- compliance
with the Rules and
can in this regard be remedied by awarding costs to the Respondents.
[25]
In the premises the following order is made:
Order
1. The arbitration award
under case number PSHS327-12/13, PSHS328-12/13, PSHS541-12/13 and
PSHS923-11/12 made
by the First Respondent is reviewed and set aside.
2. The dispute is referred
back to the Second Respondent for arbitration
de novo
before
an arbitrator other than the First Respondent.
3. The Applicant is ordered
to pay the Third to Fifth Respondent’s costs.
____________________
MM Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Advocate
W Mokhari SC
Instructed
by:
The State Attorney, Pretoria
For
the First Respondent: Advocate
Oken
Instructed
by:
Nkosi Attorneys & Associates
[1]
(2009) 6 BALR 575 (PHSDSBC).
[2]
Act 66 of 1995 as
amended.
[3]
(2000) 6 BLLR 716 (LC).
[4]
(2015) 36 ILJ 1200 (LAC).
[5]
(2015) 36 ILJ 2345 (LC)
[6]
(2018) 39 ILJ 248 (LC)
[7]
Ibid.
[8]
April 2013.