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[2018] ZALCJHB 300
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City of Ekurhuleni Metropolitan Municipality v South African Local Government Bargaining Council and Others (JR246/17) [2018] ZALCJHB 300 (28 September 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR246/17
In
the matter between:
CITY
OF EKURHULENI METROPOLITAN
MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First
Respondent
MNS
DAWSON
N.O
Second
Respondent
SAMWU
OBO NOMATHEMBA
NGAWE
Third
Respondent
Heard:
14 September 2018
Delivered:
28 September 2018
Summary:
Review application – arbitrator clothed himself with the
jurisdiction he did not have.
JUDGMENT
NKUTHA-
NKONTWANA. J
Introduction
[1]
In this
application, the applicant (Ekurhuleni Metro) seeks an order
reviewing as setting aside the arbitration award under case
number
GPD111505 dated 1 August 2016 wherein the second respondent (the
arbitrator) found that Ekurhuleni Metro’s conduct
in refusing
to pay Ms Nomathemba Ngawe’s (Ms Ngawe) back pay subsequent to
her placement constitutes an unfair labour practice
in terms of
section 186 (2)(a) of the Labour Relations Act
[1]
(LRA).
[2]
The
application is vigorously opposed by the third respondent, the South
Africa Municipal Workers Union (SAMWU).
Background
[3]
The facts
in this matter are mostly common cause. The genesis of the dispute
between the parties can be traced to the establishment
of Ekurhuleni
Metro as a Metropolitan which resulted in amalgamation of 14 former
municipalities. The employees from all the disestablished
municipalities were transferred as a going concern and their
placement in the new structure was regulated by the Collective
Agreement
on Placement (Placement Agreement) concluded between
Ekurhuleni Metro and the trade unions, including SAMWU. The Placement
Agreement
sought to regulate placement of staff in the new structure
and provided a dispute resolution process in the event placements are
challenged. The ‘close matching’ of old and new positions
was a fundamental principle agreed to and applied in the
placement
process.
[4]
Like most
employees, Ms Ngawe challenged her placement. The placement disputes
were presided over by independent arbitrators who
issued final and
binding arbitration awards in terms of Clause 4 of the Placement
Agreement. In this instance, Ms Ngawe challenged
her placement as a
general worker and contended that the closely matched position was
that of Clerk Grade 1. The arbitrator upheld
her claim but refused to
grant her back payment. In essence, Ms Ngawe was placed in a position
of Clerk Grade 1 with effect from
21 April 2010. Ekurhuleni Metro
accepted the finding and complied without any waste of time.
[5]
In November
2015, SAMWU referred two separate unfair labour practice disputes
pertaining to the same matter to the first respondent
(SALGBC). The
referral under case number GPD 121506 (second referral) was presided
over by Advocate Mosala Matlatle (Advocate Matlatle)
on 26 January
2016. Ekurhuleni Metro raised a jurisdictional point which was
upheld. Advocate Matlatle rendered a well-reasoned
jurisdictional
ruling dated 15 February 2016.
[6]
The
referral under case number GPD 111505 (first referral) was
conciliated by Ms Lindiwe Khumalo on the same date, 26 January 2016.
She subsequently issued a certificate of non-resolution. SAMWU
requested that the matter be arbitrated on the strength of the
certificate of non-resolution hence the impugned award.
[7]
Ekurhuleni
Metro’s main ground of review is essentially that the
arbitrator misconstrued the enquiry and consequently exceeded
his
powers.
Review
test
[8]
Tritely,
the review test entails an inquiry into the qualities that make a
decision reasonable, referring both to the process of
articulating
the reasons and to outcomes.
[2]
In
Head
of the Department of Education v Mofokeng
,
[3]
the Labour Appeal Court (the LAC) made it clear that ‘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.’
[9]
In
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia),
[4]
quoted with approval in
Mofokeng
,
the Supreme Court Of Appeal (SCA) stated:
‘
The general
principle is that a ‘gross irregularity’ concerns the
conduct of the proceedings rather than the merits
of the decision
.
A qualification to that principle is that a ‘gross
irregularity’ is committed where decision-makers misconceive
the
whole nature of the enquiry and as a result misconceive their
mandate or their duties in conducting the enquiry. Where the
arbitrator’s
mandate is conferred by statute then, subject to
any limitations imposed by the statute, they exercise exclusive
jurisdiction over
questions of fact and law
.’
(Emphasis added)
Evaluation
[10]
It is clear
from the record that the arbitrator refused to deal with Ekurhuleni
Metro’s jurisdictional point to the effect
that the matter had
been disposed of in terms of Advocate Matlatle’s jurisdictional
ruling. He was adamant that since he
was armed with the certificate
of non-resolution, his jurisdiction was well founded. Clearly, he was
incorrect. The certificate
of non-resolution only enabled the matter
to be set down for arbitration. It was incumbent upon the arbitrator
to embark on his
own enquiry in order to satisfy himself that he was
indeed clothed with the necessary jurisdiction to deal with the
matter.
[5]
[11]
In the
proceedings relating to the second referral, Ekurhuleni Metro also
raised the issue of condonation as the referral was 61
months late.
Nonetheless, Advocate Matlatle correctly disposed of the matter on
the main point
in
limine
.
He held that the arbitration award that placed Ms Ngawe without back
payment was final and binding. As such, it could only be
interfered
with through a review application in this Court. Advocate Matlatle’s
jurisdictional ruling was never challenged
by SAMWU and it must
stand.
[12]
The
arbitrator patently
misconceived
the whole nature of the enquiry. As a result, he exceeded the mandate
conferred to him by the LRA by clothing himself
with the jurisdiction
he did not have.
Conclusion
[13]
In
all the circumstances, the arbitrator committed a reviewable
irregularity and as such the arbitration award stands to be reviewed
and set aside. There is no need to remit the matter back to the
SALGBC in the light of Advocate Matlatle’s jurisdictional
ruling.
[14]
Condonation
stands to be granted given the fact that Ekurhuleni Metro is
successful on the merits.
Costs
[15]
On the
issue of costs, it is well known that costs do not necessarily follow
the result in this Court, especially if the parties
are in a
persisting relationship as typified in the present case. In any
event, Ekurhuleni Metro did not persist with a request
for costs.
[16]
In the
premises, I make the following order:
Order
1.
The
arbitration award under case GPD 111505 dated 1 August 2016 is
reviewed and set aside.
2.
There is no
order as to costs.
__________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant: Advocate L Monnakgotla
Instructed
by: Mohamed Randera & Associates
For
the first respondent: Advocate E Masombuka
Instructed
by: Madlela Gwebu Mashaba Inc.
[1]
Act 66 of 1995 as amended.
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC);
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others
[2013]
ZALAC 28
;
[2014] 1 BLLR 20
(LAC); (2014) 35 ILJ 943 (LAC) at para
14; see also
Herholdt v
Nedbank Ltd (Congress of South African Trade Unions as amicus curia)
[2013] 11 BLLR 1074 (SCA).
[3]
[2015] 1 BLLR 50
(LAC) at paras 30 to
33.
[4]
[2013] 11 BLLR 1074
(SCA) at para 10.
[5]
See:
SA
Rugby Players’ Association
(
SARPA
)
and others v SA Rugby
(
Pty
)
Ltd and Others; SA Rugby
Pty Ltd v SARPU and Another
(2008)
29 ILJ 2218 (LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC) at paras 40 and 41. See
also
Benicon Earthworks and
Mining Services
(
Pty
)
Ltd v Jacobs NO and Others
(1994) 15 ILJ 801 (LAC);
[1994] 9 BLLR 1
(LAC) at 804C–D.