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[2018] ZALCJHB 360
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Tubatse Chrome (Pty) Ltd v Metal and Engineering Industries Bargaining Council and Others (JR 808/16) [2018] ZALCJHB 360 (6 November 2018)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 808/16
In the matter between:
TUBATSE CHROME (PTY)
LTD
Applicant
And
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
First Respondent
COMMISSIONER RAYMOND
DIBDEN
Second Respondent
NUM OBO SENEUS
MABUZA
Third Respondent
Heard: 25 April 2018
Delivered: 06 November
2018
JUDGMENT
LALLIE. J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent. It is opposed by the third respondent.
Background
[2]
The factual background to this matter is that the applicant and the
National Union of Mineworkers (NUM) concluded the disability
management agreement (the collective agreement) on 12 December 1997.
Clause 1 of the collective agreement provides that its purpose
is to
set down principles and procedures which will govern their
relationship in respect of employees who experience a serious
medical
condition which impairs their ability to perform their normal duties.
[3]
The individual third respondent fell ill in August 2015. As he was
close to retirement, the applicant placed him on extended
sick leave
until his retirement. The NUM referred a dispute in terms of section
24 of the Labour Relations Act
[1]
(LRA) to the first respondent (the Bargaining Council) for the
interpretation of the collective agreement on the basis that its
proper interpretation entitled the third respondent to benefits,
which the applicant denied. The dispute was interpreted by the
second
respondent (the arbitrator) who issued an award to the effect that in
terms of clause 5.2 of the collective agreement, the
applicant was
obliged to terminate the third respondent’s services and pay
him the separation benefits as set out in the
collective agreement.
[4]
The applicant’s main ground for review is that the arbitrator
committed a material error of law in interpreting the collective
agreement as a result of which he reached an incorrect and
unreasonable decision. The applicant further submitted that with
reference
to employees whose retirement was imminent, the intention
underlying the collective agreement included allowing such employees
to retain employment until their retirement, to protect them from
losing their retirement benefits consequent upon the termination
of
their employment before their retirement dates.
[5]
In opposing the application the third respondent denied that the
arbitrator erred in interpreting the collective agreement.
It denied
that the applicant sought to rely on the position of employees whose
retirement was imminent at arbitration but its representative
pointed
towards a serious financial situation which the applicant found
itself in at the time, which resulted in the refusal to
pay the third
respondent benefits in terms of the collective agreement.
[6]
Part of the applicant’s argument to have the award reviewed and
set aside was that as a result of the arbitrator’s
failure to
require the parties to lead oral evidence, he did not place himself
in a position to determine the dispute before him
fairly. The third
respondent argued that there was no need for oral evidence and that
the arbitrator correctly decided the dispute
on the submissions made
by the parties before him.
[7]
Section 138 (1) of the LRA enjoins arbitrators to determine disputes
fairly and to deal with the substantial merits of such
disputes. It
is common cause that the applicant and the third respondent decided
not to lead evidence but to rely on written submissions.
Notwithstanding the agreement, in terms of section 138 (1) of the LRA
it is the arbitrator who has the power to determine how arbitrations
should be conducted. He should have exercised this discretion
judiciously with a view of fulfilling his duties as an arbitrator.
[8]
In a number of discussions, the Labour Appeal Court has expressed the
need for parties to file a statement of agreed facts when
they want
to dispense with the leading of oral evidence. The applicant and the
third respondent failed to file a statement of agreed
facts. In this
application they raise different facts which led to the non-payment
of benefits to the third respondent in terms
of the collective
agreement. The facts which led to the dispute are material. The
arbitrator’s decision on the interpretation
and application of
the collective agreement should have been based on the facts of the
dispute. No facts were presented before
the arbitrator either in the
form of an agreed statement of facts or oral evidence.
[9]
The effect of the arbitrator’s conduct of determining the
dispute before him in the absence of either oral evidence or
a
statement of agreed facts is expressed thus in
PSA
v Minister of Correctional Services
[2]
as follows:
“
[17]
The factual matrix is important because each agreement must be placed
in its proper context. Agreements are not made in a vacuum;
they are
a product of a particular background, context and knowledge of the
parties thereto. It has been said that words without
context mean
nothing and that context is everything. That however does not mean
that the words used by the parties become insignificant.
Consideration must always be given to the language used in the
particular context without allowing the context to drown the words
chosen by the parties. The words used by the parties are the
foundation on which the court and or arbitrator must build its
interpretation.
The process is succinctly set out in Natal Joint
Municipal Pension Fund v Endumeni Municipality
[3]
.
[18]
I have sympathy for the arbitrator because he was called upon to
interpret a collective agreement devoid of a factual matrix.
He,
therefore, chose what he perceived to be the rational and logical
contention but failed to interpret the words that he was
called upon
to interpret in their proper context. It is clear from the approach
in relation to the adjudication of a stated case
and the
interpretation of contracts that an agreement cannot properly be
interpreted without a factual matrix.
[19]
The absence of a factual plinth on which to build his interpretation
renders his conclusion unreasonable. He could not apply
his mind
properly to the issue before him without a factual substratum. He
should have refused to deal with the matter without
an agreed set of
facts. This irregularity distorted the result. The decision of the
arbitrator falls outside the band of reasonable
decisions and is
consequently one which a reasonable arbitrator could not reach.’
[10]
The arbitrator’s error of interpreting the collective agreement
without taking into account the facts of the dispute
before him
constituted a defect as envisaged in section 145(2) of the LRA in
that he committed a misconduct in relation to his
duties as an
arbitrator. He erred in not conducting the arbitration fairly and
reached an unreasonable decision.
[11]
In the premises, the following order is made:
Order
1.
The
arbitration award issued by the second respondent under case number
MEMP 165 dated 2 March 2016 is reviewed and set aside;
2.
The
matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second respondent.
Z. Lallie
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate E.Tolmay
Instructed
by: Solomon
Holmes Attorneys
For
the respondent:
K.D Maimane of Maimane Attorneys
[1]
66 of 1995, as amended.
[2]
[2017]
4 BLLR 371
(LAC) at paras 17 – 19.
[3]
[2012]
(4) SA 593
(SCA) at para 18.