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[2018] ZALCJHB 361
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Lejweleputswa District Municipality v South African Local Government Bargaining Council and Others (JR 790/16) [2018] ZALCJHB 361 (6 November 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 790/16
In
the matter between
LEJWELEPUTSWA
DISTRICT MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
First Respondent
ADV
P.M VENTER
N.O
Second Respondent
IMATU
OBO R HENNOP
Third Respondent
Delivered: 06
November 2018
JUDGMENT
MAHOSI
J
[1]
This
is an application
in
terms of section 145 of the Labour Relations
Act
[1]
(LRA)
in
terms of which the applicant seeks an order to review and set aside
the arbitration award issued by the second respondent (the
arbitrator) under the auspices of the first respondent (SALGBC),
under case number FSD 091509 dated 11 March 2016.
[2]
In his award, the arbitrator found that the applicant committed an
unfair labour practice in terms of section 186(2)(b) of the
LRA. The
arbitrator
ordered the applicant to pay the
third respondent’s member (employee) compensation equivalent to
one month’s salary,
that the suspension should be lifted within
five days from receipt of the arbitration award and that the employee
must be allowed
to resume her duties.
[3]
The key question that this Court must consider is
whether the arbitrator’s decision is one that a reasonable
decision-maker
could not reach.
Material background
facts
[4]
The employee was employed by the applicant as an Expenditure Clerk.
She was served with a notice of intention to suspend on
28 May 2015
and was given 48 hours within which he was to submit written reasons
as to why the suspension should not be effected.
On 29 May 2015, the
employee sent a correspondence to the applicant indicating that she
was unable to provide reasons as requested
as the notice was
allegedly vague and confusing. On 8 June 2015, the employee was
suspended.
[5]
The disciplinary hearing was set down for 28 July 2015 on which date
the employee requested time to prepare her defence. The
postponement
was granted and the hearing was set down again on 10 September 2015
on which date the employee’s representative
requested that the
matter be postponed
sine die
to allow her the opportunity to
refer the matter to the
SALGBC
for the
interpretation of clause 6.10 of the Disciplinary Procedure and Code
Collective Agreement (DPCCA). On 14 October 2015,
the applicant set
down the disciplinary hearing, but the employee requested the hearing
to be heard following the determination
of the interpretation
dispute.
[6]
The interpretation dispute was set down for conciliation on 19
October 2015, but the employee did not attend the conciliation.
The
matter remained unresolved, and the certificate of outcome was
issued.
[7]
The disciplinary hearing was set down again for 2 November 2015 for
arbitration. The employee requested that the hearing be
postponed to
allow the arbitration proceedings on the interpretation dispute to
take place first. While awaiting the arbitration
on the
interpretation dispute, the employee referred an unfair labour
practice which was arbitrated on 23 February 2016. The arbitration
was determined only on written arguments.
[8]
In its papers beore the arbitrator, the applicant raised a
jurisdictional point that the cause of action on which the employee
based his claim was not binding on the parties in that the DPCCA was
declared to be invalid by the Labour Court. The arbitrator
ruled that
the
SALGBC
was vested with the necessary
jurisdiction as the matter was referred in terms of 186(2) of the LRA
and that whether or not the
employee could rely on the DPCCA formed
part of the merits of the matter.
[9]
The parties then agreed that the only issue in dispute was whether
the DPCCA was applicable to the parties as on 28 May 2015
up until 17
September 2015 when the judgment declaring the collective agreement
invalid was handed down. It was the applicant’s
submission that
the arbitrator’s finding would bring an end to his enquiry.
Further that there was no reasonable justification
for awarding the
employee compensation since she was on suspension with full pay. The
arbitrator found that the applicant committed
an unfair labour
practice and ordered the Municipality to uplift the employee’s
suspension and to compensate her one month’s
salary. It is this
outcome that the applicant seeks to review and set aside.
Grounds
of review
[10]
The applicant’s grounds for review were that the arbitrator
exceeded his powers, alternatively committed gross misconduct
in
relation to his duties as an arbitrator, or alternatively committed a
gross irregularity and further alternatively that his
ruling is not
rationally justifiable having regard to the material properly
available to him at the hearing and that the ruling
is one that a
reasonable decision-maker could not have reached in circumstances in
that he failed to :
10.1
Appreciate that the only dispute between the parties was whether the
DPCCA entered into between the parties on 21 April 2016
was binding
on the parties on 28 May 2015 up until 17 September 2015 when the
judgment was delivered.
10.2
Appreciate that the applicant gave a full explanation as to why the
suspension was necessary which explanation again was not
refuted by
the third respondent when they had an opportunity to do so in reply.
10.3
Provide reasons as required, for his finding why he considered the
Disciplinary Code to be still applicable despite the Court
declaring
it invalid.
10.4
Provide reasons as to why he awarded compensation in the
circumstances where the third respondent’s suspension was with
full pay.
Applicable law and
analysis
[11] The arbitration
awards are reviewable in terms of section 145 (1) of the LRA, which
provides that ‘any party to a dispute
who alleges a defect in
any arbitration proceedings under the auspices of the Commission may
apply to the Labour Court for an order
setting aside the arbitration
award’. Section 145(2) defines a defect as the commissioner’s
misconduct in relation
to the duties of the commissioner as an
arbitrator, gross irregularities in the conduct of the arbitration
proceedings, exceeding
the commissioner's powers or improperly
obtaining an award.
[12]
The test for review which has been authoritatively stated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
was reiterated in
Herholdt
v Nedbank Ltd and Congress of South African Trade Unions
[3]
as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls in one of the grounds in s 145(2)(a) of the LRA.
For a defect in the conduct of the proceedings to amount to
gross
irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must
have misconceived the nature of the enquiry or arrived
at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach on all
the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached to particular
fact, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their effect is
to render the outcome
unreasonable.’
[13]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation Mediation and Arbitration and Others,
[4]
the
Labour Appeal Court (LAC) stated as follows:
‘
[17]
The fact that an arbitrator committed a process-related irregularity
is not in itself a sufficient ground for interference
by the
reviewing court.
The fact
that an arbitrator commits a process-related irregularity does
not
mean that the decision reached is necessarily one that a reasonable
commissioner in the place of the arbitrator could not reach.
[18]
In a review conducted under s145(2)(a)(c) (ii) of the LRA, the review
court is not required to take into account every factor
individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by
the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award.
This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider the
totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker could
make.’
[14]
In
Head
of the Department of Education v Mofokeng and Others
[5]
the
LAC confirmed
Herholdt
and
Mofokeng
judgments
and held as follows:
‘
The
failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be
an
irregularity. However, the Supreme Court of Appeal (“the SCA”)
in
Herholdt v Nedbank Ltd
and
this court in
Goldfields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome.’
[15]
The LAC further held as follows:
‘
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 inquiry.
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 inquiry, 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.
’
[6]
[Footnotes omitted]
[16]
Although the applicant raised a number of grounds, the question is
mainly whether the arbitrator understood and identified
the nature of
the dispute he was required to arbitrate and further that he dealt
with the substantial merits of the dispute before
him. The
applicant’s submission was that the arbitrator failed to
appreciate that the only issue before him was whether or
not the
DPCCA was applicable.
[17]
Despite the fact that the dispute that was referred by the employee
was whether the applicant committed an unfair labour practice,
the
parties signed and presented the arbitrator with a statement of case
that determined how the matter was to run and what issue
the
arbitrator had to consider. It is apparent that
t
he
arbitrator followed a process that was agreed to by both parties.
In
his award, the arbitrator specified the issues in dispute as follows:
‘
ISSUES
TO BE DETERMINED:
9.1 I was firstly
required to determine whether the matter had to be postponed; and
9.2 I was also called
upon to determine whether the bargaining Council is vested with
jurisdiction to determine the matter; and
9.3 I was also called
upon to determine whether or not the respondent committed an unfair
labour practice within the ambit of section
186(2) of the LRA.’
[18]
The arbitrator refused to grant postponement and
ruled that the SALGBC had jurisdiction to arbitrate the
matter as it
was referred in terms of section 186(2) of the LRA. In his analysis
of the evidence and arguments, the arbitrator
identified the common
cause issues and the dispute, i.e.
whether the
DPCCA entered into between the parties on 21 April 2016 was binding
on the parties on 28 May 2015 up until 17 September
2015 when the
judgment was delivered
.
The award shows that both parties addressed the arbitrator to this
effect and that he understood the nature of the dispute before
him.
[19]
The applicant makes statements to the effect that the arbitrator
failed
to provide reasons for his finding that he considered the DPCCA to be
still applicable despite the Court declaring it invalid.
The
Court cannot entertain this attack on the arbitrator
given
that the applicant provided the Court with an incomplete arbitration
award.
[7]
The ground that the
arbitrator
failed
to provide reasons as to why he awarded compensation in the
circumstances where the third respondent suspension was with
full pay
is unwarranted and has no merit. It is apparent that the arbitrator
declined granting the employee 12 months’ compensation
on the
basis that she presented no evidence or argument to justify it and
found one month’s salary to be just and equitable.
[20]
The manner in which the arbitrator analysed the dispute before him
does not support the applicant’s version that he misconstrued
the enquiry he had to conduct. The arbitrator stated in clear terms
that he had to determine whether the
DPCCA was applicable
between the parties and whether the applicant committed an unfair
labour practice
. The applicant further failed to
establish that the arbitrator conducted the enquiry incorrectly
because, as the award reflects,
he dealt with the issue before him
correctly.
As such, the applicant failed to
discharge the
onus
of establishing that the arbitrator either committed misconduct in
relation to his duties as an arbitrator, a gross irregularity
in the
conduct of the arbitration proceedings, or that he exceeded his
powers. There is, therefore, no reason for this Court to
interfere
with the arbitrator’s award.
[21]
With regard to costs, taking into account the requirements of law and
equity, I believe that this is a matter in which there
should be no
order as to costs.
[22] In the
circumstances, I make the following order:
Order
1.
The application is dismissed.
2. There is no order as
to costs.
D Mahosi
Judge of the Labour Court
of South Africa
Appearances
For the Applicant: Mr T.
Modisane of Finger Attorneys
[1]
Act 66 of 1995 as amended.
[2]
2007 (28) ILJ 2405 (CC)
at
para
25.
[3]
2013 (6) SA 224
(SCA);
2013 (11) BLLR 1074
(SCA); 2013 (34) ILJ 2795
(SCA)
a
t
para 25.
[4]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 17 and 18.
[5]
[2015]
1 BLLR 50
(LAC) at para 30.
[6]
Id
a
t
para 33.
[7]
Page
23 of the arbitration award is missing from the record.