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[2018] ZALCJHB 366
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General Industries Workers Union of South Africa and Others v National Bargaining Council for the Furniture Industry and Others (JR414/14) [2018] ZALCJHB 366 (8 November 2018)
IN
THE LABOUR COURT of South Africa, JOHANNESBURG
Not
Reportable
C
ase
no: jr 414/14
In
the matter between:
GENERAL
INDUSTRIES WORKERS UNION
OF
SOUTH
AFRICA First
Applicant
93
EMPLOYEES
Second
Applicants
and
THE
NATIONAL BARGAINING COUNCIL
FOR
THE FURNITURE INDUSTRY
First Respondent
FJ
STASSEN
N.O
Second
Respondent
JACK MASEROW FURNITURE
MANUFACTURER CC
Third Respondent
Heard:
30 November 2017
Delivered:
08 November 2018
JUDGMENT
MAHOSI.J
[1]
This
is an application
in
terms of section 158(1)(g) of the Labour Relations
Act
[1]
(LRA)
in
which the applicants seek an order to review and set aside the
jurisdictional ruling issued by the second respondent (arbitrator)
under the auspices of the first respondent (Bargaining Council),
under case number FAJA 4710-11/12 dated 21 December 2013. In his
ruling, the arbitrator found that the bargaining council lacks
jurisdiction to adjudicate the matter.
Material
background facts
[2]
On 27 September 2012, the third respondent dismissed all of its
employees after they took part in an unprotected strike action
that
commenced on 19 September 2012. Following their dismissal, the third
respondent placed notices outside of its premises on
28 September
2012 and 1 October 2012 in terms of which it offered all the
dismissed employees an opportunity to re-apply for employment
at the
same rate of pay, with the same benefits and without any loss of
their long service benefits. The offer for re-employment
was to
expire on 2 October 2012 at 16:30. None of the employees had taken up
the third respondent’s offer and/or invitation
of 28 upon
expiry thereof.
[3]
It is not in dispute that on 4, 5 and 6 October 2012, the third
respondent posted adverts in the Daily Sun and Sowetan Newspapers
inviting suitable members of the general public to apply for the
vacant posts. On 10 October 2012, there was a long queue outside
of
the third respondent’s factory made up of prospective job
applicants as well as previously dismissed employees of
the third
respondent. The queue was serviced on a first come first serve basis
and on the same day there were in excess of 60 of
the first
applicant’s members standing outside watching the queuing job
applicants. The owner of the third respondent approached
the first
applicant’s members with the view of inviting them to
join the queue and to apply for employment. Some of
the members
joined the queue to apply for employment. On 12 October 2012, all the
advertised positions were filled and of the total
number of
applicants appointed 68 of them were members of GIWUSA at the time.
[4]
The first applicant referred a selective re-employment dispute to the
bargaining council. After being unsuccessfully conciliated,
the
matter was referred to arbitration. During arbitration, the third
respondent raised two points
in limine
. Firstly, that the
bargaining council has no jurisdiction to arbitrate the dispute
because the applicants raised allegations of
discrimination.
Secondly, that the applicants’ case did not sustain a cause of
action on the basis of selective re-employment.
The arbitrator issued
an award in terms of which he found that the bargaining council
lacked jurisdiction to arbitrate the matter.
It is this ruling that
is the subject matter of this application.
[5]
In its answering affidavit, the third respondent raised two points
in
limine
. The first being that the first applicant failed to annex
a list of employees it claims to represent. This issue was initially
raised by the third respondent at the arbitration hearing on the
basis that some of the employees listed were not recognised as
having
ever been employees of the third respondent. The second point was
that the applicant failed to file a transcribed record
within the
prescribed period. For the reasons that become apparent below, I do
not deal with these points.
Grounds
of review
[6]
The applicant’s grounds for review are as follows:
‘
15.1
The commissioner committed gross irregularities in the conduct of his
duties in that he misconstrued evidence before him and
thus reached a
conclusion which is not justifiable with regard to the
evidence which was before him.
15.2
The commissioner failed to apply his mind to the relevant evidence
properly placed before him in that he failed to look beyond
the mere
allegation of the third respondent in establishing the nature of the
dispute when he was obliged to examine all the facts
in order to
ascertain the real dispute between the parties.
15.3
The commissioner misconceived the nature of his discretion in that he
failed to apply the correct principles governing the
rules of
evidence and failed to apply the proper test to interpret relevant
statutory and case law.
15.4
The Commissioner exceeded his powers by committing a material error
in law when he attached undue weight to the fact that the
conciliating commissioner has certified that the dispute i
n
casu
was
justiciable in the Labour Court and the applicant ignored that route
and then awarded costs against the First Applicant.’
[2]
Applicable law and
analysis
[7]
The test for review applications based on jurisdictional error is
well established and has been stated in numerous cases of
this Court
and the Labour Appeal Court as the correctness test. In
SA
Rugby Players’ Association v SA Rugby (Pty) Ltd and Others; SA
Rugby (Pty) Ltd v SARPU,
[3]
the Labour Appeal Court (LAC) held as follows:
‘…
The
issue was simply whether, objectively speaking, the facts which would
give the CCMA jurisdiction to entertain the dispute existed.
If such
facts did not exist, the CCMA had no jurisdiction irrespective of its
finding to the contrary.’
[8]
The applicant has to establish that the arbitrator’s decision
was objectively wrong. In
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO and Others,
[4]
the court held as follows:
‘
In
my view where the power to be exercised is statutory, the answer to
the question of what the jurisdictional fact(s) is (are)
which must
exist before such power can be exercised lies within the four corners
of the statute providing for such power. Accordingly
the provisions
of such statute require to be considered carefully to determine what
the necessary jurisdictional fact(s) is (are).
In the light of this I
consider it necessary to have regard to the provisions of the Act to
determine what the necessary jurisdictional
fact(s) is (are) which
must exist in a case such as this one before it can be arbitrated or
adjudicated in terms of the Act.’
[9]
The arbitrator’s finding that the bargaining
council had no jurisdiction to hear the dispute was premised on two
issues. The
first one was that the applicant’s case was based
on the fact that the employees were not re-employed because of their
union
affiliation. The second one was that the factual basis of the
dispute did not constitute a cause of action based on selective
re-employment
as envisaged in section 186(1)(d) of the LRA.
The
applicant submitted that the arbitrator misquoted the part of the
pre-arbitration minute that he relied on to reach his finding
when he
stated that: “
it is abundantly clear that the applicant in
essence relies on unfair discrimination as foundation for its
dispute”
. The relevant part of the pre-arbitration minute
stated as follows:
‘
4.7
The applicants further allege that
some of the individual
applicants
were not appointed by the respondent because of the
union affiliation and membership and further that this constitutes an
alleged
unfair dismissal based on the selective non re-employment by
the respondent.’
[10]
In his award, the arbitrator recorded that:
‘
The
respondent's argument is that the applicant's case is based on the
fact that the employees concerned were not appointed because
of the
union affiliation to the applicant union.’
[11]
In this regard, the applicant submitted that while other employees
were discriminated against, it could not have referred a
discrimination dispute as it would prejudice most of the employees
for whom the reason for non re-employment was not discrimination.
It
was on this basis that the applicant argued that the arbitrator
failed to look beyond the mere allegation in establishing the
real
dispute between the parties. The respondent submitted that clarity in
relation to this was sought during arbitration which
resulted in the
applicant’s confirmation that the reason for non re-employment
was a combination of arbitrary reasons and
union membership. Nothing
turns on this ground given the arbitrator’s finding on the
second pre-liminary point below.
[12]
On the arbitrator’s finding that the dismissal on selective
re-employment cannot succeed, the applicant submitted that
the
arbitrator lost sight of the realities and the agreed facts between
the parties. The relevant part of the award states as follows:
‘
4.7
It was common cause that an offer was initially
made to all dismissed employed. The affected employees in this
dispute did not accept
the offer. Therefore, if the applicant wanted
to succeed, on the basis of the newspaper advertisement, it would
have to show that
it constituted an “offer”. In this
regard, the respondent submitted that the dictum in a 105 year old
decision, namely
Crawley v Rex
1900 TS 1105
, clearly cripples a reliance based on an “offer”.
In this decision it was held that the fact that a tender advertises
aprios for a commodity does not per se constitute a binding contract
at that price. The court also went on to state that it would
lead to
most extraordinary results if advertisements in that fashion were to
be held to constitute binding agreement if accepted
by those who
acted upon it.
4.8 The applicants’
response to the second point
in limine
was, in my opinion
couched in an academic treatise of some principles of the law of
contract. Most of the submissions are obviously
correct if considered
in isolation. However, it appears to me, with respect, that the
author of the document, in his or her search
for a sound argument
against that of the respondent lost sight of the realities and the
agreed facts in this case. The basic facts
are that the offer of
re-employment was made to the relevant employees on the same terms
that existed prior to their dismissal.
They did not accept the offer
before the expiry thereof. The subsequent advertisement did not
constitute an offer as envisaged
in the LRA. Even if the employees
had applied for positions on the strength of the advertisement (then
obviously with less favourable
terms and conditions than those that
existed prior to their dismissal), the respondent was under no legal
obligation to appoint
any or all of them. It was the employer’s
right to select any of the applicants from the newspaper
advertisements, whether
they were ex-employees or “first
timers” whom it considered to be suitable for the respective
positions. The employees
had an opportunity to return to the
workplace. They rejected it. They cannot now demand positions they
have rejected when it was
offered to them without sacrificing any
previous benefit. I am therefore of the view the second point
in
limine
should also succeed.’
[13]
The reading of the record and the award clearly indicate that the
parties
signed and presented the arbitrator with a pre-arbitration minute
that determined how the matter was to run and what issues
the
arbitrator had to consider. The arbitrator assessed the evidence
presented before him and determined whether
the
facts which would give the bargaining council jurisdiction to
entertain the dispute existed and concluded that such facts were
absent. The employees were dismissed which dismissal they did not
challenge. The third respondent offered to re-employ them but
they
failed to take up the offer. Two choices were left for the third
respondent that is to close the business or to open up the
recruitment process to the general public. The applicants failed to
show to the arbitrator that the advertisement for employment
to the
general public amounted to an offer to re-employ them. For those
reasons, the arbitrator found that the factual basis of
the dispute
did not constitute a cause of action based on selective re-employment
as envisaged in section 186(1)(d) of the LRA.
As such, the applicants
failed to establish that the arbitrator
lost sight of the
realities and the agreed facts between the parties
.
[14]
On the issue of costs, the applicant submitted that the arbitrator
misdirected himself and committed a gross irregularity in
that he
overlooked the fact that he was not bound by the determination of the
conciliating commissioner. In his award, the arbitrator
ordered the
applicant to pay the third respondent’s costs on the basis that
the applicant ignored the certificate of outcome
which directed it to
refer its dispute to the Labour Court and instead referred its
dispute for arbitration.
[15]
The arbitrator’s discretion to award a costs order in
arbitration proceedings is regulated by section 138(10) of the
LRA,
which requires the commissioner to make an order for the payment of
costs according to the requirements of law and fairness,
in
accordance with CCMA rules. In ordering the costs, the commissioner
should, in terms of Rule 39(1) of the Rules of the CCMA
have regard
to the following factors:
‘
(
a)
The measure of success that the parties achieved;
(b) Considerations of
fairness that weigh in favour of or against granting a costs order;
(c)
any prejudice offers that were made with a view to settling the
dispute;
(d) Whether a party or
the person who represented that party in the
arbitration proceedings acted in a frivolous
and vexatious manner by
proceeding with or defending the dispute in the arbitration
proceedings, or in its conduct during the arbitration
proceedings;
(e) The effect that a
costs order may have on a continued employment relationship;
(f) Any agreement
concluded between the parties to the arbitration concerning the basis
on which costs should be awarded;
(g)
The importance of the issues raised during the arbitration to the
parties as well as to the labour community at large;
(h)
Any other relevant factor.’
[16] The costs order
where parties are represented in the arbitration by a person
contemplated by Rule 25(1)(a),
that is persons other than a
legal representative, is regulated by Rule 39(2). These persons may
be awarded reasonable disbursements
actually incurred in the conduct
of its case. A commissioner who makes an award in terms of this
provision is required to
specify clearly the items and amounts in
respect of which costs are ordered. A commissioner may, in terms of
Rule 39(3), make an
award of costs in respect of the legal fees of a
party that is represented in arbitration by a legal practitioner,
only if the
other parties to the arbitration were represented by a
legal practitioner. An award for costs in terms of sub-rule (3) is
limited
to an amount of R6 000.00 in respect of the first
day of an arbitration (including any arbitration concluded
in a single hearing) and R4 000.00 in respect of each additional day
of arbitration. These amounts are inclusive of VAT.
[17]
In this case, there is no indication that the arbitrator had regard
to the provisions
of Rule 39(2) which
requires him to make an award of costs in respect of the legal fees
of a party that is represented in arbitration
by a legal practitioner
only if the other parties to the arbitration were represented by a
legal practitioner. As such, it cannot
be said that the arbitrator
applied the requirement of law and fairness in arriving at a finding
that the applicant must pay the
costs of the arbitration.
[18]
The
arbitrator’s ruling in relation to the
two preliminary points raised is correct. There is, therefore, no
reason for this Court
to interfere with it.
With
regard to costs of this application, 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.
[19] In the
circumstances, I make the following order
Order
1.
The review application on
the arbitrator’s
ruling that the bargaining council lacks jurisdiction to adjudicate
the matter is dismissed;
2.
The costs order granted by the bargaining council
is set aside;
3.
No order as to costs is made in relation to the proceedings in this
Court.
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the applicant Mr
M. Bayi of Bayi Attorneys
For
the third respondent
Mr Preston of Cliffe
Dekker Hofmeyer Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Page
13 of the Index to Pleadings.
[3]
[2008] ZALAC 3
;
[2008]
9 BLLR 845
(LAC) at para 41.
[4]
[2000]
12 BLLR 1389
(LAC) at para 7.