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 412
|
|
Department of Education: Limpopo Province v Molepo and Others (JR 1012/18) [2018] ZALCJHB 412 (29 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not
Reportable
Case
No:
JR
1012/18
In the matter
between:
DEPARTMENT
OF EDUCATION: LIMPOPO PROVINCE
Applicant
and
L
MOLEPO AND 83 OTHERS
First
Respondent
EDUCATION LABOUR
RELATIONS COUNCIL
Second Respondent
T PHAHLANE N.
O
Third Respondents
Heard
:
29 November 2018
Delivered
:
29 November 2018
Summary:
An
opposed review application – where evidence was not led to show
the alleged unfair conduct on the part of an employer,
it is not
possible to determine the question of fairness. In the absence of
oral evidence, there must be a stated case absence
of which, there is
no arbitration. An award issued without hearing evidence is a nullity
and it is susceptible to review. Held
(1): The award issued by the
third respondent is hereby reviewed and set aside. Held (2): The
dispute is remitted to the second
respondent to be determined by
another arbitrator other than the third respondent. Held (3) No order
as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1] This is an
opposed review application. The applicant attacks the award on the
grounds that it is not one a reasonable arbitrator
may arrive at. The
third respondent found that by failing to pay the applicants (first
respondents) the incentive amounts to an
unfair labour practice. He
ordered the applicant to pay the incentives from the day of
implementation.
Background facts
[2]
On or about 15 December 2007, the then
Minister of Education Honourable Naledi Pandor acting in terms of
section 4 of the Employment
of Educators Act, 1998 (EEA) published a
notice in the Government Notice 30678 certain conditions of service
for educators. Measures
introduced were to provide for payment of
incentives to academically qualified educators, if they meet certain
prescribed criteria.
Certain posts at a school would be identified to
be eligible for the incentives in accordance with the set criteria.
[3]
On or about 12 February 2016, the Minister
of Basic Education Honourable Angie Motshekga, acting in terms of
section 4 of the EEA,
published a notice in the Government Notice
39684, seeking to consolidate the terms and conditions of employment
of educators.
The notice was dubbed Personnel Administrative Measures
(PAM). PAM sought to expand on the measures published earlier.
[4]
On 13 April 2017, the applicant through its
head of the department, Mr. Mutheiwana issued a departmental
circular
[1]
.
In terms of the circular, a determination was made that the posts
will be Quintile 1 Schools and the weighted distance will be
140
kilometers and more. The first respondents contended that the
determination excludes them from the incentive scheme. Resultantly,
on 7 June 2017, they collectively referred a dispute of alleged
unfair labour practice in relation to the provision of benefits.
On
14 June 2017, conciliation was attempted, but the dispute remained
unresolved.
[5]
The dispute was then referred to
arbitration. On 10 July 2017, parties held a pre-arbitration meeting.
The minutes produced recorded
that the issue in dispute was whether
the first respondents were entitled to a rural allowance in terms of
the first published
notice; whether the schools are quintile 1, and
fall within the weighting distance as per the published notice and
whether all
the first respondents are on REQV13 and above. Further
the parties recorded that the first respondents had the duty to begin
and
the parties shall call seven witnesses, five to be called by the
first respondents and two to be called by the applicant.
[6]
At arbitration, the parties and the third
respondent agreed that after orally stating their respective cases,
they shall submit
written argument whereafter the third respondent
would issue an award. On 7 May 2018, the third respondent published
his award.
The applicant was aggrieved thereby and launched the
present application.
Grounds of Review
[7]
The
applicant raised a number of review grounds, which given the view I
take at the end might not be necessary to tabulate in this
judgment.
Evaluation
[8]
At
the commencement of argument, I enquired from both counsel as to
whether a proper arbitration was conducted. To my mind, this
award
was issued without a proper arbitration process and as such a
nullity. In
SASSA v Nehawu and
others
[2]
,
the Labour Court had the following to
say:
[5]
I fail to comprehend how a dispute which hinges on the fairness of
the conduct of an employer can be decided (in the absence
of a stated
case) without parties giving oral evidence. A decision made in such a
way means that the Labour Court must answer all
the following
questions in the negative…
[6]
The process used in the arbitration proceedings simply does not allow
for a due and proper arbitration of the dispute. The Commissioner
based her findings on the written submissions of the parties…
[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
the parties that no oral evidence be led unless
such a stated case
has been agreed, and on which they may draw legal conclusions…
[9]
I
fully agree with the above sentiments. In
casu
,
the third respondent condoned an agreement not to lead evidence. This
may have been a convenient solution to the difficulty apparently
faced by the respondents as some of them were absent, but such an
approach renders the award issued susceptible to review which
ultimately sacrifices the principle of speedy resolution of
disputes.
[3]
In support of this view, the LAC in
Arends
and others v SALGBC and others
[4]
said the following:
[11]
The decision of the representatives of the parties to limit
themselves to providing the arbitrator
with a verbal account of the
background relevant to the conclusion of the collective agreement, as
the basis for the parties arguing
the matter without leading oral
testimony, was ill-advised…
[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 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…The stated case must set out
agreed facts, not assumptions…
[10]
The
transcript in this matter reveals the following:
ARBITRATOR
:
…Towards reaching that goal the parties have then agreed that
they will submit what we call written argument…The
applicant,
through your representative will then present a state case and then
the respondent will do the same. We call that opening
and thereafter
we will agree…written submissions…I will then have
fourteen days to issue the outcome, okay.
[5]
days
[11]
The
approach above is neither prudent nor correct. The LAC in
Arends
supra
advised thus:
[16]
…Such statement shall set forth the facts agreed upon, the
questions of law in dispute between the parties, their contentions
thereon and shall be divided into consecutively numbered paragraphs.
The parties must annex to the statement copies of documents
necessary
to enable the Court to decide upon such questions.
[17]
Practitioners must follow these rudimentary elements of good practice
when intending to proceed on the basis of a stated case.
[12]
Therefore,
the third respondent failed to arbitrate the dispute. In terms of
section 186 (2) an unfair labour practice means any
unfair act or
omission that arises between an employer and an employee involving
unfair conduct by the employer relating to the
provisions of benefits
to an employee. In order to answer this legal question an arbitrator
must receive evidence and or be furnished
with a stated case.
[6]
[13]
For
all the above reasons, I come to the conclusion that the award is a
nullity and ought to be reviewed.
[14]
In
the results I make the following order:
Order
1.
The
award issued by the third respondent on 7 May 2018 under case number
PSES 188-17/18 LP is hereby reviewed and set aside.
2.
The
dispute is remitted to the second respondent to be determined by
another panelist other than the third respondent.
3.
No order as to costs.
GN Moshoana
Judge of
the Labour Court of South Africa
.
Appearances:
For the Applicant:
Adv T T Tshabalala.
Instructed by:
State Attorney, Johannesburg.
For the
1
st
Respondents: Adv L G P Ledwaba.
Instructed
by:
Hlahla Attorneys, Pretoria.
[1]
Circular No. 71 of 2017.
[2]
Case number C233/14 delivered on 30 April 2015 per Rabkin- Naicker J
[3]
See also MEC: Public Works and infrastructure Free State v GPSSBC
and others Case number JR 857/2017 delivered on 8 May 2018.
[4]
[2015] 1 BLLR 23
(LAC)
[5]
Page 15 paginated Arbitration record.
[6]
See also NUM & Others v Hartebeestfontein Gold Mining Co Ltd
1986 (3) SA 53
(A) as to the meaning of a stated case.