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[2018] ZALCJHB 415
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Department of Correctional Services v GPSSBC and Others (JR625/17) [2018] ZALCJHB 415 (29 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, POLOKWANE
Not
Reportable
case
no:
JR
625/17
In the matter
between:
DEPARTMENT
OF CORRECTIONAL SERVICES
Applicant
and
THE
GPSSBC
First
Respondent
MASHOODA PATEL N.
O Second
Respondent
POPCRU obo
DLAMINI Third
Respondent
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
second 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 Dlamini pay progression
for the period 2015 amounts to an unfair
labour practice. He ordered
the applicant to pay Dlamini 3% of his salary dated from 2015.
Background facts
[2]
Mr Dlamini (Dlamini) is in the employ of the
applicant and holds a position of Correctional Services Security
Officer Grade 1. He
is on salary level 7. The performance of Dlamini
was assessed and he was rated as having achieved the average
performance rating,
which qualified him for a notch increment. The
applicant could not give effect to the results of the performance
appraisal as he
was already on the last notch of his salary scale.
[3]
Aggrieved thereby, Dlamini referred a dispute
alleging unfair labour practice. The second respondent arbitrated the
dispute and
ruled in Dlamini’s favour. The applicant was
aggrieved thereby. Owing to the fact that the review application was
three weeks
out of the prescribed time, the applicant launched the
present application with a prayer seeking condonation for the late
filing
of the application. The application is opposed by the third
respondent.
Grounds of Review
[4]
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
[5]
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
[1]
,
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…
[6]
I
fully agree with the above sentiments. In
casu
,
the third respondent condoned an agreement not to lead evidence. The
arbitration award records that “it was agreed between
the
parties that this matter will be disposed of by way of written
submissions.” This may have been a convenient manner to
deal
with the matter, but such an approach renders the award issued
susceptible to review which ultimately sacrifices the principle
of
speedy resolution of disputes.
[2]
In support of this view, the LAC in
Arends
and others v SALGBC and others
[3]
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…
[7]
The award records that as agreed between the
parties the dispute was to be dealt with by way of written
submissions.
[8]
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.
[9]
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 promotion.
In order to
answer this legal question an arbitrator must receive evidence and or
be furnished with a stated case.
[4]
[10]
For
all the above reasons, I come to the conclusion that the award is a
nullity and ought to be reviewed.
[11]
In
the results I make the following order:
Order
1.
The
award issued by the second respondent on 4 January 2017 under case
number GPBC 1258/2016 is hereby reviewed and set aside.
2.
The
dispute is remitted to the first respondent to be determined by
another panelist other than the second 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: Attorney Tlou
Makgamatha of M M Mitti Inc, Edenvale
[1]
Case number C233/14 delivered on 30 April 2015 per Rabkin- Naicker J
[2]
See also MEC: Public Works and infrastructure Free State v GPSSBC
and others Case number JR 857/2017 delivered on 8 May 2018.
[3]
[2015] 1 BLLR 23 (LAC)
[4]
See also NUM & Others v Hartebeestfontein Gold Mining Co Ltd
1986 (3) SA 53
(A) as to the meaning of a stated case.