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[2018] ZALCCT 37
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PTAWU obo Mantshi and Others v Commissioner for Conciliation, Mediation and Arbitration and Others (C839/15) [2018] ZALCCT 37 (17 October 2018)
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C839/15
In
the matter between:
PTAWU
obo MANTSHI & 86 OTHERS
Applicant
and
COMMISSIONER
FOR CONCILIATION, MEDIATION &
ARBITRATION
First
Respondent
COMMISSIONER
DANIEL PLESSIS (
N.O.
)
Second
Respondent
PIONEER
FOODS (PTY) LTD T/A ESSENTIAL FOODS
Third
Respondent
Heard
:
3 May 2018
Delivered
:
17 October 2018
Summary:
(Review – condonation of late filing of review – late
filing of transcript not condoned – standard expected of
unions
and employer organisations who litigate regularly – lower than
that of professionals, but higher than that of laypersons
who do not
regularly engage in proceedings under the LRA – reckless
imputations of corruption made in the course of review
application
against various parties – review application pursued
notwithstanding poor prospects – circumstances warranting
cost
award)
JUDGMENT
LAGRANGE
J
Introduction
[1]
This is an application to review an arbitration award in which the
arbitrator found that the dismissal of 87 employees for refusing
to
work on various Saturdays was substantively fair. The arbitrator also
found that the dismissal of shop stewards for the same
misconduct was
procedurally fair.
[2]
The award was handed down on 3 August 2015 and an attempted review
application was filed on 25 September 2015. Accordingly,
assuming it
was a proper review application, it was eleven days late. The
applicant union (‘PTAWU’) only applied for
condonation
for the delay after being ordered to do so by Tlhotlhalemaje J on 17
May 2017.
[3]
The record was available for uplifting on 11 November 2015 and ought
to have been transcribed by 9 February 2016 in terms of
clause 11.2.2
of the Labour Court Practice Manual. However, it was only nearly five
months later, on 4 July 2016, that the applicant
requested a 30 day
extension to file the record allegedly owing to the need to obtain
funds to do so, having also blamed the Labour
Court for not notifying
it that the record was available for transcribing. In October 2016,
the union wrote a further letter saying
that it could not commit the
resources to the transcription without the court granting it the
extension.
[4]
Initially, the matter came before the court on 17 May 2017 as a
result of an interlocutory application brought by the third
respondent to dismiss the review. The court found that the matter had
been withdrawn on account of failing to file the record timeously
and
gave the union leave to have matter re-enrolled once it corrected the
defects in the application and filed condonation
applications
for the late filing of the review application and the late filing of
the record of the proceedings. It was only as
a result of this
intervention that a supporting affidavit was eventually filed in June
2017 together with two condonation applications
for the initial
Condonation applications
[5]
Strictly speaking, review application was only properly launched when
the union filed its founding affidavit in July 2017. However,
if I
accept that the statement of case which it filed about a fortnight
after the expiry of the six week period for filing the
condonation
application was a
bona fide
attempt to launch the review
application, I am inclined to excuse the delay on the basis that
PTAWU had genuinely attempted to
initiate the review proceedings
within a relatively short time after the expiry of the six week
period,
albeit
using the incorrect procedure, though the poor
merits of the review, are a weighty consideration against granting
condonation.
On balance, the time delay is decisive and I am
willing to condone the late referral of the review.
[6]
The justification for a nine month delay in filing the record is much
more difficult to accept. Firstly, it is a very long delay.
The union
appears to fail to appreciate this, as it refers to it as a delay of
‘only’ nine months.
[7]
Secondly, the explanation is not satisfactory given the length of
time which elapsed. Mr Mgidi claims to have visited the court
‘on
many occasions’ to find out if the CCMA had delivered the
records, only to be told that nothing had been received.
This is
offered as an explanation for a delay between October 2015 and the
end of June 2016. It is vague and wholly inadequate
to explain such a
long period. It was only in July 2016, nearly a year after filing the
review application, that an unnamed clerk
of the court allegedly
checked the court file and told him the records had in fact been
received. It was then that the union supposedly
discovered that the
registrar had sent a fax notifying the union that the record had been
lodged by the CCMA to the wrong fax number,
but the union provides no
details of the incorrect number or the correct number. Evidence of
the allegedly erroneous transmission
sheet or the fax itself does not
appear in the record.
[8]
Mr Mgidi claims also that the clerk refused to allow him to make a
copy of this letter. However, nowhere does he attempt to
identify any
of the clerical staff he supposedly interacted with. Quite
extraordinarily, he never complained to the registrar or
the Judge
President about the alleged refusal to allow him to copy the
erroneous fax transmission. Inexplicably, he also failed
to mention
this alleged improper conduct when the union eventually filed a
request for an extension of time to file the record
as part of the
explanation for the delay on 4 July 2016. It took three months before
the allegation about the incorrect number
was recorded by the union,
for the first time, in a letter to Premier’s attorneys on 3
October 2016 PTAWU also does
not deal with whether or not it
received a CCMA filing notice in respect of the delivery of the
record under Rule 7A(2)(b). The
only notice of this kind in the
record is for the abandoned review application.
[9]
Even, if a request for extension of time was filed in July 2016 and
if I accept that it was reasonable for PTAWU to wait for
response
from the court before proceeding with the transcription, the delay
between October 2015 and July 2016 is wholly unsatisfactory
for such
a long period of time.
[10]
In
Toyota SA Motors (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others the Constitutional Court
stated:
[34] Toyota did not
challenge the proposition that the Labour Court had the power to
dismiss its review application if it unreasonably
delayed in pursuing
the review. It needs to be stressed that when assessing the
reasonableness of a delay , sight must not
be lost of the purpose of
the LRA. 30 This purpose was articulated by Ngcobo J in CUSA:
'The LRA introduces a
simple, quick, cheap and informal approach to the adjudication of
labour disputes. This alternative process
is intended to bring about
the expeditious resolution of labour disputes. These disputes, by
their very nature, require speedy
resolution. Any delay in resolving
a labour dispute could be detrimental not only to the workers who may
be without a source of
income pending the resolution of the dispute,
but it may, in the long run, have a detrimental effect on an employer
who may have
to reinstate workers after a number of years. The
benefit of arbitration over court adjudication has been shown in a
number
of international studies.'
[1]
[11]
When weighed together with merits, which are discussed below, I
am satisfied the review application should be dismissed
on account of
the applicant’s failure to prosecute the review by transcribing
and filing the record timeously, which unreasonably
delayed the
finalisation of the review application in the absence of an adequate
explanation for the whole period of that delay.
Even if I am wrong in
this regard, the application stands to be dismissed on the merits of
the review application in any event.
Background to the dispute
and arbitration
[12]
In the course of substantive wage negotiations in 2014, the
respondent company (‘Premier’) proposed restructuring
its
working week, in order to meet the market demand for bread on Mondays
and to avoid the problem of workers who did not want
to work more
than five hours on a Sunday. Previously, the working week began on
Sunday and ended on Friday. The new working week
would begin on
Monday and end on Saturday. The union had proposed a five-day working
week comprising of five, nine-hour days with
no work on Saturdays or
Sundays.
[13]
According to the un-contradicted evidence of the bakery manager, Mr
Jordaan, the union eventually accepted the company proposal
of the
working week running from Monday to Saturday.
[14]
Nevertheless, the applicant union, PTAWU, declared a dispute of
mutual interest over the change in the working week. Ultimately,
a
settlement agreement was concluded at the CCMA on 8 August 2014.
[15]
The essential terms of that agreement were:
15.1 an across-the-board
increase of R 502.28 effective on 1 August and payable on 25 August
2014;
15.2 a once-off payment
of R 430.00 at the end of August, and
15.3 an agreement that:
“
The working week
will commence on Monday at 6h00 and will be completed after 45 hours
of work. Any additional hours will be paid
as overtime as per BCEA”.
[16]
The parties also agreed that no changes to the agreement would be
binding unless reduced to writing and signed by both parties.
They
also consented to the agreement being made an arbitration award under
section 142A of the Labour Relations Act, 66 of 1995
(‘the
LRA’).
[17]
It must be mentioned that the normal working week was a 48 hour
working week, of which three hours were overtime work.
[18]
The ink on the agreement was barely dry when the union started to
articulate concerns about whether it was been implemented
properly.
The implementation of the agreement was then delayed until the week
ending Saturday 13 September 2014. According to Jordaan,
this request
by shop stewards was made because they wanted more time to discuss
the agreement as they were unable to get employees
to accept the
rescheduled working week which had been previously agreed upon. This
was also confirmed in a communication from the
union, which referred
to maintaining the old system until the new system was phased in.
However, until Mr Mgidi sent an email
to Premier on 20 August
2014, the union never suggested that there was a dispute about the
new working week schedule.
[19]
At a meeting between the company and the union on 4 September, the
union announced that it had a “new mandate”
to revert
back to the old work schedule in terms of which Sunday was the first
working day of the week. On 8 September the union
notified the
company that
“
All members of
PTAWU demanding the work schedule to be designed as the previous one
till such time union and the company reach agreement.
The previous
schedule was designed in such a way that workers off on the Saturday
and on Sunday work to top up the 40 hours including
the three hours
of overtime.
This arrangement will
start this coming week Saturday of 13 September 2014, going forward
and the company will utilise the casuals
or the volunteers on the
Saturday as before.”
[20]
Evidence was led that the company policy on general conditions of
service stated that:
“
The employees’
hours of work are determined by the operating unit where he or she
ordinarily reports for duty. Hours of work
may change in the future
depending on the demands of the company business as working hours,
times and days differ from one operating
area to another.”
[21]
The company then issued a notice to all employees reaffirming terms
of the original agreement and pointing out that the new
work schedule
was part of a package deal and should be adhered to by workers.
[22]
As noted in paragraph 5 of the arbitration award, union members did
not report for work on Saturday 13 September, which resulted
in them
receiving written warnings. They also did not attend work on 20
September for which a second warning was issued. Thereafter,
a
general memorandum was issued on Monday 22 September demanding that
they abide by the settlement agreement in the CCMA. In addition,
on
Wednesday 24 September, a final notice was issued to warn them that
if they did not report for duty the following Saturday (27
September)
they would face disciplinary steps. When they did not comply with
that notice, disciplinary hearings were held and they
were ultimately
dismissed for their refusal to work on Saturdays.
The arbitrator’s
findings
[23]
In summary, the key findings of the arbitrator were that:
23.1 Although the real
reason for the employees not working on Saturdays appeared to be in
order to persuade the employer to revert
to the previous working week
and therefore might have been construed as strike action, the
employer treated it as misconduct for
failing to report on duty. The
union did not argue that their conduct amounted to an unprotected
strike, even though it did refer
a mutual interest dispute to the
CCMA on 29 September 2014 over the issue.
23.2 None of the
employees who testified linked their absence from work to a demand
not to work on Saturdays. Consequently, the
arbitrator could not
conclude that their absence amounted to a strike. He further noted
that it was only in the union’s closing
arguments that certain
reasons for their absence were advanced, but these had not been
mentioned at the commencement of the arbitration
and were not put to
any of the employer’s witnesses. Accordingly, he disregarded
them. He emphasised the importance of not
putting versions to
Premier’s witnesses.
23.3 He found that the
applicant’s witnesses were unreliable. Mr Dwebe changed his
version more than twice. Whereas, he had
no difficulty answering
questions in examination-in-chief, he repeatedly asked for questions
to be repeated under cross-examination.
Nevertheless, in the course
of his evidence, he did confirm that according to his understanding
of the settlement agreement of
08 August, it had been agreed that the
working week would start on Monday and end on Saturday. Another
of the applicant’s
witnesses, Mr Mtholo, was unable to explain
why attendance records showed him being absent on 13 and 20 September
if he was at
work. He also failed to put his version to employer’s
witnesses and the medical certificates he tendered were insufficient.
The credibility of Mr Kwananzi’s version was tainted by his
dishonesty about his ability to understand English. Mr Mlotya
was
unable to prove that he was on leave on 20 September as he claimed.
He also corroborated the employer’s version of Saturdays
being
a normal working day. On the record, it appears that his version was
never put to any of the employer’s witnesses and
that in any
event he could not explain his absence on 13 and 27 September.
23.4 Despite the defects
in their testimony, three of the union’s witnesses confirmed
that they were aware of the Saturday
shift. Accordingly, the
arbitrator found the claim that there was uncertainty about it was
without merit.
23.5 The appeal submitted
by the union simply requested an appeal and contained a list of names
without stating grounds for appeal.
In the arbitrator’s
view, this was not a proper appeal. Thus a failure by Premier to
consider it was not unfair.
23.6 In relation to the
procedural challenge pertaining to the disciplinary proceedings of
the shop stewards, PTAWU claimed there
was no consultation with the
union about the disciplining of shop stewards prior to them being
advised to attend disciplinary enquiries
as there should have been.
The arbitrator found there nonetheless was consultation on the issue
and it was the shop stewards’
choice not to attend their
enquiries. In circumstances where they were not been singled out for
discipline and were disciplined
for the same misconduct as all the
other members, the arbitrator found that they were not subjected to
an unfair procedure despite
the procedural irregularity regarding
consultation over impending disciplinary action against them.
23.7 In relation to
PTAWU’s submission that, it was not proven workers had refused
to work on Saturdays, they did not deny
that they had refused to work
and did not provide any reasonable explanation for not doing so.
Accordingly, he could not infer
that their absence was not wilful or
authorised and therefore it amounted to misconduct. He found that not
only did they not want
to work on Saturdays, but were probably told
by shop stewards that they should not.
23.8 The arbitrator
concluded that it was more probable that PTAWU’s members
understood the agreement of 8 August 2014 and
decided not to comply
with it. He noted in that regard that shop stewards were present at
the CCMA proceedings where the agreement
was concluded and, whatever
doubts may have existed initially, by Saturday 27 September, they
could have been no doubt the consequences
of not attending work that
day would be. Their absence amounted to a clear challenge to
Premier’s authority.
23.9 Further, he
concluded that given the warnings issued and the lack of acceptable
explanation for their absence on the Saturdays
in question, there
could be little doubt that their absence constituted a challenge to
the employer’s authority and was contrary
to the agreement and
the obligation to work the new normal hours.
[24]
The union’s main contention concerning the substantive fairness
of the dismissals was that, the agreement concluded in
the CCMA did
not include an agreement on work schedules, namely
when
the 45
hours ordinary working time would be performed. It is important to
mention though that, by the time the arbitration got
underway, there
had already been a determination on the interpretation of the
agreement by another Commissioner. The upshot of
that interpretation
dispute was that the Commissioner found that the working week ran
from Monday to Saturday, on a proper interpretation
of the agreement.
In March 2015, the union launched a review of the award, but
never pursued that application further. Accordingly,
that review
application had the status of a dispute which has been withdrawn at
the time this review application was heard.
[25]
It is worth noting, that in the previous review application PTAWU
accused the Commissioner of bias, corruption and impartiality.
The
Commissioner remarked that these accusations amounted to contempt,
though she did not pursue a contempt application in the
Labour Court.
I also note that in its heads of argument in this matter the
applicant hints at a possible tampering with the record
by the
arbitrator. In keeping with PTAWU’s approach of attributing
malicious intent to third parties, PTAWU recklessly suggests
that the
alleged failure to send notice of the delivery of the record by the
CCMA to the registrar was a possible act of corruption
on the part of
a clerk at the court, without a shred of evidence to support such an
allegation, other than its own claim, the notice
was not sent to the
right fax number.
[26]
While PTAWU was quick to find fault with the court administration,
its own efforts in pursuing the review application left
much to be
desired. This led to Thlotlhalemaje J postponing the review so the
union could get its application in order. Once
it had remedied
all the shortcomings, it made no effort to get the voluminous papers
in the application in order, and it was the
third respondent’s
attorneys who eventually did this. Such a casual approach to
providing orderly papers is not only disrespectful
to the court, but
simply adds to the time the court needs to spend assimilating the
material to be considered, apart from constituting
non-compliance
with the rules. Further, because of PTAWU’s delays, two
condonation applications had to be brought. I return
to this issue
when dealing with costs.
[27]
A degree of latitude in drafting pleadings or heads of argument, is
obviously allowed to laypersons who litigate in person.
They will
usually have no previous experience of review proceedings and may
also be hampered by language and literacy problems.
However, unions
and employer organisations who engage in this type of proceeding
regularly are less easily excused when they conduct
litigation in a
haphazard or ramshackle manner with scant regards to the rules of
court which are designed to make litigation an
orderly process.
Employer organisation and unions hold themselves out as able to
represent their members and should at least
try to ensure they follow
the rules of court and the practice manual in the conduct of
litigation. Members are entitled to expect
their representatives to
have a basic level of competence in such matters. The court does not
expect them to conduct themselves
like attorneys or counsel, of whom
normal professional standards are expected, but it is reasonable to
require them to conduct
matters in accordance with a minimum standard
one can expect of parties who regularly use certain procedures in the
Labour Court
and arbitration forums: that is, the representatives
charged with such work will have read the court rules and practice
manual,
familiarised themselves with time limits and the requirements
of proper service of court process and acted promptly in prosecuting
their members’ claims. Such matters only require some basic
time management and case file administration competency: advanced
legal skills are not needed to act in accordance with those
procedures. Officials and organisers also should acquire a basic
knowledge
of the essential elements of a particular cause of action
before attempting to draft papers for court, whether those are
affidavits
or statements of claim. Even in the absence of having a
basic textbook there are numerous judgments online that can be
accessed
free of charge, which set out key issues and principles
applicable to adjudication of different types of disputes. The LRA
itself
also sets out principles of fairness governing the most common
disputes which provide a basic framework for setting out a case.
When
rules are not complied with the work of other affected parties,
including the court, is increased and, in the case of opposing
parties, so are the costs.
Grounds of review and
evaluation
The correct approach to
review applications
[28]
Before addressing the grounds or review, some observations on the
union’s drafting and preparation of the review application
need
to be mentioned. For the most part, the founding affidavit in the
review application does not identify or articulate clearly
any
recognisable grounds of review under section 145 or a review based on
the tenets of reasonableness. At best it articulates
grounds of
appeal. In addition, the review application was accompanied by
swathes of affidavits by dismissed employees attesting
to their
attendance at work on the Saturdays in question, or trying to explain
their absence. These affidavits were not part of
the evidence before
the arbitrator. The union does its members a disservice by filing
such affidavits, as it might give the members
a false and misleading
impression that the court is allowed to consider additional evidence
which was not before the arbitrator.
[29]
Further,
the union’s heads of argument appear to add grounds of
complaint which are not contained in the affidavits and which
do not
emanate from any grounds of review, in so far as those can be clearly
identified. It is not permissible to add grounds of
review to the
grounds pleaded in the affidavits once pleadings have closed
[2]
,
except with special leave of the court.
[30]
I am inclined to dismiss the review application simply on the basis
that the grounds of review are insufficiently pleaded to
make out a
competent case of review on PTAWU’s own papers alone. Since the
inception of the LRA, it has never been enough
for an applicant in
review proceedings to simply set out a list of complaints about an
arbitrator’s handling of evidence
and then claim on the basis
of those alleged flaws that an award is reviewable on grounds of
reasonableness. It is even less appropriate
now in the light of the
current jurisprudence which requires an applicant on review to
overcome significant hurdles. A review application
is not simply an
opportunity to rehash or supplement the case which was before the
arbitrator, as the union appears to have tried
to do on this
occasion. The key judgments setting out the test of review are not
recent and by now should have been assimilated
by union and employer
organisation fully agree with the representatives.
[31]
In this case, the following comments by Van Niekerk J in
Mooki
v CCMA and Others
(JR772/15) [2017] ZALCJHB 173 (3
February 2017)
are apposite:
[9] In the present
instance, the applicant’s grounds for review are not cast in
terms that reflect the enquiry that the court
must undertake. In
particular, the grounds articulated both in the founding and
supplementary affidavits do not make out a case
to the effect that
the outcome of the proceedings under review was one that fell outside
of the band of decisions to which a reasonable
decision-maker could
come on the available material.
It is not sufficient, as the
applicant has done, to record a litany of complaints that amount to
no more than assertions that the
commissioner came to conclusions
that were wrong. Commissioners are allowed to be wrong; the review
test affords them this latitude,
provided that the outcome is not
compromised in the sense that is an unreasonable one
. The
two-stage test referred to above preserves the all-important
distinction between appeals and reviews. Further, in an application
such as the present, the basis on which the outcome of arbitration
proceedings subject to review is alleged to be unreasonable
must be
specifically pleaded - a failure to do so reflects a failure to
establish a cause of action. The applicant’s failure
to frame
his grounds for review on the proper basis and to rely in piecemeal
fashion on a series of alleged misdirections, in my
view, is in
itself a reason to dismiss the present application.
(emphasis
added)
[32]
The
two stage test referred to in that judgment should be familiar to
anyone who regularly deals with reviews of arbitration awards.
It is
summarised in the LAC judgment of
Head
of Dept. of Education v Mofokeng
[3]
:
[30] 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 (Congress of SA Trade Unions as Amicus Curiae)
and this court in
Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation,
Mediation & Arbitration & 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.
…
[33] 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.
[4]
Merits of the application
[33]
For the most part, the complaints raised by the union in its founding
document are an attempt to argue the merits of the case
afresh and do
not deal with the arbitrator’s alleged failings. Nonetheless,
there are a couple of instances where the arbitrator’s
own
alleged shortcomings are stated. I will deal with these first. These
are the closest the union comes to articulating identifiable
grounds
of review. It should also be mentioned that some complaints advanced
in the original ‘statement of case’ were
not included in
the founding affidavit that was eventually filed on 15 June 2017.
Accordingly, those do not have to be addressed.
Complaints about the
conduct of the arbitrator in the course of arbitration proceedings
Aggressive behaviour
towards the applicant during the arbitration
[34]
The union
claims that the arbitrator “became aggressive towards the
applicant while in the middle of the arbitration proceedings
giving
the impression of favouring the third respondent”, which it
claims amounted to misconduct. The applicant goes further
and
contends that this alleged misconduct “may give an impression
that she received a bribe from the third respondent which
the
applicant know it is very hard to prove bribe all over the world.”
The applicant did not cite any references to the transcript
in
support of the alleged aggressive behaviour either in its affidavit
or in the heads of argument it submitted. Having read the
transcript
of the record, it is not at all obvious what the applicant might have
been referring to, but in any event, it is the
applicant’s
responsibility to identify those parts of the record which support
its contentions.
[5]
It is not
for the court to try and guess what a party might be relying on to
support its claim. Accordingly, the union has failed
to substantiate
this ground.
[35]
Just as
allegations of bribery are hard to prove, they should also not be
lightly made. One cannot help but notice that the applicant
appears
inclined to freely cast aspersions against the character of a number
of unconnected individuals (the arbitrator in this
matter, the
arbitrator in the interpretation dispute and an unnamed clerk of the
court) in the course of its litigation in this
dispute. Other than
the applicant’s own suspicions, there is absolutely no evidence
advanced to support these serious allegations
of misconduct. In
relation to the arbitrator, no court is going to seriously entertain
subjective speculations in place of a reasonable
apprehension of bias
based on evidence.
[6]
In the
circumstances, advancing such a ground is nothing short of vexatious
conduct on the part of the union.
[36]
All the other discernible complaints about the award concern the
arbitrator’s alleged shortcomings in evaluating the
evidence.
These are discussed below.
Analysis of reasoning
of the arbitrator on procedural and substantive merits
Failure to consider the
collective agreement
[37]
The union’s first complaint in this regard is that, the
arbitrator failed to appreciate that Premier was obliged to consult
over the new work schedule before imposing it in terms of the
collective agreement. Clause 6.1.7 of the recognition agreement
between PTAWU and Premier stated that the parties would engage with
each other in consultation on the scheduling of working hours,
shifts, mealtimes and rest periods. The arbitrator found that the
union had in fact
agreed
on the new working arrangement with
Premier. There is ample evidence on the record to support such a
conclusion, which also necessarily
provide support for an inference
to be drawn that in fact Premier had gone further than merely
consulting on the issue. The arbitrator’s
conclusion on the
evidence in this regard cannot be said to be one that no reasonable
arbitrator could have reached.
[38]
Secondly, PTAWU contends the arbitrator ignored that clause 8.16 of
the agreement provides that there should be consultation
before
charges are laid against a shop steward. In his award, the arbitrator
noted that there was a dispute about whether or not
the respondent
had consulted with the union regarding its intention to take
disciplinary action against the shop stewards. He noted
also that it
was common cause that a separate hearing was organized for the shop
stewards and they did not attend. In his finding
on this issue, the
arbitrator accepted that there had not been consultation with the
union prior to informing the shop stewards
of the disciplinary
hearing. On the other hand, he balanced this irregularity against the
fact that the evidence showed that they
did not attend the hearing
despite knowing that a request for respondent had been refused and
there was no reason for treating
the shop stewards differently from
the other employees as they were not been singled out for
disciplinary action as shop stewards
but as part of the entire group
which did not report for work on Saturdays. In light of that, he
decided that compensation of the
shop stewards for any procedural
irregularity would not be appropriate.
[39]
I agree, it is possible that another arbitrator might have come to a
different conclusion, but that does not mean that the
arbitrator’s
findings are one that no reasonable arbitrator could have made on the
same evidence. Accordingly, his findings
in respect of this issue
must stand.
Failure to consider the
Union was engaged in a protected strike on the issue of the work
schedule
[40]
The only mutual interest dispute that could possibly have provided
the basis for this contention was referred for conciliation
on 29
September 2014 after the dismissals had taken place. Accordingly, as
a matter of logic, that dispute referral could not have
served to
convert the prior failure to attend work on Saturdays in early
September into protected strike action. Moreover, the
very contention
that the dismissed members were engaged in protected strike action is
completely at odds with their own justification
that they failed to
attend work on most days for a variety of different personal reasons.
There is simply no factual basis for
the arbitrator to have concluded
that a protected strike was in progress. Moreover, if the workers
believed that was the reason
they were dismissed they should not have
submitted their dismissal dispute to arbitration, but should have
referred it to the Labour
Court.
The arbitrator failed to
consider the sanctions recommended in the disciplinary code
[41]
The disciplinary code recommended three written warnings prior to
dismissal for a refusal to carry out a reasonable instruction.
The
evidence was that the workers were issued with written warnings for
the first two Saturdays that they did not report for work
and were
warned in advance before the third Saturday that they would face
disciplinary action if they did not attend. Consequently,
their
non-attendance on the subsequent Saturday was despite prior warning
of disciplinary consequences. The disciplinary code itself
provided
that sanctions could be varied according to extenuating and
mitigating factors and the merits of each particular case.
The fact
that the workers were given prior warning of the intention to take
disciplinary action if they again refused to comply
with the
requirement to work Saturday prominently emphasized the defiant
character nature of their non-compliance and provides
support for a
justifiable departure from the code on the basis of that being
an aggravating factor. In a situation where
two warnings had already
been issued and employees were warned in advance of disciplinary
action if they failed to comply with
the same instruction again, I
cannot say that it was unreasonable of the arbitrator not to apply
the disciplinary code rigidly.
Failure to consider the
description of the previous warnings
[42]
The union seems to argue that the arbitrator failed to appreciate
that the two previous written warnings were for ‘short
time’
work, and not for a refusal to obey a lawful instruction. It is true
that the warnings were not identical to the reason
for dismissal, but
the substance of the warnings was that, the workers had not worked
the hours they were supposed to work. Moreover,
there was ample
evidence that they could have been in no doubt what was expected of
them when they were warned that disciplinary
steps would be taken if
they failed to report for work on the third successive Saturday. As
mentioned above, their failure to report
for work in the face of
advance warning of disciplinary action, having already received two
previous warnings for not working on
Saturdays as they were supposed
to provides more than sufficient support for an inference that
further attempts at corrective disciplinary
action would serve little
purpose. Under such circumstances, the arbitrator cannot be
criticized for treating their failure to
report for work on the third
Saturday as yet another instance of the same misconduct, which
further corrective measures were unlikely
to reverse. As such, the
outcome is one that was rationally justified on the evidence before
him.
Costs
[43]
The union has conducted this review application with limited regard
to the rules of court and has rectified matters only when
the court
has ordered it to do so. I accept, it does not have the same
resources to pay legal professionals as Premier does, but
as
mentioned above, it is at least expected to follow the essential
procedural steps for conducting litigation of this nature as
set out
in the Labour Court Rules and the Practice Manual. It should not wait
until ordered to do so by the court. It also made
reckless and
serious allegations, of corruption, based solely on its own
suspicions and in so doing added a vexatious element to
its
prosecution of this review.
[44]
Secondly, despite a settlement of the dispute about the rearrangement
of the working week, PTAWU and its members did all they
could to try
and stop its implementation, which ultimately led to the dismissals
in this matter. Despite the poor merits of the
review they persisted
with it,
albeit
in a ramshackle way. The third respondent was
compelled to resist this review application and the review of the
interpretation
and application award. The review application would
never have been concluded if Premier had not launched the Rule 11
application.
[45]
Although
this court frequently accepts that because parties are in an ongoing
relationship, a cost award ought not to be made, that
is not the only
consideration. A party that has a very poor case but still pursues it
and puts the other side to considerable expense,
in my view cannot
expect to fall back on a lack of resources and an ongoing
relationship to avoid having to make any payment for
the unnecessary
costs it has caused the other side to incur.
[7]
Just because a party can pursue a matter beyond the arbitration stage
in a case like this by commencing review proceedings,
does not mean
it should do so irrespective of the merits of the review.
[46]
As a mark of the court’s disapproval of the manner in which it
has conducted this matter and the poor merits of the application,
which PTAWU should have seriously considered before embarking on this
review, in my view the union should at least pay a significant
portion of the respondent’s costs as matter of law and
fairness. .
Order
[1] The late filling of
the review application is condoned.
[2] The condonation
application for the late filing of the record of the arbitration
proceedings is dismissed.
[3] The review
application is dismissed on account of the applicant’s
unreasonable delay in prosecuting the review application.
[4] The applicant must
pay half the third respondent’s costs of opposing the review
application and the condonation applications.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
A T
Mgidi of PTAWU
RESPONDENT:
J Whyte of Norton Rose Fulbright
[1]
(2016)
37
ILJ
313
(CC) at 326-7
[2]
Comtech
(Pty) Ltd v Molony NO and Others
(DA12/05)
[2007] ZALAC 40
(21 December 2007)
at paragraphs [15] to [19],in which the LAC emphasised the
importance of complying with Rule 7A(2)(c) and the principle that
a
party must lay the factual basis for a review in their affidavits.
[3]
(2015) 36
ILJ
2802 (LAC)
[4]
At 2810-3
[5]
See Rule 18(2)(b) of the Labour Court rules dealing with heads of
argument which states:
(2) The heads of
argument must-
(a) …;
(b) in its first
reference to a factual allegation contain a page and paragraph or
line reference to the record or bundle of documents;
[6]
In
Mbana
v Shepstone & Wylie
(2015) 36
ILJ
1805 (CC), the constitutional court described the threshold for
establishing bias as follows , at 1815-6:
The
test, however, in claims of actual or perceived bias arising from
both trial court conduct and judicial association is the
same: a
litigant must show that 'a reasonable, objective and informed person
would, on the correct facts, reasonably apprehend
bias'. In
other words, a litigant must show a reasonable apprehension of bias
to succeed.
[7]
See e.g
Makuse
v Commission for Conciliation, Mediation & Arbitration &
others
(2016) 37
ILJ
163
(LC) and
Beaurain
v Martin NO & others
(2) (2014) 35
ILJ
2454
(LC)