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[2018] ZALCPE 21
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Minister of the Department of Correctional Services v Mpiko NO and Others (PR215/17) [2018] ZALCPE 21; (2018) 39 ILJ 2038 (LC) (24 April 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
Case no: PR215/17
In the matter between:
MINISTER OF THE
DEPARTMENT OF
CORRECTIONAL
SERVICES
Applicant
and
ARBITRATOR SOLOMZI
MPIKO
NO
First
Respondent
THE GENERAL PUBLIC
SERVICE SECTORAL
BARGAINING
COUNCIL
Second
Respondent
HENDRIK LOURENS
VOS
Third
Respondent
Heard:
19 April 2018
Delivered:
24 April 2018
JUDGMENT
MAHOSI. J
Introduction
[1]
This is an application brought by the applicant (the Department) in
terms of section 145 of the Labour Relations Act
[1]
(LRA) for an order to review and set aside a ruling (the ruling)
issued by the first respondent (the arbitrator) under the auspices
of
the second respondent (the bargaining council) dated 10 July 2017,
under case number GPBC1981-2013 in terms of which the arbitrator
dismissed the Department’s point
in
limine
.
[2] The issue is whether
it is just and equitable for this Court to review the decision or
ruling made by the arbitrator during
the arbitration proceedings
before the issue in dispute has been finally determined.
Background
[3] This matter concerns
an unfair dismissal dispute as referred to the bargaining council by
the third respondent (Mr Vos), who
was dismissed by the Department on
6 August 2013 for incapacity.
[4]
The matter has a long and convoluted history in that two arbitration
awards have already been issued in respect of Mr Vos’
unfair
dismissal claim, both of which have been set aside by this Court. The
first award dated 17 March 2014 was set aside by an
order dated 3
June 2015 issued by Van Niekerk J.
[2]
The second award dated 19 August 2015 was set aside by Golden AJ in
her judgment dated 8 December 2016 in terms of which the following
was ordered:
‘
(a)
The arbitration award under case number GPBC 1981/2013 is hereby
reviewed and set aside
(b) The matter is
remitted to the second respondent for a hearing
de
novo
.
(c)
There is no order as to costs.’
[3]
[5] Subsequently, the
matter was remitted to the bargaining council for arbitration
de
novo
as per Golden AJ’s judgment and the arbitration was
held on 1 June 2017. Preceding the arbitration proceedings, the
parties
participated in a pre-arbitration process in term of which
the Department delivered a pre-arbitration notice on 17 May 2017 and
Mr Vos replied to it on 17 May 2017. In his pre-arbitration notice,
Mr Vos claimed reinstatement.
[6] At the arbitration
proceedings conducted on 1 June 2017, the Department raised a
preliminary objection in terms of which it
contended that this Court
had already determined and disposed of the issue of Mr Vos’
reinstatement. The Department accordingly
contended that Mr Vos was
barred from re-opening this issue as it has been pronounced upon by
this Court.
[7] After the
Department’s legal representative had addressed the arbitrator
orally by way of background regarding the preliminary
objection, it
was agreed that the preliminary point would be decided pursuant to
the filing of written submissions by the respective
parties which was
duly done. The arbitrator subsequently issued his ruling in terms of
which he dismissed the Department’s
point in
limine
.
The ruling
[8] In his ruling, the
arbitrator recorded that the issue before him was whether the
bargaining council had jurisdiction to entertain
the merits of Mr.
Vos’ unfair dismissal claim.
[9]
The preliminary point raised by the Department was that two issues
which Mr Vos sought to place before the arbitrator to determine
had
already been a subject of a judicial decision by the Labour Court in
a judgment delivered by Golden AJ on 8 December 2016 and
are
accordingly correctly to be regarded in law as being
res
judicata.
The two issues were whether
Mr Vos was entitled to claim reinstatement where the sole reason was
to place him in a position to apply
for retirement based on
ill-health and whether he was entitled to claim back-pay.
[10] Mr. Vos opposed the
Department’s preliminary point and made the following
submissions:
‘
(4)
Unfair dismissal disputes lie exclusively within the jurisdiction of
either the CCMA or Bargaining Councils (as the case may
be). The
Labour court has no power to adjudicate disputes alleging unfair
dismissal. The Labour Court can no more entertain an
unfair dismissal
dispute referred to it, than it can indirectly adjudicate on an
unfair dismissal dispute in the manner contended
for by the
Respondent. In effect the Respondent seeks to confer upon the Labour
Court a power and jurisdiction which it does not
have. To contend
that the Labour Court has disposed of the Applicant’s unfair
dismissal dispute simply because it overturned
an Arbitration Award
on review (a power which the Labour Court does have) does not mean
that the Labour Court could supplant the
jurisdiction of an
accredited Council. This is an extrapolation which cannot prevail and
should certainly not be allowed to prevail.
(5) In reviewing the
Arbitrator’s award, all the Labour Court did was to set aside
the award. To the extent that the respondent
seeks to rely on
observations made by the presiding judge as to the value or merit of
the applicant’s unfair dismissal dispute,
such observations
must, it is respectfully submitted, be regarded as having been made
obiter
. This is because the Labour Court would not have the
power to determine the fairness or otherwise of applicant’s
dismissal,
this being a prerogative vesting in an arbitrator. For
this reason, the Court’s reasoning set out in paragraph 40 to
42 of
the judgment, must be regarded as
obiter
.’
[11] In his analysis the
arbitrator stated as follows:
‘
15.
Both parties made written submissions which I have considered in my
ruling. I will not read (
sic)
what the parties placed before me. As much as this matter has dragged
I would not agree that it should then be decided anyhow as
a matter
of complying with the LRA’s “ethos”.
16. Whether or not the LC
already made findings and whether or not such findings were to be
regarded as
obiter
, is not for me as the Arbitrator, to decide
but, the Labour Appeal Court (“the LAC”). The Applicant
submitted that
the matter was
res judicata
and explained that
to mean that the LC already made a judgment in the same matter
between the same parties. I find no reason why
the LC could be
interpreted as having contradicted itself by making a determination
on the dispute referred, and yet ordered the
matter to be heard by
the GPSSBC however, if there is such contradiction it is not for me
but the LAC to so decide.
17. I am satisfied that
the LC gave a clear direction as to what should happen with the
dispute, which is to refer it to the GPSSBC
for determination by an
Arbitrator.
18. In the light of the
parties’ submissions and arguments presented to me I cannot
conclude that the GPSSBC does not have
jurisdiction to hear the
dispute in question.”
[12] It was on the basis
of the above reasons that the arbitrator dismissed the Department’s
point
in limine
. Dissatisfied with the arbitrator’s
ruling, the Department brought this application.
Grounds of Review
[13] The Department is
challenging the arbitrator’s ruling on the basis of the
following three grounds.
13.1 The arbitrator
misconstrued the nature of the enquiry which he was required to
conduct in that he laboured under the wrong
impression that the
enquiry was whether he had jurisdiction to entertain the merits of Mr
Vos’ unfair labour dismissal dispute.
13.2 The arbitrator
erroneously found that it is only the Labour Appeal Court (LAC) which
was empowered to decide whether the issues
raised in the preliminary
point were
res judicata
, and
13.3 The arbitrator
failed to appreciate and understand that the issues as identified in
the preliminary objections were correctly
regarded in law as
res
judic
ata given the content of a judgment handed down by this
Honourable Court.
[14] Mr Vos opposed this
application on the basis that the Department has not made out a case
that it is just and equitable for
this Court to review the decision
or ruling made by the arbitrator relating to the jurisdiction of the
bargaining council. Mr Vos
relied on section 158(1B) of the LRA and
Clause 11.2.5 of the Labour Court Practice Manual in further
submitting that there would
be no basis for the ruling to be reviewed
before the issue in dispute has been finalised.
[15]
Therefore, the issue is whether it is just and equitable for this
Court to review the decision or ruling made by the arbitrator
during
the arbitration proceedings before the issue in dispute has been
finally determined.
Applicable law and
evaluation
[16] Section 158(1B) of
the LRA prohibits the Labour Court from reviewing any decision or
ruling made during conciliation or arbitration
proceedings conducted
under the auspices of the commission or any bargaining council before
the issue in dispute has been finally
determined by the commission or
the bargaining council, as the case may be, except if the Labour
Court is of the opinion that it
is just and equitable to do so.
[17]
In the hearing before me, Advocate Kroon SC acting on behalf of the
Department, submitted that the arbitration was set down
for hearing
on 6 April 2018 on which date it was postponed
sine
die
pending the outcome of this
application. Advocate Grobler acting on behalf of Mr Vos, did not
contest that the arbitrator misconstrued
the nature of the enquiry
which he was required to conduct
and
further conceded that there was a lot of logic to the Department’s
point
in limine
relating to
res judicata.
His argument was whether there was a need for this Court to intervene
at this time or to wait for the finalisation of the arbitration
proceedings and whether the findings of Golden AJ bound the
arbitrator.
[18] While the Department
readily accepted that it is not the norm to bring a review
application on a piecemeal basis, it submitted
that it was in the
interest of justice and the provisions of the LRA to do so for three
reasons. The first reason was that the
ruling which impugned and
which was patently incorrect would result in a substantial waste of
time and costs because the arbitration,
which may potentially be
lengthy, would concern the very cardinal issue which this Honourable
Court has already decided. Accordingly,
it was the Department’s
submission that this issue should be clarified at the earliest
opportunity.
[19]
In this regard, the Department relied on the judgment of
Clencor
(Pty) Ltd v Mngezana N.O. and Others,
[4]
in
which the LAC dealt with a situation, although not on all fours had
analogous aspects to it. In that matter, Clencor (Pty) Ltd
brought an
appeal against certain findings of the Labour Court which brought
uncertainty as to what issues were live issues at
the Commission for
Conciliation Mediation and Arbitration (CCMA) and whether these
findings were binding on the arbitrator. In
that judgment, the LAC
held that:
‘
It
is in the interest of justice that the factual findings of the LC
should be set aside, lest they cause confusion and protracted
arguments and litigation.’
[20] In a case where
there is uncertainty or confusion as to what are live issues before
the arbitrator, it must be clarified before
the arbitration
commences. In this case, although the review application concerns a
ruling made during the arbitration, is it is
apparent from its
reading that there is uncertainty as to precisely what issues are
live before the arbitrator and whether the
findings of the Labour
Court on the issue of Mr Vos’ reinstatement are binding on the
arbitrator. Given the protracted nature
of this dispute, it is
clearly in the interests of justice to avoid confusion and protracted
argument by determining whether the
ruling should be set aside or not
[21]
By recording that the issue before him was whether the bargaining
council had jurisdiction to entertain the merits of Mr. Vos’
unfair dismissal, the arbitrator clearly misconstrued the nature of
the enquiry that he was required to determine. The preliminary
point
had nothing to do with jurisdiction. Instead, the Department’s
point
in
limine
before the arbitrator was whether Golden AJ had already determined
and disposed of the issue of Mr Vos’ reinstatement. It
is trite
that the requirements for the granting of a plea of
lis
pendens
are pending litigation between the same parties or their privies
based on the same course of action and in respect of the same
subject
matter. In
Caesarstone
Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others,
[5]
the
court appropriately summarised the principles relating to a plea of
lis
pendens
as follows:
‘
[2]
As its name indicates, a plea of
lis
alibi pendens
is based on the
proposition that the dispute (
lis
)
between the parties is being litigated elsewhere and therefore it is
inappropriate for it to be litigated in the court in which
the plea
is raised. The policy underpinning it is that there should be a limit
to the extent to which the same issue is litigated
between the same
parties and that it is desirable that there be finality in
litigation. The courts are also concerned to avoid
a situation where
different courts pronounce on the same issue with the risk that they
may reach differing conclusions. It is a
plea that has been
recognised by our courts for over 100 years.
[3] The plea bears an
affinity to the plea of
res judicata
, which is directed at
achieving the same policy goals. Their close relationship is evident
from the following passage from
Voet
44.2.7:
'
Exception of
lis
pendens
also requires same persons, thing and cause.
The
exception that a suit is already pending is quite akin to the
exception of
res judicata,
in as much as, when a suit is
pending before another judge, this exception is granted just so often
as, and in all those cases in
which after a suit has been ended there
is room for the exception of
res judicata
in terms of what has
already been said. Thus the suit must already have started to be
mooted before another judge between the same
persons, about the same
matter and on the same cause, since the place where a judicial
proceeding has once been taken up is also
the place where it ought to
be given its ending.' [Footnotes omitted]
[22]
In
Nehawu
obo Kgekwane v Department of Development Planning and Local
Government,
[6]
the
LAC stated the following:
‘…
Allied
to the rule against collateral challenges is the
exceptio
res judicata
,
which is available where another court (or tribunal) of competent
jurisdiction has already pronounced finally on the same issue
between
the same parties. The previous judgment must have been given by a
competent court, the matter must have involved the same
parties (or
their successors-in-title) and must have been based on the same cause
of action with respect to the same subject matter
or thing. These
elements were all present in the dispute before the Commissioner in
this matter. Importantly, in this regard, the
exceptio
res judicata
is
applicable also to arbitration awards whether obtained in private
arbitration proceedings or in proceedings under the LRA’
[7]
(Footnotes omitted)
[23] In
casu
, it
is common cause that one of the grounds of review before Golden AJ
was whether the arbitrator acted both irregularly and grossly
unreasonable in disregarding the common cause fact ground that Mr Vos
was incapacitated and could not return to perform his job.
In the
review application, both Mr Vos and the Department were legally
represented by both attorneys and counsels and the issue
relating to
the appropriateness of Mr Vos’ reinstatement was thoroughly
dealt with. In this regard, Golden AJ made the following
findings:
‘
[40]
The fact that the arbitrator not only went beyond the parameters of
the stated case, but that he also disregarded an important
fact in
his determination as to whether Vos ought to have been reinstated is
demonstrably a further reviewable irregularity that
the arbitrator
had failed to apply his mind. Vos had not worked for 10 years and
could not return to work to perform his job. Reinstatement
was
clearly not the appropriate sanction, even if it could be argued that
his dismissal was substantively unfair. The order of
back pay is a
further irregularity, given that Vos had not worked for 10 years.
[41] I do not accept Vos’
contention that reinstatement was correct and appropriate in
circumstances, so that he could apply
for ill-health retirement, and
that if he is not reinstated, he would not be able to apply for
ill-health retirement benefits.
This contention, with respect, is
illogical.
[42] An order of
reinstatement cannot be granted just to afford an employee an
opportunity to apply for certain benefits, which
would ultimately see
him in any event exiting the workplace permanently. An order of
reinstatement is remedy that may ordinarily
be granted if the
employee's dismissal was found to be substantively unfair.
Reinstatement as a remedy will depend on the facts
of each case. It
also does seem logical, and appropriate reinstatement where the
employee himself, as in Vos’ case, cannot
perform his job and
no longer wants to work for the Department.
[43] The manner in which
the arbitrator dealt with the issue of reinstatement reveals that the
arbitrator not only exceeded his
powers, but that he had misdirected
himself which has resulted an unreasonable finding.’
[24]
Golden AJ found that in reinstating Mr Vos, the arbitrator did not
only exceed his powers but he misdirected himself, which
misdirection
resulted in an unreasonable finding. Of importance is that the Court
found Mr Vos’ reinstatement not to be an
appropriate sanction,
even if it could be argued that his dismissal was substantially
unfair. This is dispositive of the issue
of Mr Vos’
reinstatement. What follows is that Mr Vos is precluded from opening
the issue of reinstatement at the arbitration
de
novo
.
There is, therefore, merit in the Department’s submission that
the arbitrator’s impression that if the matter was
remitted to
be heard
de
novo
then neither party could raise the issue of
res
judicata
with reference to findings made by the very Court which had remitted
the matter is wrong. In
Turnbull-Jackson
v Hibiscus Coast Municipality and Others,
[8]
the Constitutional Court held as follows:
‘
[62]
It happens fairly frequently that a court will give more than one
basis for determining an issue, each of which bases is dispositive.
Do the second and subsequent bases become
obiter
purely
because the first – standing all by itself – is
dispositive of the dispute; or vice versa? I think
not.
The answer must still lie in whether each of the many prongs of the
court’s reasoning is central to the resolution
of the issue
under consideration. If the additional bases are central to the
reasoning, not subsidiary and not mere reasoning on
the facts, they
are as much part of the
ratio
decidendi
as the first basis.
Not surprisingly, this Court has held that “the fact that a
higher court decides more than
one issue, in arriving at its ultimate
disposition of the matter before it, does not render the reasoning
leading to any one of
these decisions
obiter
, leaving
lower courts free to elect whichever reasoning they prefer to
follow”.
[63]
Brand AJ added:
“
It
is tempting to avoid a decision by higher authority when one believes
it to be plainly wrong. Judges who embark upon this
exercise of
avoidance are invariably convinced that they are ‘doing the
right thing’. Yet, they must bear in
mind that
unwarranted evasion of a binding decision undermines the doctrine of
precedent and eventually may lead to the breakdown
of the rule of law
itself. If judges believe that there are good reasons why a
decision binding on them should be changed,
the way to go about it is
to formulate those reasons and urge the court of higher authority to
effect the change. Needless
to say this should be done in a
manner which shows courtesy and respect, not only because it relates
to a higher court, but because
collegiality and mutual respect is
owed to all judicial officers, whatever their standing in the
judicial hierarchy.”
[25]
The arbitrator failed to appreciate and understand that the issues as
identified in the preliminary objections were correctly
regarded in
law as
res
judic
ata
given the content of a judgment handed down by this Honourable Court.
The Court’s findings are binding on the arbitrator.
There is,
therefore, no legal basis for the arbitrator’s finding that it
is only the LAC which was empowered to decide whether
the issues
raised in the preliminary point were
res
judicata
.
The arbitrator was not only entitled, but he was obliged to decide
and determine the preliminary point.
[9]
[26] The Department’s
submission was that by deciding the preliminary point in the manner
which he did, the arbitrator has
effectively decided whether Mr Vos
is entitled to claim reinstatement and further that there is an
element of contempt in both
the conduct of the arbitrator as well as
Mr Vos in openly purporting to conduct themselves in the manner which
disregards the findings
and indeed the directions of this Court. This
is a fair proposition. If Mr Vos was unhappy with the findings in
Golden AJ’s
judgment, he should have filed an application to
appeal it. In the premise, Mr Vos is precluded from claiming
reinstatement and
back pay.
[27]
As such, the arbitrator committed an error of law in finding that it
is only the LAC that was empowered to decide whether the
issues
raised in the preliminary point were
res
judicata
and in failing to appreciate
and understand that the issues as identified in the preliminary
objections were correctly regarded
in law as
res
judic
ata. In so doing, he committed a
gross irregularity. The question is whether the error is material to
an extent of having an effect
to render the outcome unreasonable. The
arbitrator’s finding that he could not “
conclude
that the GPSSBC does not have jurisdiction to hear the dispute in
questio
n” resulted from an error
in his interpretation of
Golden
AJ’s judgment and it
is
legally wrong. In addition, he misconstrued the true nature of the
dispute before him.
Conclusion
[28] As a result, the
outcome the arbitrator arrived at cannot be reasonable. His decision
does not fall within the range of possible
justifiable decisions that
could be reached based on the facts before the decision-maker.
Therefore, the arbitrator committed a
reviewable irregularity, and
his ruling stands to be set aside. With regard to costs, I am of the
opinion that the requirements
of law and fairness dictate that there
should be no order as to costs.
[29] In the premise, I
make the following order:
Order
1. The
ruling issued by the first respondent (the arbitrator) dated 10 July
2017, under case number GPBC1981-2013 is reviewed, set
aside and
substituted with the following ruling:
a) The preliminary point
raised by the applicant, and in particular, the plea of
res
judicata,
is upheld.
b) It
is not permissible for the third respondent to seek reinstatement and
back pay in the proceedings currently serving before
the second
respondent under case number GPBC1981-2013.
2.
The
second respondent is directed to set down the unfair dismissal
dispute referred by the third respondent for arbitration
to
be heard by a commissioner other than the first respondent to
determine whether or not the dismissal of the employee was fair.
3. There is no order as
to costs.
__________________
D Mahosi
Judge of the Labour Court
of South Africa
Appearances
For the Applicant:
Advocate Kroon SC with Advocate M Thys,
Instructed by State
Attorney
For the Respondent:
Advocate Grobler
Instructed by Randel &
Associates Attorneys
[1]
Act 66 of 1995 as amended.
[2]
Index
to pleadings, page 63
[3]
Index
to pleadings, page 63 Index to pleadings, page 91
[4]
[2018] 4 BLLR 332
(LAC)
.
[5]
2013
(6) SA 499 (SCA).
[6]
[2015]
6 BLLR 575 (LAC).
[7]
(2015)
36 ILJ 1247 (LAC) at para 26.
[8]
2014 (11) BCLR 1310 (CC).
[9]
CCMA-Guidelines
on Misconduct Arbitration, at para 24.