About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 133
|
|
Courier & Freight Group v National Bargaining Council for the Road Freight & Logistics Industry and Others (JR846/16) [2019] ZALCJHB 133 (6 February 2019)
the
labour court of South Africa, johannesburg
judgment
Not
reportable
CASE
NO: JR846/16
In the matter between:
THE COURIER &
FREIGHT GROUP Applicant
and
NATIONAL BARGAINING
COUNCIL FOR THE
ROAD
FREIGHT & LOGISTICS INDUSTRY
First
Respondent
ANEAS
L D PIETERS N.O.
Second
Respondent
NHLANHLA
CLEMENT NCUBE
Third Respondent
Heard:
31 January 2019
Judgment
delivered: 6 February 2019
JUDGMENT
VAN NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second
respondent (the arbitrator) on 26 February 2016.
In his award, the arbitrator found that the third respondent (the
employee) had
been unfairly dismissed. The arbitrator ordered that he
be reinstated with retrospective effect.
[2]
The material facts are not in dispute. The employee was employed in
terms of a series of
fixed-term contracts of employment, the last of
which commenced in June 2013 and was to terminate on 31 May 2018. The
employee
was dismissed in December 2014 after being found guilty of a
number of charges relating to certain contracts which the applicant
alleged had been irregularly concluded. In particular, the applicant
had appointed W2 Vehicle Consultants to deliver brokerage
services at
what was referred to as its Millside in-house, situated in the main
Transnet Infrastructure Depot near Randfontein.
In November 2012 the
applicant launched a forensic audit into alleged irregularities with
regard to the appointment of W2 in the
absence of any proper
procurement process and service level agreements. The report
implicated the employee who after a protracted
hearing was ultimately
dismissed for amongst other things, a failure to ensure compliance
with the relevant policies and procedures.
The employee disputed the
fairness of his dismissal and the matter was ultimately referred to
arbitration under the auspices of
the first respondent and before the
arbitrator.
[3]
During the course of the arbitration proceedings, a dispute arose
about the pre-arbitration
minute. That dispute has its roots in a
draft minute forwarded by the applicant’s attorney to the
respondent’s attorney
on 28 May 2015. The minute was sent under
cover of an email in the following terms:
Please
find attached hereto the draft minute for your consideration.
Should
you be satisfied with same, we kindly request that you sign and
return same to write to hear of via email.
[4]
Paragraph 2.7 of the draft, included under the heading ’Facts
that are agreed
between the parties in terms of Rule 20(2) (b)’,
reads as follows:
2.7
That, until July 2012, Reddy, Moses and/or Igsaan were primarily
responsible for the procurement,
management and/or dealings with the
respondent suppliers including, but not limited to, W2?
[5]
On to June 2015, the respondent’s attorney sent a signed minute
to the applicant’s
attorney under cover of an email that reads
as follows:
A copy of the
pre-arbitration minute is attached hereto for your perusal and
records. I trust that you will find the above in order.
[6]
The minutes attached to the email contained certain changes made by
the applicant’s
attorney, including changes to paragraphs 2.5,
2.6 and 2.7. For the purposes of these proceedings, the controversial
amendment
was made to paragraph 2.7 of the minute. In terms of the
signed minute forwarded to the third respondent’s attorney,
paragraph
2.7 reads as follows
However, from around July
2012, the applicant became primarily responsible for the procurement,
management and/or dealings with
the respondent suppliers to the in
houses including but not limited to W2.
[7]
This is obviously a material change to terms of the minute and places
primary responsibility
for the management of the contracts concerned
on the employee. However, when he received the signed minute, the
third respondent’s
attorney believed that the minute had
remained unchanged and that the applicant was satisfied with the
draft previously sent to
it. He signed the minute received on to June
2015 from the applicant’s attorney on this basis. The amendment
to the minute
came to the knowledge of the third respondent’s
attorney only on the first day of the arbitration hearing.
[8]
At the outset of the proceedings, the issue was raised by the
parties. The employee’s
representative submitted that the
applicant’s representative had inserted the amendments to close
2.7 without his knowledge
or agreement, and that the minute should in
those circumstances be declared non-binding. The applicant objected,
and contended
that the signed minute was binding in its totality. The
arbitrator ruled that he would deal with the issue at the stage of
argument,
and that the parties were to address them on this point.
The arbitration hearing proceeded on this basis.
[9]
The arbitrator’s ruling on the issue is contained in the
following paragraphs
in his award:
[9]
The parties compiled a pre-trail (sic) minute prior to the
arbitration dated 25 May
2015. At the first sitting the applicant
raised a point of concern with regards to the content of clause 2.7
of the minute. More
pertinently the applicant submitted that the
respondent inserted and (sic) additional sentence into the clause
that it did not
sanction neither agree with and that each should be
declared non-binding. The respondent objected and argued that the
minute is
binding in its totality to all signatories to it. I made a
ruling that the parties address be on this point in closing
arguments.
What follows is a summary of the two arguments made in
support of the parties’ respective positions and my reading on
this
preliminary point.
[10]
The applicant argued that between 27
th
of May 2015 and 1
June 2015 is representative, Mr. Anestidis, and the respondent’s
representative, Mr. Mosebo, exchanged
via email draft copies of the
minute and an agenda. On one July 2015 Mr. Anestidis emailed to what
the applicant perceived as a
“final “draft of the minute
for Mr. Mosebo to sign off on behalf of the respondent should he be
in agreement with it.
At this junction paragraph 2.7 of the minute to
read:
“
That,
until July 2012, Reddy, Moses and/or Igsaan were primarily
responsible for the procurement, management and/or dealings with
the
respondent suppliers including, but not limited to, W27.”
Mr. Mosebo responded on
to June 2015 emailing a signed minute with the following addition to
paragraph 2.7:
“
However,
from around July 2012, the applicant became primarily responsible for
the procurement, management and/or dealings with
the respondent
suppliers to the in-houses including but not limited to W27.”
Without notification to
the applicant or his attorney, the respondent’s attorney
deceitfully made certain changes to the minute,
including paragraphs
2.5, 2.6 and 2.7. The applicant [and his attorney] truly believed and
trusted that the signed minute [as received
by them on to June 2015
from the respondent’s attorney] was the minute as sent to Mr.
Mosebo attorney on one June 2015. As
such, the applicant’s
attorney proceeded to sign the minute on to June 2015 in the bona
fide and honest belief/understanding
that the minutes remained
unchanged on the basis that the respondent was satisfied with the
draft minute as sent to them on two
prior occasions. Inserted
sentence was only discovered by the applicant and his representative
at the arbitration hearing.
[11]
The applicant denies the content of the inserted sentence as it is in
direct conflict and contradiction
with paragraph 3.5 of the minute
[dealing with the identified facts in dispute] which clearly dispute
“
Whether the applicant was responsible for ensuring that W2
was compliant with the new procurement policy, as amended in 2012.”
Relying on case law authority, the applicant argued that the
pretrial minute is not determinative of a dispute and the eventual
outcome as “
the pretrial minute had to be read and
understood holistically and not in a calm compartmentalized and
restrictive fashion”,
and that “
the
pre-arbitration minute signed between the parties does not limit the
issues for determination by (this) arbitration.”
[12]
The respondent argued that the legal representatives of both parties
signed the minute on 25
May 2015 and there was no objection from the
applicant prior to the arbitration. The applicant on (sic) raised a
complaint at the
hearing, without prior notice and seemingly seeking
to unilaterally to resign from the minute. The respondent, relying on
a litany
of long-standing and recent authorities, argued that
admissions of fact made at the pretrial conference constitute
sufficient proof
of those facts; that a party mainly result from the
pre-trail (sic) minute under special circumstances; that special
circumstances
me that the applicant must establish a basis for doing
so in the contract; and that the minutes of a pretrial son by a party
always
representative is binding. It follows that the content of the
pretrial minute inclusive of paragraph 2.7 is binding on the
applicant
and that the admissions made by the applicant’s
attorney there in constitute sufficient proof of the facts admitted
there
of and is binding on the applicant.…
[10]
The arbitrator went on to consider various authorities, and the issue
of rectification. He concluded
as follows:
[14]
Applying the above mentioned principles and having holistic regard to
the provisions of the pre-arbitration
minute, the evidence adduced in
this case, the historical background and context to the matter, I am
of the view that the pretrial
minute, although binding on the parties
in its totality, is not exclusively determinant of the issues raised
in dispute in this
matter.
[11]
In relation to the merits of the charges brought against the
employee, the arbitrator says the
following, at paragraph 35 of the
award:
A major point in dispute
concerning this matter is whether or not the applicant assumed
responsibility for the brokerage services
rendered by W2 at the
respondent’s Millside in-house on July/October 2012. This
serves as the applicant’s primary and
most vital defense to the
charges preferred against him by the respondent and is proven
correct, absolves him from responsibility
for ensuing policy
compliance of W2 for the periods identified in the charges. The
respondent, as the onus bearing party in these
proceedings, a link to
the applicant’s responsibility for W2 to a concession made to
this effect in clause 2.7 of the arbitration
minute to which the
applicant objected and the matter (legal binding effect of the
minute) was left to be dealt with in arguments.
The respondent’s
belated application half way through these proceedings to reopen its
case and need fresh evidence to address
this crucial point was denied
see preliminary points above). I must determine this issue taking
into account holistically the provisions
of the arbitration minute
(minute) as well as the evidence led by the respective parties.
[12]
The arbitrator referred again to the provisions of the minute and in
particular, paragraphs 2.7
and 3.5. He noted that in terms of
paragraph 2.7, it was recorded as an agreed fact that the employee
became primarily responsible
for procurement, management and other
dealings with the applicant’s suppliers and that in terms of
paragraph 3.5 of the minute,
under the heading ‘Facts in
dispute’ it was recorded that the arbitrator was to decide
whether the employee was responsible
for ensuring that W2 was
compliant with the new procurement policy, as amended in 2012. At
paragraph 35 of the award, the arbitrator
goes on to draw the
following conclusion:
It
is the applicant’s contention in argument that this paragraph
[paragraph 3.5] is in direct contradiction to paragraph 2.7
of the
minute; that these provisions are the fall, mutually
destructive/exclusive and create significant ambiguity in the minute
and that there is no rational or other reason why paragraph 2.7 of
the minute should supersede/override paragraph 3.5 or vice versa.
The
same arguments emerges under the provisions of paragraph 4.2 of the
minute where the parties identify the issues to be decided
by the
Commissioner to include where the “the applicant should have
been found guilty of the charges he was found guilty
of at his
disciplinary hearing.” Given the inherent contradictions
identified in the minute, and noting that the view that
to the
pretrial minute is not determinative of a dispute and the eventual
outcome, I now turn to the evidence adduced in this case
in
determining the point.
[13]
In his analysis of the evidence, the arbitrator found that it was
more probable that the applicant
was responsible for the strategy to
grow brokerage at the in-houses but that he did not assume
responsibility to source suppliers
in accomplishing this objective,
‘as he left it to the experts.’ These persons were Reddy
and Els. On the facts, the
arbitrator considered that the employee
did not become responsible for brokerage, including W2, when he took
over the applicant’s
in- houses in October 2012. On this basis,
the arbitrator concluded that the employee had not breached a
workplace rule and that
his dismissal was therefore substantively
unfair. As I have recorded above, he arbitrator concluded that the
third respondent had
been unfairly dismissed and ordered that he be
reinstated with retrospective effect (a sum of R 1 241 891) to be
paid within 30
days.
[14]
The applicant has raised a number of grounds for review, all of them
based on the events surrounding
the pre-arbitration minute. First,
the applicant attacks the arbitrator’s findings in relation how
the pre-arbitration minute
came to be concluded. Secondly, the
applicant contends that the arbitrator permitted rectification of the
minute; thirdly, that
he erred in finding that there was a
contradiction in the minute; and finally, that neither the arbitrator
nor the third respondent
had raised the issue of the contradiction
during the arbitration proceedings.
[15]
Turning to the first ground for review, the arbitrator’s
conclusions, as reflected above,
were to the effect that the minute
was binding and that any concessions and admissions made were proof
of such, and that although
binding in its totality the minute was not
exclusively determinant of the issue raised in dispute. The
arbitrator then proceeded
to determine the key issue in dispute (i.e.
whether the employee had assumed responsibility for the brokerage
services rendered
by W2) taking into account the terms of the minute
and the evidence before him. In effect, the arbitrator held that the
terms of
the minute were inconclusive on the point, and determined
the matter on the basis of the evidence. Contrary to what the
applicant
contends, the arbitrator did not make a finding regarding
the manner in which the minute was concluded. That part of the award
of which the applicant complains is a summary of the evidence and
submissions placed before the arbitrator, and not a finding on
his
part. In the absence of any finding of the nature complained of, the
first ground for review stands to fail.
[16]
The second ground for review suggests that the arbitrator permitted a
rectification of the minute.
There is no indication in the award that
rectification was indeed granted. On the contrary, the arbitrator
determined the issue
in dispute by reference to the evidence, without
any rectification of the minute (see paragraph 36 of the award). The
second ground
for review has no foundation in the award and stands to
be dismissed.
[17]
The third ground for review is that the arbitrator erred in finding
that there was a contradiction
in the pre-trial minute. Paragraph 36
of the award, referred to above, sets out the arbitrator’s
reasoning. Given the terms
of the minute, the arbitrator could not
but draw attention to the tension between paragraphs 2.7 and 3.5,
which on the one hand
amounted to an admission of responsibility and
on the other, specifically placed this issue in dispute. .
[18]
In so far as the applicant contends that neither the applicant nor
the third respondent had raised
the issue of a contradiction in the
minute, this is not borne out by the record. There are a number of
passages that indicate that
the parties were acutely aware that was
reflected in the minute, in paragraph 2.7, as a ‘common cause
fact’ was always
in dispute.
[19]
In short, none of the grounds for review establish any reviewable
irregularity on the part of
the arbitrator, or any denial of a fair
hearing. The genesis of the dispute was clearly the terms of the
interaction between the
parties’ respective attorneys. Had the
applicant’s attorney more pertinently drawn the employee’s
attorney’s
attention to the amendments that he had effected to
the draft minute forwarded to him, this dispute would never have
arisen. Equally,
had the employee’s attorney scrutinized the
minute (as he had been invited to do) prior to signing it, these
proceedings
would not have been instituted. What exacerbates matters
is that on discovering that there had been no meeting of the minds on
crucial elements of the pre-trial minute, both representatives sought
to entrench their positions. The applicant’s attorney
argued
that the employee was bound by the minute as signed; the employee’s
attorney sought to have the minute declared invalid
and set aside.
Had both attorneys, in a gesture of collegiality, recognised what had
happened for what it was and sought to resolve
the issue prior to the
commencement of the hearing, they would have discharged their
respective obligations to the integrity of
the dispute resolution
process rather than their clients’ narrow interests.
[20]
In short: the present application is premised on the arbitrator’s
dealing with the terms
of the pre-arbitration minute. At the end of
the day, while the arbitrator can be criticised for failing to ensure
prior to the
commencement of the hearing that a pre-trial minute
properly reflecting what was in dispute and what was not, both
parties were
aware that the status of the minute would only be
determined at the end of proceedings and that they would be required
to present
their respective cases on that basis. In so far as
the result of the proceedings is concerned, the terms of the minute
ultimately
made no difference – the arbitrator made a finding
on the evidence that had been led, and the reasonableness of that
outcome
has not seriously been called into question. In these
circumstances, the application stands to be dismissed.
[21]
Finally, there is no reason why costs ought not to follow the result.
The court has a broad discretion
in terms of s 162 of the LRA to make
an order for costs according to the requirements of the law and
fairness. In my view, those
interests are best satisfied by an order
indemnifying the third respondent against the costs that he has been
applied to incur
in opposing this application
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
REPRESENTATION
For the applicant: Adv. P
Mokoena SC, with him Adv. M Mokoti, instructed by Werksmans Attorneys
For the third respondent:
Adv. M Lennox, instructed by Eversheds Sutherland SA Inc.