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 190
|
|
Department of Agriculture & Rural Development: Limpopo Provincial Government v Phooko NO and Others (JR2007/17) [2019] ZALCJHB 190 (2 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR
2007/17
In
the matter between:
DEPARTMENT OF
AGRICULTURE &
RURAL DEVELOPMENT:
LIMPOPO PROVINCIAL
GOVERNMENT
Applicant
and
M.E.
PHOOKO N.
O
First
Respondent
GPSSBC
Second Respondent
C.V
NDLOZI
Third Respondent
Heard
:
31 July 2019
Delivered
:
02 August 2019
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
first respondent is hereby reviewed and set aside. (2) The dispute is
remitted to the second respondent
to be determined by another
arbitrator other than the first respondent. (3) No order as to costs.
JUDGMENT
MOSHOANA, J
Introduction
[1] This
is an opposed review application. The first respondent found that the
applicant committed an unfair
labour practice relating to the
provision of benefits. He ordered the applicant to pay the third
respondent a sum of money in respect
of performance bonus within 30
days of the award being issued.
Background
facts
[2]
The third respondent, Mr Ndlozi, held a position at the level of
Deputy Director, a level 12 position
in 2008. During December 2008,
in order to retain him in the department, he was offered salary at
level 13. In September 2013,
he was absorbed into a vacant post of a
Senior Manager, which was at a Director level. During the 2013/2014
financial year, Ndlozi
was performance assessed and received a rating
of 4. Prior to the changes, the rating qualified him for a cash
bonus. As a result,
Ndlozi did not receive the bonus. Aggrieved
thereby, he referred a dispute alleging an unfair labour practice. At
arbitration parties
agreed to dispose of the dispute by filing
written submissions. Having considered the written submissions, the
first respondent
issued the impugned award.
Grounds
of Review
[2]
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
[3]
At
the commencement of argument, counsel for the applicant brought to my
attention a judgment of this court, which judgment, held
that where
evidence was not led the arbitration process is defective. 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…’
[4]
I
fully agree with the above sentiments. In
casu
,
the first respondent condoned an agreement not to lead evidence. This
may have been a convenient approach, 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 Labour Appeal Court (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…’
[5]
The approach taken by the first respondent 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.’
[6]
Therefore,
the third respondent failed to arbitrate the dispute
[4]
.
In terms of section 186 (2) an unfair labour practice means any
unfair act or omission that arises between an employer and an
employee involving unfair conduct by the employer relating to the
provisions of benefits to an employee. In order to answer this
legal
question an arbitrator must receive evidence and/or be furnished with
a stated case.
[5]
[7]
For all the above reasons, I come to the
conclusion that the award is a nullity and ought to be reviewed and
set aside.
[8]
In the results I make the following order:
Order
1.
The
undated award issued by the first respondent under case number
GPBC1264/16 is hereby reviewed and set aside.
2.
The
dispute is remitted to the second respondent to be determined by
another panelist other than the first respondent.
3.
There
is no order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Advocate
S Tilly
Instructed
by: State
Attorney, Pretoria.
For
the Third Respondent: In Person
[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]
Arbitrators are warned not to simply approve this approach. Soon the
Labour Court shall be making costs orders against arbitrators
who
approve this kind of an approach.
[5]
See also:
NUM
and Others v Hartebeestfontein Gold Mining Co Ltd
1986 (3) SA 53
(A) as to the meaning of a stated case.