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[2019] ZALCJHB 343
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Merafong City Local Municipality v Poo and Others (JR1643/16) [2019] ZALCJHB 343 (29 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR1643/16
In
the matter between:
MERAFONG
CITY LOCAL
MUNICIPALITY
Applicant
and
TK
POO AND 3
OTHERS
First Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL (“SALGBC”)
Second Respondent
COMMISSIONER
MNS DAWSON
N.O
Third Respondent
Heard:
13 November 2019
Delivered:
29 November 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This is an application in terms of section 145
of
the Labour Relations Act
[1]
(LRA)
to
review
and set aside the arbitration award issued by the third respondent
(the arbitrator) under the auspices of the second respondent,
the
South African Local Government Bargaining Council (“SALGBC”),
dated 10 June 2016 under case number GPD101519.
[2]
Coupled with this application is the condonation application for the
late filing of
the above-mentioned review application.
[3]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the claim, it is necessary
to outline the facts that form the relevant background to the dispute
between the
parties as summarised in the pleadings.
Material background
facts
[4]
The first respondents, Mr Tebogo Poo, Ms Jabulile Mthembu, Ms
Dikeledi Blaai and Ms
Thulisile Skosana (employees), were interns
funded by the National Youth Services (NYS) and hosted by the
applicant. The funding
and internship program with NYS came to an end
after which the employees accepted an internship program directly
with the applicant.
[5]
The fixed-term contracts of internship of Mr Poo commenced with
effect from the 1
December 2013 for 2 or 3 months’ periods, and
renewed upon every expiry. The longest internship fixed term contract
entered
into between Mr Poo and the applicant was for the duration of
one year, from 1 September 2015 to 31 August 2016. The contracts
between the parties were reduced to writing recording the terms of
their relationship as follows:
“
Fixed
Term Agreement of Internship (Heading)”
“
Parties
– Mr T.K Poo herein referred to as the student”
“
Remuneration
– The Municipality will pay the student a gross monthly
remuneration of R3 500.00 which will be payable by no
later than the
last day of the month” No any other remuneration my emphasis
“
General
Clause- This document contains the entire agreement between the
parties. No party shall have any claim or right of action
arising
from any undertaking, representation or warranty not included in this
document. No agreement to vary, add or to cancel
this agreement shall
be of any force or effect unless reduced to writing and signed by or
on behalf of the parties to this agreement”
[6]
Ms
Jabulile
Mthembu was offered a fixed term contract of internship from 01
December 2013 for shorter periods of 2 or 3 months until
she was
given an internship fixed term contract for one year commencing from
1 September 2015 to 31 August 2016.
Similarly
to Mr Poo, Ms Mthembu’s internship contract contained the same
terms and conditions. Her stipend was for R3500.00
from inception
until the expiry of the fixed term contract.
[7]
Ms Dikeledi Blaal entered into a fixed term contract of internship
like the other
employees from 01 December 2013 for shorter periods of
2 or 3 months until her last fixed term internship contract expired
on 31
August 2016, and she was receiving a stipend of R3500.00. Her
internship fixed term contracts had similar clauses as the mentioned
supra
.
[8]
It was only for the period of 01 July 2014 to the end of September
2014 that she was
given a fixed term contract in order to relieve in
the Office of the Chief Operation Officer as the Secretary and was
paid R12
389.51 per month. This fixed term contract was extended for
03 months ending 31 December 2014 on the same conditions. When the
fixed term contract expired she was, with effect from 01 January 2015
until 31 August 2016, offered a written fixed term agreement
of
internship with a stipend of R3500.00. She signed and agreed to the
terms of that contract.
[9]
Ms Thulisile Skhosana also signed the fixed term contract of
internship like the other
interns with effect from 01 May 2013 for a
stipend of R3500.00. From 01 July 2014 to 31 December 2014, a period
of 6 months, she
was asked to relieve in the Office of the Acting
Manager: Human Capital, and was remunerated R12 389.51 just like the
other employee.
She then returned back to her internship fixed term
contract with effect from the 01 January 2015 until she resigned on
30 June
2016 and she was earning R3500.00. She also signed the
written contracts at all material times.
[10]
On 13 October 2015, the employees referred an unfair labour practice
dispute to the South African Local
Government Bargaining Council
(SALGBC) for conciliation. In their referral they alleged that
the
applicant promised to give them fixed term contracts of 12 months,
the same as one as Sthembiso Mageza’s, which will culminate
into permanent employment. They further alleged that the applicant
owed them their stipend from August 2015.
The
dispute could not be resolved through conciliation and as a result,
the certificate of non-resolution was issued. The employees
then
referred the dispute to arbitration.
[11]
On 18 March 2016, the parties held a pre-arbitration conference in
which a pre-arbitration minute was
concluded. The arbitration was
scheduled for and held on 22 March 2016. Ms Lulama Daisy, the
applicant’s Labour Relations
Officer, represented the applicant
and Advocate Fumali Baloyi represented the employees.
Arbitration
[12]
At the commencement of the arbitration, Ms Twala (for the applicant)
made an application for postponement on the basis that she was
not ready to proceed with the arbitration. The employees opposed the
postponement application stating that the applicant became aware of
the date of the arbitration on 16 February 2016 and that the
applicant failed to indicate that it needed a postponement when the
parties held a pre-arbitration conference. Subsequent to considering
the parties’ submissions, the arbitrator refused to grant the
application. In her award, the arbitrator recorded that after
taking
instructions from her superiors, Ms Twala opted to walk out of the
proceedings.
[13]
The arbitration proceeded without the applicant’s
representative. Subsequently, the arbitrator
issued an award in terms
of which she found that the applicant committed an unfair labour
practice and further ordered the applicant
to pay the employees
compensation.
It is
this default award that is the subject of this application.
[14]
The basis on which the applicant seeks to review the award is that
the arbitrator misconstrued the
nature of the dispute before him,
exceeded his powers by awarding remuneration, made unreasonable
findings and unreasonably dismissed
the postponement application.
Condonation
[15]
As aforesaid, the award was issued on 10 June 2016. However, it is
the applicant’s contention
that the said award was served on it
on 22 June 2016. It follows that the review application should have
been filed by 19 August
2016. Instead, it was filed on 12 September
2016. This makes the degree of lateness to be 15 days which is not
excessive.
[16]
I have had regard to the explanation
proffered by the applicant for the delay, the prospects of success
and the issues of prejudice.
I have further considered opposition
thereto and I am satisfied that on the whole, good cause was shown
and ultimately, the considerations
of the interests of justice
dictate that condonation be granted.
Review of a default
award
[17]
The first question to be considered is whether it is appropriate for
the applicant to seek an order
to review the default award instead of
making an application to rescind the default award. Section 144 of
the LRA deals with
the
variation and rescission of arbitration awards and rulings and it
reads:
‘
Any
commissioner who has issued an arbitration award or ruling, or any
other commissioner appointed by the director for that purpose,
may on
that commissioner‘s own accord or, on the application of any
affected party, vary or rescind an arbitration award
or ruling-
(a)
erroneously sought or
erroneously made in the absence of any party affected by that award;
(b)
in which there is an ambiguity,
or an obvious error or omission, but only to the extent
of that
ambiguity, error or omission;
(c)
granted as a result of a mistake
common to the parties to the proceedings; or
(d)
made in the absence of any
party, on good cause shown.’
[18]
In
Qibe
v Joy Global Africa (Pty) Ltd, In re: Joy Global Africa (Pty) Ltd v
Commission for Conciliation Mediation And Arbitration
and Others
[2]
the
Court stated as follows:
‘…
a
default arbitration award made by an arbitrator in the absence of one
of the
parties is not final in effect,
as it may be rescinded or revisited by the arbitrator who made the
award.
Therefore,
although a default arbitration award will have full
effect until set aside, it is not
final for purposes of a review, as contemplated in the LRA, because
the proceedings are not complete
and the award may be
revisited or rescinded by the
arbitrator who made the default award. It follows that only the
decision of the arbitrator dismissing
the rescission application may
be
reviewed − and not the
default arbitration award itself – as it is not a final
decision.’
[19]
In
Bloem
Water Board v Nthako NO and Others
[3]
the Labour Appeal Court (LAC) dealt with a case where the arbitrator
had arrived late for the hearing after the employer who had
been in
attendance had already left. The arbitrator concluded that the
employer was obliged to attend for the whole day and that
the
employer had abandoned the arbitration and proceeded to hear evidence
and issued an award. The employer did not seek to rescind
the award
in terms of section 144 of the LRA but instead launched an
application to review the alleged misconduct of the arbitrator.
This
Court refused to review the default award. The LAC overturned the
judgment of this Court and had the following to say:
‘
The conventional
approach of a court of review to decisions of a court or
administrative body, whether under the
Promotion of Administrative
Justice Act 3 of 2000
or otherwise, is that internal remedies should
be exhausted and piecemeal reviews are to be avoided. But a court may
intervene
in medias res
where the interests of justice require
it (ie
where injustices would otherwise occur)
,
although it is to be
used sparingly and only in
exceptional circumstances. In
Wahlhaus
v Additional Magistrate, Johannesburg (Wahlhaus)
the
Court expressed the principle this way:
‘
While
a superior court having jurisdiction in review or appeal will be slow
to
exercise any power, whether by
mandamus or otherwise upon unterminated
course of proceedings in a court
below, it certainly has the power to do so, and
will do so in rare cases where
grave injustice might otherwise result or where
justice might not by other means
be attained..... In general, however, it will hesitate to intervene,
especially having regard to
the effect of such procedure upon the
continuity of the proceedings in the court below, and to the fact
that redress by means of
review or appeal will ordinarily be
available.’
[20]
The LAC further stated that:
‘
[14]
Section 144
of the LRA provides,
prima facie
, a remedy, and in
the ordinary course the Labour Court would encourage an aggrieved
party to exhaust other remedies even though
it has the obligation,
jurisdiction and power to oversee the dispute resolution bodies
created in terms of the LRA. But
section 144
does not, in my view,
exclude the Labour Court review powers. Subject to the consideration
in the
Wahlhaus
judgment,
the Labour Court
may review a decision
in medias
res
.
[15]
Even where the jurisdiction of a court is excluded or deferred, a
court would be slow to find
this to be the case. However
section 144
is limited in its scope and does not allow for the correction of
every mistake or irregularity, it may be especially difficult
to show
“absence” and meet the requirements of
section 144
where
the appellant’s Representative attended but left the vanue
before the arbitration commenced.’
[21]
It is apparent from the above that this Court may intervene
in
medias res
where the interests of
justice require it
and
only in exceptional circumstances
.
I am of the view that this is one of the instances where this Court
may do so.
The merit
Postponement
application
[22]
The applicant challenged the arbitrator’s ruling in terms of
which he dismissed its application
for the postponement of the
arbitration. The basis on which the applicant made an application for
postponement was for it to secure
the material that supports the
common cause issues and to apply its mind to the discovered
documentary evidence. The employees
opposed the application and
submitted that the postponement application was meritless as the
material referred to was the employee’s
contracts with the
applicant, which were in its possession
[23]
In opposing the review application, the employees’ contention
is that the applicant’s
application for postponement lacked
merit and further that the arbitrator applied his mind to the facts
presented before him before
refusing to grant postponement.
[24]
It is trite that granting of posponement is an indulgence which
involves the exercise of a discretion
on the part of the
commissioner. In
Carephone
v Marcus NO and Others
[4]
,
the Court stated:
‘
[54]
In a court of law the granting of an application for postponement is
not a matter of right. It is an indulgence granted by
the court to a
litigant in the exercise of a judicial discretion. What is normally
required is a reasonable explanation for the
need to postpone and the
capability of an appropriate costs order to nullify the opposing
party’s prejudice or potential
prejudice. Interference on
appeal in a matter involving the lower court’s exercise of a
discretion will follow only if it
is concluded that the discretion
was not judicially exercised (
Madnitsky
v Rosenberg
1949
(2) SA 392
(A)
at 398-399).
[55]
There are at least three reasons why the approach to applications for
postponements in arbitration proceedings under the auspices
of the
Commission under the LRA is not necessarily on a par with that in
courts of law. The first is that arbitration proceedings
must be
structured to deal with a dispute fairly
and
quickly
(s 138(1)).
Secondly, it
must be done with ‘
the minimum of
legal formalities
’
(s 138(1)).
And thirdly, the possibility of making costs orders to counter
prejudice in good faith postponement applications is severely
restricted
(s 138(10)).
’
[25]
In
Psychological
Society of South Africa v Qwelane and Others
[5]
the Constitutional Court had the following to say in relation to
postponements:
‘
[30]
Postponements are not merely for the taking. They have to be properly
motivated and substantiated.
And when considering an application for
a postponement a court has to exercise its discretion whether to
grant the application.
It is a discretion in the true or narrow sense
– meaning that, so long as it is judicially exercised, another
court cannot
substitute its decision simply because it disagrees. The
decision to postpone is primarily one for the first instance court to
make.
[31]
In exercising its discretion, a court will consider whether the
application has been timeously
made, whether the explanation for the
postponement is full and satisfactory, whether there is prejudice to
any of the parties and
whether the application is opposed. All these
factors will be weighed to determine whether it is in the interests
of justice to
grant the postponement. And, importantly, this Court
has added to the mix. It has said that what is in the interests of
justice
is determined not only by what is in the interests of the
immediate parties, but also by what is in the broader public
interest.’
[26]
Considering the above authorities, it is apparent that the refusal of
postponement is reviewable if
the discretion was not judicially
exercised, that is, if it was exercised capriciously or upon any
wrong principles. In exercising
the discretion, the Court and the
arbitrator are required to consider whether the application has been
timeously made, whether
the explanation for the postponement is full
and satisfactory, whether there is prejudice to any of the parties,
whether the application
is opposed and whether it is in the interests
of justice to grant the postponement. In the current matter, although
the award does
not disclose the arbitrator’s reasons for
refusing to grant the postponement, the transcibed record shows that
his reasons
were as follows:
‘
ARBITRATOR:
Ja, application for adjournment is refused. Just to elaborate I’ll
tell you why. This matter was sent to the Municipality on the 12
th
of February. Now from 12
th
of February until today there
was ample time for the contracts of these people to be [got],
for the letters that - For everything
that is held by HR to have been
given to you so that you would come here in a position to run the
matter. You can't come here half
dressed and say to us look, I forgot
this, this. I didn't get this, this, this. I now need since I’ve
heard what the matter
is about, I need to now time to adjourn the
matter. These proceedings [is] supposed to be urgent proceedings.
We’re supposed
to get rid of this matter as soon as it’s
possible so I'm just explaining to your why I am refusing your
application for
adjournment. So you got something else to say?’
[27]
The arbitrator rejected as inadequate reasons proffered by the
applicant, mainly on the basis
that the applicant had ample time to
obtain the employee’s contracts and letters from its Human
Resource in preparation for
the proceedings and further that the
parties had convened a pre-arbitration meeting on the eve of the
proceedings in which common
cause issues were agreed on. In addition,
the arbitrator noted that the proceedings were of an urgent nature.
[28]
Clearly, the arbitrator’s decision not to postpone the
proceedings is rationally connected
with the material before him and
therefore justifiable. He did not exercise his discretion
capriciously or upon any wrong principles,
but he did so judicially.
Thus, he did not commit any gross irregularity as alleged by the
applicant. There is, therefore no basis
for this Court to review his
decision not to grant postponement.
Nature of the dispute
[29]
The applicant’s other contention is that
the
arbitrator misconstrued the nature of the dispute before him. The
dispute referred by the employees was an unfair labour practice
dispute. The facts of the dispute were summarised by the employees in
the request for conciliation form as follows:
‘
The
employer promised to give us fixed term contract of 12 months, the
same as Sthembiso Mageza which will culminate into permanent
employment. The employer owes us stipend for August 2015.’
[6]
[30]
In the aforementioned referral form, the employees provided further
information and stated that although
Ms Sthembiso Mageza started as
intern like them, she was given a fixed term contract.
[7]
Similarly, in the request for arbitration, the issues in dispute were
summarised as follows:
‘
Unfair
labour practice. Ms Sthembiso Mageza (intern) was given fixed term
contract of 12 months, but we were denied the same, though
promised
by the employer.
[31]
The relief the employees sought was “
12 months fixed term
contract (level 9-8), as the one given to Miss Sthembiso Mageza, and
equal treatment moving forward, also get
backpayed.”
The
pre-arbitration minute recorded the issue in dispute to be whether
the employees were entitled to benefits similar to Ms Mageza
as from
1 July 2014 and the relief sought to be “
back payment of the
benefits as of July 2014 and the payment of the benefit until the
expiry date of the contract in August 2016.”
[32]
The arbitrator simply identified the nature of the dispute as an
unfair labour practice. He did not
specify what the unfair labour
practice related to. It is apparent from the referral that the
employees’ dispute related
to the expectation for an
appointment on a 12-month fixed term contracts and/or promotion or
appointment on level 9-8. All that
the employees wanted was to be
appointed on a 12 month fixed term contract like Ms Sthembiso Mageza.
In support of their case,
the employees gave evidence on the various
internship and fixed term contract entered into with the applicant
and how they perceived
they were unfairly treated.
[33]
In relation to Tebogo Poo and Jabulile Mthembu, the arbitrator made a
finding that they were unfairly treated
in relation to promotion and
training and ordered the applicant to adjust their salaries from R3
500 to R12 389.51 backdated for
a period of one year. In relation to
Dikeledi Blaai and Thulisile Skosana, the arbitrator did not specify
the unfair labour practice.
Instead, at the tail of his award, he
made a finding that the applicant committed an unfair labour practice
and ordered that the
applicant adjust their salaries to a higher
level and to pay them back salaries. The basis for this finding is
not apparent.
[34]
The arbitrator seems to have based his findings on a memorandum that
was relied on by the employees,
which talks to the rotation of
interns and the evidence that other interns were offered fixed term
contracts as secretaries in
different offices in terms of which they
were paid salaries aligned to those positions. However, the
arbitrator’s finding
ignores the evidence that the employees’
relationships with the applicant, both as interns and secretaries,
were regulated
by fixed term contracts signed by both parties. The
finding further ignores the fact that a memorandum outlining the
applicant’s
intention to rotate interns is not a policy and
therefore, it does not in itself create a right for the interns to be
rotated,
let alone equating rotation to amount to an unfair labour
practice.
[35]
Of importance though, is that the arbitrator failed to show, in his
award, how the applicant committed
an unfair labour practice, either
relating to promotion, appointment, training or benefits. In so
doing, he failed to make a determination
of an unfair labour practice
and his conduct is grossly irregular.
[36]
The applicant’s further contention was that the arbitrator
incorrectly found the dispute to be
one of salaries and that in
ordering payment of back salary and remuneration the arbitrator
inferred that the applicant owed the
employees salaries. This is a
fair proposition.
[37]
Making an award for the adjustment of the employees’ salaries
and the payment of back salary
in an unfair labour dispute of this
nature, is a clear indication that the arbitrator misconstrued the
nature of the dispute before
him. The dispute before the arbitrator
was whether the employees were entitled to be appointed on a fixed
term contract and whether
they were entitled to the benefits enjoyed
by their colleague, Ms Sthembiso Mageza. It was not whether the
applicant owed the employees
salaries.
[38]
It follows that the arbitrator not only failed to identify the
dispute he was required to arbitrate,
but also misconstrued the
dispute. This resulted in him arriving at an unreasonable decision.
For this reason alone, his award
stands to be reviewed and set
aside. There is no reason for this Court to make a determination in
relation to the remaining grounds
of review.
In
view of the fact that there was no determination of the real dispute
that was before the arbitrator, it is appropriate to
remit the
matter to the second respondent to be heard by a different
arbitrator.
Costs
[39]
I have had regard to the issue of costs and I find that taking into
account the requirements of law
and equity, there should be no order
as to costs.
[40]
In the circumstances, I make the following order.
Order
1.
The arbitration award issued by the third respondent (the arbitrator)
under the auspices of the second respondent, the South
African Local
Government Bargaining Council, dated 10 June 2016 under case number
GPD101519 is reviewed and set aside.
2. Taking account the
delay and history of the matter, it is directed that this matter be
set down for arbitration
de novo
to be heard by a different
arbitrator within 30 days from the date of this order.
3.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Advocate K.A. Tema
Instructed
by:
De Swardt
Vogel Myambo
For
the third respondent: Advocate T.E. Tshoma
Instructed
by:
Semenya
Gwangwa Incorporated
[1]
Act
66 of 1995 as amended.
[2]
(2015) 36 ILJ 1283 (LAC).
[3]
(2017) 38 ILJ 2470 (LAC).
[4]
JA
52/98 ZALAC 11 (1 September 1998).
[5]
2017 (8) BCLR 1039 (CC).
[6]
Index:
SALGBC
record of proceedings, page 18
[7]
Index:
SALGBC
record of proceedings, page 16