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2020
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[2020] ZALCJHB 22
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SAMWU obo Sibiya v Ntimbana NO and Others (JR2181/16) [2020] ZALCJHB 22 (31 January 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
CASE
NO: JR 2181/16
In
the matter between:
SAMWU
obo S SIBIYA
Applicant
And
THOMAS
NTIMBANA
N.O
First
Respondent
SOUTH
AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
Second
Respondent
EMALAHLENI
LOCAL MUNICIPALITY
Third
Respondent
Heard:
29 January 2020
Judgment
delivered: 31 January 2020
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the first
respondent (the arbitrator).
[2]
The material facts are set out in the award under review and do not
warrant repetition
here. It is sufficient to state for [resent
purposes that the applicant union and the third respondent (the
municipality) were
in dispute about a refusal to place one of the
union’s members, Mr. Sibiya, in a higher post level in a new
organizational
structure following a merger of municipalities. A
collective agreement was reached to regulate the placement of
employees into
the new structure. That agreement provides that a
placement must not lead to demotion, but nowhere is the concept of
promotion
expressly incorporated into the agreement. The employee was
engaged at post level five. The new structure did not have a post
level
four. The employee expected to be moved to post level four, and
in the absence of post level four, at least to post level three.
The
principle applied was that if a post level occupied by an employee
was removed, the affected employee was moved to the next
post level
in the new structure. It was not disputed that none of the employees
on post level five were moved up.
[3]
The arbitrator’s award records that the basis of the employee’s
challenge
was that other employees were placed in different posts
pursuant to the new structure and that he was among those who
remained
in their post levels. The municipality’s case was that
the placement of employees in the new structure had been properly
managed by all parties concerned in terms of the signed memorandum of
agreement, and that the employee had not been unfairly treated.
[4]
The arbitrator concluded that there was no evidence that the employee
had been unfairly
treated. In particular, he held that when the new
organizational structure was developed, the objective was not to
promote employees,
but too respond to service delivery challenges
within the municipal area, in a process that was inclusive of all
parties, including
the employee’s trade union. The policy
provided for placement in a similar level, or the next immediate
level in the directorate,
with no guarantee of placement in a higher
post level. Further, it was common cause that there was no post level
four in the new
structure and that no employee in post level five was
placed at a higher level. In other words, the employee was not the
only one
who remained at the same level in the new structure. In
these circumstances, there was no evidence that the municipality had
exercised
its discretion capaciously or for invalid reasons and there
was no basis to interfere with the placement committee’s
prerogative
or its decision. What the employee sought was ‘promotion
through the back door’; he had thus failed to establish that
he
had been unfairly treated.
[5]
The test to be applied is one that recognises and reinforces the
distinction between
a review and an appeal. This court must be
particularly cautious not to blur the line, especially where the
grounds for review
smack of no more than a disagreement with the
arbitrator’s findings. This court is entitled to intervene if
and only if the
arbitrator’s decision is one that falls outside
of a band of decisions to which a reasonable decision-maker could
come on
the available material. In
Head
of Department of Education v Mofokeng & others
[2015]
1 BLLR 50
(LAC)
,
the LAC said the following:
[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
and this court in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and 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…
[32]
…Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in
the reasoning
of the arbitrator, evidenced in the failure to apply the mind,
reliance on irrelevant considerations or the ignoring
of material
factors etc. must be assessed with the purpose of establishing
whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an unreasonable result.
Lapses in lawfulness, latent or patent irregularities
and instances
of dialectical unreasonableness should be of such an order
(singularly or cumulatively) as to result in a misconceived
inquiry
or a decision which no reasonable decision-maker could reach on all
the material that was before him or her.
[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, if 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.
[6]
In other words, arbitrators are allowed to be incorrect, and this
court is not entitled
to intervene only because it would have come to
a different conclusion on the same evidence. What matters is whether
the conclusion
the arbitrator reached on the evidence is so
unreasonable that no reasonable decision-maker could come to the
decision he did.
[7]
I am unable to find, on the papers before me, that the arbitrator
committed any reviewable
irregularity either in the conduct of the
proceedings, or that the conclusion to which he came was so
unreasonable, having regard
to the evidence, that no reasonable
decision-maker could come to that conclusion. The arbitrator clearly
appreciated the issue
that he was called on to decide, he considered
the evidence and came to a rational and reasonable conclusion. There
is no basis
to interfere with the arbitrator’s decision.
[8]
In so far as the union seeks to review the arbitrator’s award
on account of
the fact that the arbitrator had failed or refused to
order the production of documents that the union had requested, there
is
no merit in this submission. The record indicates an exchange
between the parties’ representatives and the arbitrator prior
to the commencement of the proceedings on documents to be submitted,
and two bundles were identified. At the conclusion of the
proceedings, the union’s representative raised the issue of
documents. The arbitrator respondent by stating that he had canvassed
the issue of documents ta the outset and that there had been
agreement on the documents to be sued. The representative’s
response was “Okay, no problem”. The same response was
given to the arbitrator’s statement that other documents
that
had not been part of the proceedings could not be taken into account.
To the extent that the union contends that it had issued
subpoenas in
respect of certain documents, this issue was never pursued before the
arbitrator. In particular, the union did not
seek to enforce any
subpoenas that may have been issued in relation to any documents that
it required. It is not open to the union
now to seek to make out a
case for the disclosure of documents, or to seek a review on the
basis of matters that the arbitrator
was never called on to decide.
[9]
In so far as costs are concerned, the court has a broad discretion to
make orders for costs
according to the requirements of the law and
fairness. In general, the court is reluctant to make orders for costs
in circumstances
where the parties to a dispute are collective
bargaining partners, and where the order may prejudice the collective
bargaining
relationship. There is no evidence of the latter in the
present instance. The review application has no merit. The employee’s
real complaint is that he failed to be placed in the position he
wanted – as the arbitrator put it, he was seeking to be
promoted through the back door. That the union could advance this
case on the employee’s behalf, it having been a party to
the
memorandum of understanding and its implementation, is unfathomable.
The union ought properly to have declined to act on Sibiya’s
behalf. In my view, the interests of the law and fairness are best
satisfied by the application of the rule that costs ought to
follow
the result.
I make the following
order:
1.
The application is dismissed, with costs.
André van Niekerk
Judge
REPRESENTATION
For
the Applicant: Adv. T Manda instructed by Maenetja Attorneys
For the Respondent: Adv.
A Tema instructed by De Swart Myambo Attorneys