IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no. J 1385/98
In the matter between:
TRANSNET LTD
Applicant
AND
HOSPERSA 1st
Respondent
STEMMET JP (N.O) 2nd
Respondent
JUDGMENT
MLAMBO J.
1. This is an application for review of second respondent’s award (“Stemmett”).
Stemmett was requested by the parties to arbitrate a dispute between them. In the
resultant arbitration proceedings Stemmett acted in terms of the Arbitration Act
no 42 of 1965 as amended. (“the Arbitration Act”).
2. The first issue the Court had to consider was a condonation application made by
the applicant. Miss Kyriakou, for Hospersa argued that it was not competent for
this court to entertain this condonation application. She argued that as this review
application was instituted in terms of section 33 of the Arbitration Act that section
did not make provision for the condonation of applications brought beyond the
period set out therein. Section 33(2) of the Arbitration Act provides that:
“An application pursuant to this section shall be made within six weeks after
the publication of the award to the parties: provided that when the setting
aside of the award is requested on the ground of corruption, such application
shall be made within six weeks after the discovery of the corruption and in
any case not later than three years after the date on which the award was
published.”
She argued that section 145(1)(a)&(b) of the Labour Relations Act no. 66 of 1995 (“the LRA”) was identical to section
33(2) and also contained no provision catering for the condonation of late
applications.
3. This court derives its jurisdiction to entertain matters instituted in terms of the
Arbitration Act in terms of section 157(3) of the LRA which provides that:
“Any reference to the court in the Arbitration Act, 1965 (Act no.42 of 1965),
must be interpreted as referring to the Labour Court when an arbitration is
conducted under that Act in respect of any dispute that may be referred to
arbitration in terms of this Act.”
It is clear therefore that section 157(3) of the Act accords jurisdiction to this court
to entertain matters brought to it in terms of the Arbitration Act. That being the
case the court in considering matters under the Arbitration Act, acts in terms of its
powers set out in section 158 of the Act.
4. Section 158(1)(f) accords this court the power to condone the late filing of any
document or the late referral of any dispute to the court. On that basis it is
competent for this court to entertain a condonation application relating to a matter
brought to it in terms of the Arbitration Act. In this regard the empowering act is
the LRA being the act that creates this court with jurisdiction and power to
entertain certain specific matters. In Transport & General workers Union &
others v Hiemstra N.O & another (1998) 19 ILJ 1598 (LC) Sutherland AJ
considered a condonation application for non compliance with section 33(2). He
refused condonation on the basis that no good cause had been shown not because
the court lacked the necessary competence to grant condonation.
5. In now consider the application fo condonation. From the applicant’s founding
affidavit it appears that the reasons for the late filing of the application are:
5.1 the award was received on 20 April 1998.
5.2 discussions were held by Mr Gopolang Modise (“Modise”) with the applicant’s
line management as to the way forward and these discussions were concluded
roundabout the 22 May 1998.
5.3 thereafter the first respondent (“Hospersa”) was informed by the applicant that it
intended to make application for the review and setting aside of the award.
5.4 as a result of the illness and absence of the applicant’s attorney, Mr Coetzee, the
application was filed approximately one month late.
6. In an application for condonation it is trite that good or sufficient cause must be
shown. Relevant factors are the degree of lateness, the explanation therefor, the
prospects of success and sometimes the importance of the case. See Melane v
Santam Insurance Co. Ltd 1962 (4) SA 53 (A). Considering the applicant’s
submissions in this regard and exercising the discretion this court possesses in
such matters, I am of the view that the applicant has succeeded in showing good
cause for its default. There is no suggestion that the applicant had deliberately
failed to take action or deliberately set out to frustrate the finalisation of this
matter. In the court’s view condonation appears justified under the circumstances.
7. I turn now to the other preliminary issue. The applicant characterised its
application as “Notice of application for a review section 158(1)(g) and 145”. Mr
Jammy, for the applicant submitted, correctly, that it was clear that what was
intended by the applicant was to reflect that it was an application in terms of
section 33 of the Arbitration Act. He submitted further that if Hospersa
considered the mischaracterisation in the applicant’s papers as fatally defective to
the application, then a formal amendment of the heading was necessary. In my
view mischaracterisation of the nature of the review is not fatal. This court has to
look beyond the legal label and consider the substance of the application. To look
no further than the heading would be unduly formalistic.
8. I now turn to the facts. The applicant and Hospersa are bound by the provisions of
the Transnet Bargaining Council (“the Council”). In compliance with the
provisions of the Constitution of the Council the parties referred a dispute between
them to the Independent Mediation Services of South Africa (“Imssa”) to be
resolved in terms of the arbitration Act. The brief history of the dispute is that
during June 1994 Maxie de Kok (“De Kok”), a member of Hospersa, applied for
two positions advertised by the applicant. These positions were that of Assistant
Manager and Professional Officer, both in the Training and Development
Department. The selection committee that interviewed De Kok recommended her
for appointment as an Industrial Social Worker. She was however offered the
position of Professional Officer Human Resources. This position was graded as a
junior officer whereas that of Industrial Social Worker was graded at level 610 at a
status of middle management i.e. higher than the position offered to De Kok.
9. De Kok accepted the position offered and signed an agreement setting out her
benefits and conditions of employment. She was officially appointed on 1
December 1994. During the course of her employment a dispute arose relating to
her appointment. Her union, Hospersa, contended that the applicant had
committed an unfair labour practice by appointing De Kok to a junior position
instead of a middle management position.
10. The dispute was initially referred to the Council on 24 June 1997 where the nature
of the dispute was characterised as follows:
“Nature of dispute:
Ms. M. De Kok is employed as a Professional Officer (Junior Grade) whilst
doing the job of social worker (Senior Grade/Middle Management) at the
Spoornet office in Kimberly. She is employed on a very junior level whereas
her colleagues and other social workers employed at Spoornet are performing
the same functions with equivalent/lower qualifications on a level of middle
management with the appropriate salary. A precedent has been set in that a
colleague with a similar problem was promoted to middle management after
taking the employer to the Industrial Court (NHK 11/2/3675).”
11. Conciliation failed and the parties referred the dispute to Stemmett to resolve
through arbitration. In the arbitration agreement the issue for decision and the
arbitrator’s powers are described thus:
“1. The issue which the arbitrator will be asked to decide is whether, in the
arbitrator’s opinion based on the evidence presented in the arbitration;
“Spoornet Kimberly committed an unfair labour practice in terms of the
Spoornet policy in failing to appoint Ms De Kok to a middle management
(610) position in the grade of Industrial Social Worker on 1 December 1994
at Spoornet Kimberly”
2. The arbitrator shall have the power to make an award in which s/he orders
Spoornet Kimberly:
2.1 to appoint Ms De Kok to a middle management position (610) in the grade of
Industrial Social Worker retrospectively from 01 December 1994 in terms of
Spoornet Policy;
2.2 make payment to Ms De Kok of all monies she would have earned had she
been so appointed within one month of the award;
2.3 if the company is unable to place Ms De Kok in a position of the same status
2.3 if the company is unable to place Ms De Kok in a position of the same status
as Industrial Social Worker at level 610 in the new structure, she will accept a
severance package in terms of the existent Spoornet Policy operative from a
date two months after the date of the award.”
12. Stemmett issued his award on 17 April 1998 in which he made the following
findings:
“After considering all the evidence and the arguments submitted to me at the
arbitration, I find, on a balance of probabilities, that the company has treated
Ms De Kok unfairly by appointing her as a Professional Officer in stead of an
Industrial Social Worker at 610 level on 01 December 1994, for the following
reasons:
1. One of the positions Ms De Kok applied for in June 1994, was that of
Assistant Manager which is a Middle Management position.
2. Ms De Kok’s selection committee recommended her appointment at middle
management level and this was supported by the manager Human Resources
in Kimberly.
3. The company was not consistent in that it appointed some Industrial Social
Workers at middle management level and others at junior officer level.
4. Ms De Kok undertook and performed the functions of Industrial Social
Worker and she performed them very well.
5. The post of Industrial Social Worker is evaluated at middle management
(610) level. The company’s approach to link the grading of Industrial Social
Workers to their individual performance, is contrary to the Hay evaluation
system.
6. The company’s Assistant Manager (Training) in Kimberly conceded in
December 1994 that the responsibility and competency of Industrial Social
Workers justify their appointment at Middle Management level.
7. Ms De Kok accepted her appointment as Professional Officer without
knowledge of the full implications of this grade.
8. In respect of overtime, Ms De Kok was treated as if she was a middle
Manager.”
13. The applicant takes issue with Stemmett’s findings. Its complaints are essentially
that:
13.1 Stemmett applied schedule 7 of the LRA which was not applicable at the date of
appointment of De Kok on 1 December 1994.
13.2 Stemmett made a mistake of law in holding that De Kok was entitled to fair
treatment prior to her appointment which, it is submitted is contrary to the
provisions of the 1956 LRA;
13.3 Stemmett exceeded his powers when he considered the inconsistent application of
the applicant’s appointment policy in force at the time, as, this issue fell outside
the arbitration agreement between the parties.
14. The provision of section 33 of the Arbitration Act are similar to the provisions of
section 145 of the LRA. The Labour Appeal Court ruled in Carephone (Pty) Ltd
v Marcus N.O & Others (1998) 19 ILJ 1425 (LAC) that arbitration awards of
the Commission can only be reviewed in terms of section 145. In that judgment
the Labour Appeal Court noted that the judicial functions of the Commission and
other organs of the state, though not transforming these bodies into courts of law,
remained administrative action within the ambit of the administrative justice
section of the Constitution.
15. Froneman DJP noted that section 33 and 23(b) of schedule 6 to the Constitution
introduced a requirement of rationality in the merit or outcome of the
administrative decision going beyond procedural impropriety. In paragraph 36 of
the judgment Froneman DJP stated:
“In determining whether administrative action is justifiable in terms of the reasons
given for it, value judgments will, almost inevitably, involve the consideration of
the ‘merits’ of the matter in some way or other. As long as the judge determining
the issue is aware that he or she enters the merits not in order to substitute his or
her own opinion on the correctness thereof, but to determine whether the outcome
is rationally justifiable, the process will be in order.”
In my view the standard test of review of awards of the CCMA as set out by the
Labour Appeal Court applies equally to awards issued in terms of the Arbitration
Act. One reason is the similarity between section 145 of the LRA and section 33
of the Arbitration Act. The other reason is that inconsistencies and confusion
could prevail if this court were to apply different standards of review.
16. In casu the primary complaint against Stemmett is that he misconstrued the nature
of the duty upon him and misapplied the law to the question that he was requested
to consider. As a consequence Stemmett exceeded his powers and commited a
gross irregularity, so it was argued, by Mr Jammy, the applicant’s counsel. The
case argued by Mr Jammy is that Stemmett was empowered to consider the
situation as it prevailed on 1 December 1994. It was contended that Stemmett
went further than he was empowered i.e. he considered what the applicant did
after 1 December 1994 and the responsibilities given to De Kok etc.
17. In my view it is not correct that the basis of Stemmett’s ruling is based on his
consideration of the functions and responsibilities given to De Kok subsequent to
1 December 1994. At most this can be viewed as one of his reasons for arriving at
his ruling. It will be recalled that he specifically ruled against an attempt by
Hospersa to include the period after 1 December 1994 within the ambit of the
arbitration. That however is as far as the criticism of his reasoning ends. The
other reasons as stated are immune from any challenge and in my view, are not
tainted by the reasons referred to above. In other words even if one were to
discount this one reason the other reasons can stand on their own and are
sufficiently rational within the requirements of Constitutional constraints. It is
clear that he considered all the evidence placed before him and thereafter came to
a decision. I therefore find no merit in the submission that Stemmett exceeded his
powers in a manner that would justify interference with his award. To interfere
with his award on the basis of that reason alone would amount to entering the
merits to substitute my decision for his, something foreign to reviews of this
nature.
18. The other submission is that Stemmett committed a gross irregularity in that he
misapplied the law. This submission is based on the fact that in December 1994
when De Kok applied she was not an employee as defined in the 1956 LRA. That
being the case Stemmett could not therefore have regarded her as an employee
within the meaning of the present Act. In view of the legal position pertaining to
the 1956 LRA it was not possible to commit an unfair labour practice against a
non employee a situation covered by the present Act. In view of this, so the
argument went, Stemmett misdirected himself when he applied the provisions of
the present Act to De Kok’s situation in December 1994 as the 1956 LRA applied
then.
19. The arbitration agreement between the parties empowered Stemmett to decide
whether “Spoornet Kimberly committed an unfair labour practice....” . On the
face of it the agreement empowered him to consider the evidence and decide
whether an unfair labour practice had been committed. The agreement also
empowered him that in the event that he found that Spoornet had in fact
committed an unfair labour practice he was to order Spoornet to appoint De Kok
to a middle management position and that she be paid all monies she would have
earned had she been correctly appointed on 1 December 1994.
20. To me the power to consider whether an unfair labour practice had been
committed amounted to nothing more than empowerment to consider whether fair
treatment had taken place or not. The agreement could easily have empowered
him to consider if De Kok had been fairly treated at the time of her appointment.
In essence the enquiry is the same whether the words unfair labour practice were
used or not. In fact as it turns out nowhere in the award does Stemmett use the
phrase “unfair labour practice” but instead he says “I find on a balance of
probabilities that the company treated Ms De Kok unfairly...” That to me, is
what he was empowered to consider.
21. Hospersa prosecuted the dispute in terms of the present Act hence this court has
jurisdiction to entertain it. One also assumes that the parties had in mind that the
present Act would apply to Stemmett hence the use of the phrase “unfair labour
practice” in the agreement. Furthermore it does not seem that it was argued before
Stemmett that the present Act was not applicable. This could not be argued
because the effect thereof would have been be to divest Stemmett of any
jurisdiction and power to arbitrate the dispute. In my view therefore Stemmett did
not misapply the law. He simply considered the dispute within the four corners of
the arbitration agreement.
22. The applicant also criticized Stemmett for finding that its appointment policy was
inconsistent. It is so that Stemmett was not empowered to consider the policy
itself. When he did so it was not to pass judgment on it but to see how it was
applied regarding De Kok. The fact that he found that the policy was inconsistent
does not detract from what he had to consider. Frankly I do not see how he could
have considered the issue before him without also considering the policy.
23. Considering the whole matter I am of the view that it cannot be said that Stemmett
misconceived the nature of the whole dispute and that the applicant did not have
the benefit of a fair trial. In my view his award is appropriate and cannot be
faulted on any basis to justify any interference by this court. In the circumstances
I make the following order:
1. The application for review is dismissed with costs.
MLAMBO J
Date of judgment: 12 February 1999.
For the applicant: Mr P. Jammy instructed by Hofmeyer Herbstein Gihwala Cluver & Walker Inc.
For the 1st respondent: Ms A Kyriakou of Hospersa.