IN THE LABOUR COURT OF SOUTH AFRICA
Sitting in Cape Town
Case No: C325/98
In the matter between :
COUNTY FAIR FOODS (Pty) Ltd Applicant
and
THE COMMISSIONER FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
MBULELO BIKWANA Second Respondent
DEON VISAGIE Third Respondent
BRIAN ARENDSE Fourth Respondent
PATRICK CLAASEN Fifth Respondent
JUDGEMENT
ZONDO J :
Introduction
[1] County Fair Foods (Pty) Limited, the applicant in this matter, has brought
an application against an arbitration award which was issued by the second
respondent, a commissioner for the Commission for Conciliation, Mediation
and Arbitration, the first respondent in a certain dismissal dispute. The award
was issued in favour of three erstwhile employees of the applicant who had
been dismissed by the applicant. Those former employees of the applicant are
the fourth, fifth and sixth respondents in these proceedings. The three were
members of the Food and Allied Workers Union, ( “the Union” ) the third
respondent in this matter.
The relief being sought
[2] The order which the applicant seeks in terms of its notice of motion is
one:
1. condoning the late filing of the review application in respect of the
ruling on legal representation made by the second respondent.
2. Reviewing, correcting and setting aside representation, as well as the
award, made y the second respondent in the dismissal dispute between the
applicant and the fourth, fifth and sixth respondents.
3. Directing that the second respondent did not have jurisdiction to arbitrate
the dismissal dispute between the applicant and the fourth, fifth and sixth
respondent .
[3] The fourth, fifth and sixth respondents were employed by the respondent.
The respondent is involved in the “Chicken industry”. The fourth, fifth and
sixth respondents, who will herein after be referred to as “employee
respondents”, were working on a night shift on a night of the 3rd July to the
morning of the 4th July 1997. Their shifts appears to have commenced at about
16h00 or so on the 3rd July 1997 and went up to 01h40 on the 4th July .
[4] Apparently they were asked to work but they refused. There were seven
other employees in their shift who were also asked to work over time who also
refused while the employee respondents in this matter were members of the
Food and Allied Workers Union, the other seven employees belonged to another
union. Following upon this refusal to work, all the ten employees who had
refused to work overtime including the employee respondents were dismissed
after being found guilty.
[5] The other union to which seven of the employees belonged had an
arbitration conducted under the euspices of the first respondent in respect to the
dismissal dispute between itself and its members, on the one hand, and the
applicant. That arbitration was conducted by one Mr Maritz, a part time senior
commissioner of the first respondent The applicant took part in that arbitration.
For convenience I will refer to that arbitration, where it is necessary to refer to
it, as the Maritz arbitration.
[6] In that application the applicant applied for permission to be legally
represented in the arbitration. The union representing those seven employees
opposed the applicant’s request for permission for legal representation. After
hearing argument Commissioner Maritz granted the applicant’s request for legal
representation. A reading of his award does not disclose that Commissioner
Maritz gave any reasons for permitting the applicant to be legally represented.
[7] The arbitration then proceeded on the fairness or otherwise of the
dismissal of the seven employees. Commissioner Maritz later issued an award
in which he concluded that the applicant had proved that the dismissal was fair.
Pursuant to Commissioner Maritz’s ruling on legal representation for the
applicant the applicant had been represented by an attorney in those arbitration
proceedings. It would appear that the employees involved in that matter were
represented by a union official.
[8] The employee respondents in this matter and their union referred their
dismissal dispute to arbitration separately. The second respondent was
appointed to arbitrate the dispute under the auspices of the first respondent. By
the time the employee respondents’ dismissal dispute came before the second
respondent for arbitration, the Maritz arbitration had already been completed
and Commissioner Maritz had issued his award in the other dismissal dispute.
[9] The applicant turned up at the arbitration before the second respondent
[9] The applicant turned up at the arbitration before the second respondent
with an attorney moved an application before the second respondent for
permission for the applicant to be legally represented as had been done in the
Maritz arbitration. The employee respondents were represented by a union
official or organizer in the arbitration before the second respondent.
[10] The applicant’s application for permission to be legally represented was
opposed by the union and employee respondents’ representative. Argument
was heard. Later the second respondent gave a ruling refusing the applicant’s
request for legal representation. He gave his reasons for not permitting such
representation. Thereafter the first respondent fixed the 23rd as a date on which
the arbitration would proceed on the merits. All parties were given due notice of
the date of the arbitration.
[11] Aggrieved by the second respondent’s decision refusing its application
for legal representation, the applicant decided that it would make an application
to have that ruling reviewed and set aside. On the 22nd June 1998 the applicant
addressed a letter to the convening senior commissioner of the first respondent
in the Western Cape in which it complained about the second respondent’s
ruling and asked that the senior commissioner should effectively remove the
first respondent from the matter and appoint another commissioner to deal with
it. The applicant threatened to institute review proceedings should its request
not be granted.
[12] The senior commissioner refused to have the case removed from the
second respondent and advised the applicant’s then attorneys of the legal
position which they should have known, namely, that the first respondent could
not review rulings of its own commissioners and that only the Labour Court
could review the second respondent’s ruling. Against the above background the
applicant’s then attorneys addressed a letter to the senior commissioner saying
they had been instructed by the applicant to advice that the applicant “will not
be attending the arbitration proceedings today and, in the light of previous
correspondence, will be instituting review proceedings in respect of
Commissioner Bikwani’s refusal to permit legal representation in this
matter as well as your refusal to assign an alternative arbitrator to hear the
matter”. The last sentence of the letter says : “Our client apologises for any
inconvenience this may cause” .
[13] The second respondent proceeded with the arbitration on the morning of
the 23rd June 1998. At the beginning of his written award the first respondent
recorded that he had received a copy of the letter which the applicant’s
recorded that he had received a copy of the letter which the applicant’s
attorneys had sent to the senior commissioner which said the applicant would
not attend the arbitration. The second respondent heard evidence and,
apparently, reserved his award and only handed it down around the 8th July
1998. The second respondent found the dismissal unfair and ordered the
applicant in its absence to pay certain amounts of compensation to each of the
three dismissed employees. The second respondent gave written reasons for his
award.
Review
[14] The first issue which this review is directed at is to review the second
respondent’s ruling on legal representation. The provisions of the Labour
Relations Act, 1995 (Act No 66 of 1995) governing legal representation in
arbitrations under the CCMA involving dismissals for conduct or capacity have
been dealt with extensively in Afrox Ltd v Adv. Laka & Others . . . , an as yet
unreported judgement which I gave recently in this Court. For that reason I do
not propose considering those provisions at any length in this matter. It suffices
to emphasise the point which is made in that judgement that the party seeking
legal representation in circumstances where the other party or parties to the
dispute have not consented to legal representation must seek to persuade the
commissioner to conclude that it would be unreasonable to expect it to deal with
the dispute without legal representation. Once the commissioner has so
concluded, then the party becomes entitled to legal representation. At that stage
there is no discretion. This means that the commissioner cannot say : I have
concluded that it would be unreasonable to expect you to deal with the dispute
without legal representation but, nevertheless, I refuse to grant legal
representation. In fact to do so would be unreasonable.
[15] The applicant deals extensively with the issue of legal representation in
its founding affidavit. It deals with in, among others, paragraphs 24.1 37 as
well as from par 64.1 63.20 of the founding affidavit. I do not propose to deal
in this judgement with all the individual complaints which the applicant raises
in this judgement with all the individual complaints which the applicant raises
about the second respondent’s ruling because to do so would make this
judgement unduly long. This is not to say that I have not considered them.
Indeed I have. The respondent would have had to show in this proceedings not
only that on the material which was placed before the second respondent there
was enough for the second respondent to conclude that it would have been
unreasonable for him to expect the applicant to deal with the dispute without
legal representation but also that the second respondent’s (implied) finding that
it would not be unreasonable in this case to expect the applicant to deal with the
dispute without legal representation fell within the grounds of review that it
relies upon in this matter.
[16] The applicant has failed to show even that the material that was before
the second respondent was enough to justify the conclusion that it would have
been unreasonable to expect it to deal with the dispute without going into
details, bearing in mind the factors listed in sec 140(1)(I) (iv), I can say the
following :
(a) with regard to the applicant’s managers who were to deal with the
arbitration if legal representation was not allowed, the applicant only said
that had no experience in arbitrations without saying for example what
their educational and other qualifications were this left the possibility that
they might well have such a high level of academic education that they
would either need very little “coaching on how to conduct an
arbitration or that they would be able to sufficiently represent the
applicant even without further training e.g. they might have had
legal qualifications or some other university education”.
(b) the applicant did not say that the representative of the employees in
the arbitration had any experience in arbitrations or what experience if
any such representative had; the effect of this is that the second
respondent could either not compare the two parties’ representatives or if
he could, he was not able to conclude that the representative of the
employees was such that to place the potential representatives of the
employees was such that to place the potential representatives of the
applicant at a disadvantage.
(c) despite the applicant’s argument that there were complex issues of
law in this dispute relating to the dismissal of the employees, quite
clearly, there were no complex issues at all; employees were asked to
work overtime; they refused and, after disciplinary inquiries, they were
dismissed. If one has regard to the employees’ evidence in the arbitration,
their case was simply that the applicant asked them to work overtime too
late about 10 or so minutes before they were to knockoff.
(d) there was no complexity in the facts of the dispute.
(e) the dispute was not of any public interest.
In the light of the above I have no hesitation in concluding that the second
respondent be faulted in refusing legal representation for the applicant in the
arbitration. The application also criticised the second respondent’s ruling in the
light of the fact that Commissioner Maritz had allowed applicant legal
representation. The answer to this is three fold :
(1) each commissioner had to decide for himself if it would be
unreasonable to expect the applicant to deal with the dispute
without legal representation and it can be expected that the two
commissioners could well come to different conclusions on the
same issue.
(2) as Commissioner Maritz did not give reasons for his ruling allowing the
applicant to be legally represented, the second respondent had no way of
ascertaining from the award how Commissioner Maritz came to conclude that
the applicant be allowed legal representation.
(3) It is Commissioner Maritz’s rather than the second respondent’s one
which appears to be strange in the light of the facts of the case there was no
reason why the second respondent should have sought to give a ruling similar to
that of Commissioner Maritz.
Jurisdiction of the CCMA
[17] One of the points raised by the applicant is that the second respondent
did not have jurisdiction because the refusal of the employee respondent to
work constituted a strike because it was coupled with a demand. There is
absolutely no merit in this submission even when one has regard to what the
applicant says in this regard in the founding affidavit. The findings of the
disciplinary enquiries do not support by the allegations relating to the reasons
for dismissal which is what the second respondent could look at, or, had to look
at, in determining whether this was a matter for arbitration by the CCMA or one
for adjudication. This was a dismissal for alleged misconduct which did not
come anywhere near to constituting a strike. Accordingly the CCMA had
jurisdiction to arbitrate the dispute.
Should the Second Respondent have proceeded with the arbitration on the
23rd June 1997
[18] One of the applicant’s grounds on which it seeks to have the second
respondent’s award reviewed and set aside is the fact that the second respondent
proceeded with the arbitration on the 23rd June 1998 when he knew “that the
reasons for the applicant not attending the arbitration related to the fact
that applicant intended taking the second respondent’s ruling not to allow
the applicant legal representation on review” .
[19] I find it very strange that the applicant should have the temerity to
criticise the second respondent for proceeding with the arbitration on the 23rd
June in the applicant’s absence because it was the applicant and its then
attorneys who advised the senior commissioner that the applicant would not
attend the arbitration. The applicant did not apply for the postponement of the
arbitration proceedings pending the outcome of the review application it was
intending to make. The applicant’s attorneys simply informed the CCMA that
the applicant was not going to attend the arbitration. It was only in the letter sent
the applicant was not going to attend the arbitration. It was only in the letter sent
by the applicant that an enquiry seemed to be implied on whether or not the
applicant should attend. But the re is simply no basis to criticize the second
respondent. He was fully entitled to proceed and deal with the dispute when no
application was made for a postponement of the proceedings before him.
[20] It is the applicant that needs to be criticised her what appears to me to
have not only an obstructionist approach an attitude that the arbitration held on
its be held on its terms. First it sought legal representation. When this was
refused in circumstances which not only did not disclose any bias on the
second respondent’s part but seemed to be perfectly legitimate the second
respondent sought to have that ruling overturned by the senior commissioner
something the senior commissioner had no power to do but also it sought to
have the second respondent removed from the case altogether. For what
reason.? Just because it did not like the ruling he had made on its request for
legal representation!
[21] The applicant’s founding affidavit is replete with many other criticisms
which the applicant levels against the award of the second respondent about
allegedly not applying his mind to various aspect of the case. I do not intend to
deal with them in any manner other than to say most, if not all, of them have no
foundation and would in any event, be the fruits which a party which decide not
to take part in proceedings must reap and about which a party such as the
applicant should not be heard to complain.
Reliance on the agreement of 4 October 1995
[22] The foundation of the second respondent’s finding that the dismissal of
the employee respondents was unfair was that the applicant had, contrary to its
obligations in terms of a wage agreement dated the 4th October 1995, failed to
have “prior consultation” with the employee respondents before they were
required to work overtime.
[23] The wage agreement of the 4th October 1995 was annexed as annexure
“R” to the founding affidavit. The first two sentences of clause 4 of that
agreement read thus : “Requirements may neccesitate members to work
agreement read thus : “Requirements may neccesitate members to work
morethan the required 46 hours per week. Employment with company is
subject to the member availing themselves (sic) for such overtime, after
prior consultation as required and allowed in legislation” .
[24] The applicant submits that the wage agreement had lapsed by the time of
the incident which gave rise to the dismissal of the employee respondents in this
case. The incident occured on the morning of the 4th of June 1997. The wage
agreement had been concluded on the 4th October 1995 and it was to endure
until 30 September 1996. The applicant says that the agreement was to endure
up to the 30th September 1996 appears ex facie the agreement and there is no
reason why the second respondent did not see this. The clause which says thisis
the very first clause of the wage agreement.
[25] The next question which arises is whether the second respondent :
committed miscunduct in relation to the duties of the commissioner AS AN
ARBITRATOR (SEC 145(2)(AA