IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG Case No: J 2644/98
In the matter between:
GAUTENG DEPARTMENT OF EDUCATION Applicant
and
PATELIA, EBRAHIM First Respondent
COETZEE, S.M. Second Respondent
THE EDUCATION LABOUR RELATIONS COUNCIL Third Respondent
JUDGMENT
SEADY,AJ
[1] This is an application to set aside an arbitration award made by the First
Respondent (the arbitrator) on 13 August 1998. The application is brought under
section 33 of the Arbitration Act, 42 0f 1965. Section 157(3) of the Labour
Relations Act, 66 of 1995 (“the Act”) gives the Labour Court jurisdiction to hear
the application.
[2] The arbitration was conducted under the auspices of the Education Labour
Relations Council (“the ELRC”), a body deemed to be established as a bargaining
council in terms of section 37(3)(b) of the Act. A collective agreement concluded
by the ELRC, Resolution 7 of 1977, prescribes that disputes about unfair
dismissals must ultimately be resolved by arbitration. The arbitrator is appointed
from an approved panel and the arbitration is conducted in terms of an agreed set
of rules. The parties before this Court were in agreement that this being a private
arbitration, the award falls to be reviewed in terms of section 33 of the Arbitration
Act.
[3] I am not called upon to decide whether the traditional, narrow grounds for
review articulated in section 33 have been expanded by operation of the
Constitution of the Republic of South Africa, 108 of 1996 (“the Constitution”). In
the circumstances I need not decide whether the ELRC or any other bargaining
council is an organ of state as defined in section 239 of the Constitution. Neither
must I decide whether arbitrations over unfair dismissals conducted under the
auspices of a bargaining council are voluntary or compulsory in nature. Whether
they are judicial proceedings or administrative action within the meaning of
section 33 of the Constitution is similarly irrelevant to a determination of the
issues before me. The Applicant does not rely on the test articulated by the Labour
Appeal Court in Carephone (Pty) Ltd v Marcus NO and Others (1998) 191 ILJ
1425 to set aside the arbitrator’s award. Its submission is that the award should be
set aside on the grounds that the arbitrator exceeded his powers as contemplated
by section 33(1)(b)of the Arbitration Act, narrowly construed.
[4] The background facts to this application are as follows. The Second
Respondent was employed as a therapist by the Gauteng Department of Education
( the Applicant). For four years she was engaged in terms of a temporary contract
of employment. Every three months the contract was renewed on the same terms
and conditions. Although appointed on a post level 1 position she performed the
tasks of a post level 3 employee, for which she received an acting allowance. In
September 1997 the Second Respondent unsuccesfully applied for a permanent
post level 3. Thereafter she continued to perform as a post level 3 employee.
post level 3. Thereafter she continued to perform as a post level 3 employee.
Prompted by the abolition of the acting allowance, Second Respondent lodged a
grievance in which she claimed entitlement to a permanent appointment at post
level 3. In response to this grievance, the Applicant offered her permanent
employment (to which she was entitled in terms of Resolution 6 of 1996, an
agreement of the ELRC). However, the employment offered was at post level 1.
The Second Respondent was dissatisfied, resigned, claimed to have been
constructively dismissed and processed her unfair dismissal dispute in terms of
Resolution 7 of 1977.
[5] The arbitrator’s terms of reference were formulated in accordance with the
standard rules recorded in Resolution 7 of 1977. They are widely formulated,
calling upon the arbitrator “to arbitrate any dispute referred to him and to award a
remedy which he considers fair and/or appropriate in order to settle the dispute”.
[6] The arbitrator found that the Second Respondent had been dismissed by
the Applicant and that the dismissal was unfair. He determined that the Second
Respondent be appointed to a level 3 post on a permanent basis.
[7] The Applicant’s submission is that the arbitrator failed to take into account
the processes by which posts are established and filled in the Gauteng Department
of Education. Sections 3 and 4 of the Educators Employment Act, 1994 provides
that posts for educators will be established by the executive council. An
agreement of the ELRC, Resolution 1 of 1996, records the process by which
appointment to these posts must be made. This failure, submits Applicant,
resulted in a gross irregularity in the proceedings or, differently put, the arbitrator
exceeding his powers.
[8] I appreciate the Applicant’s concerns about a person being appointed to a
post without compliance with the agreed procedures. I also understand that
difficulties may arise concerning the establishment of a post to accommodate a
person so appointed. However, I do not regard these concerns as limiting the
arbitrator’s jurisdiction in the sense suggested by Mr Cassim. They are not legal
arbitrator’s jurisdiction in the sense suggested by Mr Cassim. They are not legal
impediments to a determination of the kind made by the arbitrator
(Amalgamated Clothing and Textile Workers Union v Veldspun Ltd 1994 (1)
SA 162). This formulation of the submission concerning the arbitrator having
exceeded his powers arose for the first time in an aide memoire filed by Mr
Cassim on the afternoon before the hearing. In its founding affidavit the
Applicant’s contention (that the arbitrator failed to take into account whether the
Applicant could accommodate the Second Respondent at post level 3) was
directed at demonstrating a gross irregularity in the proceedings.
[9] It was common cause that the employer led no evidence at the arbitration
about these difficulties. It did not say, as Mr Cassim did in this Court, that it was
“against the law for” an appointment to be made in this way. The Applicant was
present throughout the arbitration proceedings but led no witnesses. Despite being
cautioned in this regard, it was content to have a bundle of documents placed
before the arbitrator and to present him with legal argument. Resolution 1 of
1996, concerning the filling of established posts, formed part of the bundle, but its
impact on permissible or appropriate remedies was not raised by the Applicant.
The Education Employment Act was not part of the bundle. The Applicant raised
several objections to the employment of the Second Respondent in a level 3 post,
but said nothing of its inability to accommodate such a determination.
[10] I accept Mr Buirski’s submission that the Second Respondent had made
out a prima facie case for employment in a permanent level 3 post. The arbitrator
was satisfied that she had the necessary qualifications for the job, she had
competently performed at level 3 for four years, she had a legitimate expectation
of employment at that level and that the employer had no objection to employing
her in a permanent position. The employer did nothing to disturb the Second
her in a permanent position. The employer did nothing to disturb the Second
Respondent’s case. In the circumstances it cannot be said that the arbitrator
prevented a fair trail of the issues and in this way committed a gross irregularity.
Likewise the employer was not prevented from having his case fully and fairly
determined ( Goldfields Investment Ltd & Another v City Council of
Johannesburg & Another 1938 TPD 551 ).
[11] The arbitrator did not act outside of his terms of reference when he
required the Applicant to employ Second Respondent in a permanent level 3 post.
To have ordered employment at a lower level post would not have resolved the
dispute between the parties. Applicant’s failure to offer Second Respondent
employment at level 3 was the very crux of the dispute. It led to her resignation.
Second Respondent’s resignation, because of the Applicant’s refusal to employ
her at level 3, was found to be a constructive dismissal. The dismissal was found
to be unfair. It seems more than reasonable for the arbitrator to have required the
employer to employ Second Respondent at level 3 in the absence of any
demonstration that to do so would be unlawful. It cannot be said that the award is
lacking in objective justification or that it is not justifiable in terms of the
arbitrator’s reasons. Even if I had been asked to apply the broader, socalled
constitutional grounds for review, I do not think there is a basis on which to set
aside the award.
[12] The application is dismissed. The Applicant must pay the Second
Respondents costs.
______________________
Seady,AJ
Date of hearing : 21st of May 1999
Date of Judgment : 26th of May 1999
Appearing on behalf of the Applicant : Adv N.A. Cassim SC instructed
by
The State Attorney
Appearing for the Second Respondent: Adv B. Buirski instructed by
M.T. de Bruin Attorneys