REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT DURBAN
CASE NO D491/2001
DATE:2002/05/03
In the matter between:
STANDARD BANK OF SA LTD Applicant
and
JEFFREY FOBB First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
SOUTH AFRICAN SOCIETY
FOR BANK OFFICIALS Third Respondent
MATTHEW GOVENDER Fourth Respondent
___________________________________________________________
JUDGMENT
______________________________________________________
PILLAY D, J
[1] The first point raised in limine in this application for a review is that the first
respondent Commissioner's award is a nullity. It was issued on or about
14 March 2001, some eight and a half months after the arbitration was
heard.
[2] Advocate Nel , for the applicant, relying on case law, submitted
that the ratio for declaring an award issued outside the time limit a nullity is
to prevent an injustice. As a nullity there would be no valid award to be
substituted or corrected and the proceedings must start de novo . The
injustice referred to in this case was that the Commissioner
awarded reinstatement with full retrospective effect to the date
of dismissal. I will return to this later.
[3] Advocate Rautenbach, for the fourth respondent, asked the Court to have
regard to the primary objects of the Labour Relations Act No 66 of 1995
(the LRA), to adopt a purposive approach to the interpretation of Section
138(7)(a) and to find, as LANDMAN J did in Free State Buying Association
Ltd (t/a Alfa Farm) v S A Commercial Catering and Allied Workers Union
and Another [1998] 19 ILJ 1481 LC, that the time limit stipulated in the
section is intended to be a guideline.
[4] Section 138 provides:
"(7) Within 14 days of the conclusion of the arbitration:
(a) the commissioner must issue an arbitration award with brief
reasons, signed by that commissioner;
(b) the Commission must serve a copy of that award on each party to
the dispute or the person who represented a party in the arbitration
proceedings; and
(c) the Commission must file the original of that award with the
registrar of the Labour Court.
(8) On good cause shown, the director may extend the period within which the
arbitration award and the reasons are to be served and filed."
[5] In Maharaj and Others v Rampersad 1964(4) 638 at 643D E VON WINSEN
AJA said:
"It is a recognised principle of statutory construction that a Court, when
determining which of these two alternative constructions is to be placed
upon a statutory enactment, must seek to ascertain the real intention of the
Legislature and in so doing must have regard to the scope and object of
the enactment as a whole."
[6] The word "must" is peremptory in relation to the issuing of an award. For as
long as a Commissioner is alive and well she is enjoined to issue an award
in a matter in which she has arbitrated and where the parties to the
arbitration have not released her from that obligation.
[7] The time limits in this context are a guideline and not peremptory. I say so,
firstly, because peremptory treatment can lead to absurdity. Secondly, it is
not in the interests of litigants, the public and the national interest to re
hear arbitrations for no reason but the fact that the award is issued outside
the time limit. Thirdly, it would conflict with the object of the LRA to resolve
labour disputes effectively. In the nature of arbitration awards are issued
late. If they are a nullity and no effect can be given to them, then the
referral for a fresh arbitration would not be an effective, expeditious
solution.
[8] I accordingly agree with my brother LANDMAN J in the Free State case where
he states at paragraph 16:
"Section 138 of the Labour Relations Act 66 of 1995 does not make
provision for an extension of the time within which to issue an arbitration
award. In my opinion s 138(7)(a), in so far as it relates to the signature
and the issuing of the award, is intended to be more of a guideline. It is
not intended to be peremptory. It is quite clear that, having regard to
human nature, a commissioner may not always be able to sign and issue
an award within the 14day period. If a commissioner were to sign or to
issue the award after that period, it would not be in accordance with the
aims of this Act to visit such omission with invalidity. If that were to be
done it would simply mean that the dispute had not reached finality and the
arbitration proceedings would have to take place de novo. This could not
have been intended."
[9] The Court, therefore, has a discretion in each case to decide whether the
award should be allowed to stand. In exercising such a discretion the
Court may consider, amongst other things, the following:
• the reasons for the delay,
• the period of delay,
• the effect of the award,
• the prejudice to the respective parties if the award were allowed to stand
or to be struck down,
• the availability of evidence if the matter were to be reheard,
• alternative means of promoting the effective resolution of the dispute, such
as the rehearing of the matter on the same record of the evidence,
• what the other grounds of review are.
[10] In this case the effect of the award is retrospective reinstatement. Whatever
the Commissioner's reasons might have been for the delay it cannot
outweigh the prejudice to the applicant who is saddled with paying eight
and a half months' salary without receiving any value in return.
[11] Neither party indicated that the witnesses would not be available if the matter
were to be reheard. What the most effective way of finalising the dispute,
which is about the unfair dismissal of the fourth respondent, should be, is
canvassed more fully after considering the further grounds of review.
[12] The second ground of review is that the Commissioner ordered reinstatement
when the fourth respondent had only sought a compensatory award. This
ground is well founded. The Commissioner ought to have been aware,
having read the transcript of a previous hearing on a point in limine , that
reinstatement was not sought. If he, in his discretion, considered
reinstatement appropriate, he ought to have engaged the parties on the
issue before making his award.
[13] The third ground of review is that the Commissioner did not consider the
applicant's replying argument. This was common cause. Advocate
Rautenbach countered that as there was no misconduct with which the
fourth respondent ought to have been charged and dismissed, the failure
to consider the replying argument made no difference to the outcome.
[14] Whether the failure to consider the replying argument is a reviewable
irregularity depends on whether the omission is material. It is material if it
could have influenced the discretion of the Commissioner. The
Commissioner made credibility findings against certain of the applicant's
witnesses. The applicant, in the replying argument, addresses this issue.
This alone amounts to a material defect. Although there were other
instances where the replying affidavit was material to the deliberations of
the Commissioner, it is not necessary to traverse them all. What the
merits or demerits of the submissions were in the reply is not the test. The
fact that they related to material actually considered by the Commissioner,
as manifest from his award, is sufficient to class them as material to the
decision. If the Commissioner had considered the replying affidavit he
might have found that the fourth respondent had misconducted himself or
come to some other conclusion. The failure or omission to consider the
replying argument before making his award is a reviewable irregularity.
[15] The fourth ground of review is that the Commissioner is alleged to have taken
judicial notice of preferential treatment by employees of commercial banks
of certain attorneys purportedly in the allocation of conveyancing work. I
was referred to the relevant portions of the transcript where the
Commissioner intervened to inquire how conveyancing work was allocated
to attorneys. An example of that appears at page 519 of the record:
"COMMISSIONER: Mr Brodie, just one question in regard to impartiality.
You spoke earlier on about it's absolutely imperative that a person in a
managerial position is seen to be absolutely impartial when it comes to
services and suppliers and so forth. But it's common practice for a bank to
restrict the work that it gives out to particular suppliers of a service, and I
say that because I am an attorney."
And at page 519, line 25:
"COMMISSIONER: Okay, and attorneys, it is common knowledge, vie for
the ability to do work for a certain bank. Some guys make it and some
guys don't. How do you make it on to that panel? I am asking you this
because I have my own personal theories about how you make it on to a
panel, but you tell me what you say."
At page 800:
"COMMISSIONER: Mr Alexander, I understand this line of cross
examination but, can you show me anywhere within the rules that indicates
to me, will assist me, what he did was wrong? And I give you an analogy,
all of the firms of attorneys in Durban, as you know, vie for bank work
when it comes to conveyancing and the bank is entitled to say well, 'We
are going to take three firms of attorneys and we are going to give them all
our conveyancing.' Much as that we may think, for example, in my
practice, that we're the best conveyancers in town, we don't get the nod.
Now, that is really the prerogative of the bank manager. It may be
because he plays golf with the Conveyancing Department manager of
Shepstone and Wylie, I don't know. But unless there is a rule in that bank,
and that is the question I am asking you, what is wrong with what he did? I
understand what you are saying but it is a judgment call."
[16] At first blush the intervention appears to be an attempt by the Commissioner
to establish whether there was an objective standard or rule relating to the
distribution of work. However, in his award the Commissioner states:
"Evidence was lead, which was not challenged that the Applicant's senior
Mr Bolstridge spent time with partners of Goodrickes Attorneys who enjoy
the lion's share of the conveyancing work from Mr Bolstridge's department.
Mr Bolstridge insisted on allocating work to Dales Bros. Auctioneers in a
situation where he intended purchasing a Porche motor vehicle from them.
The principle of impartiality and objectivity does not appear to be
consistently applied by the Respondent's management."
[17] The conclusion that Goodricke’s gets the lion’s share of conveyancing is not
supported by the evidence. Furthermore, this was evidence on a new
matter which was elicited in reexamination of the fourth respondent. It was
also a peripheral issue. If the Commissioner intended to place any weight
on it, he should have given the applicant an opportunity to deal with the
evidence. By his silence the applicant was entitled to assume that the
rules of procedure would be followed in the normal course, namely that the
Commissioner would disregard the new material. The fact that the
applicant did not interject when such material was being elicited cannot be
held against it as it was the Commissioner who disregarded the rules of
procedure.
[18] The Commissioner's personal and private perception of the unfairness of the
allocation system is evident from this extract from his award. His lack of
adjudicative discipline in failing to keep his personal unhappiness with
banks in check, renders his award reviewable on this ground.
[19] Moreover, his intervention could have influenced the evidence that was led at
the arbitration. This is a relevant consideration for determining whether
the record of the evidence can be relied upon if the matter were to be
determined without leading evidence afresh.
[20] Fourthly, it was submitted that the Commissioner took into account the
evidence of a witness at the disciplinary inquiry despite having agreed with
the parties that such evidence would not be admissible. Furthermore, he
did not inform the parties that he intended to rely on such evidence as
corroboration of a material issue.
[21] The facts which found this ground are also not in dispute. The Commissioner
set the ground rules in terms of which the arbitration was to proceed. He
ought not to have changed them midstream without consulting the parties.
This ground, therefore, is sustained.
[22] I do not intend to deal with those grounds of review that impact on the
substantive finding of the Commissioner that the dismissal was unfair for
the reasons that will become apparent. According to
Advocate Rautenbach, the fourth respondent should not have been
charged at all. The allegations do not amount to misconduct, he said. The
applicant submits that the fourth respondent was dishonest.
[23] The evidence is nuanced and a trier of fact may be disadvantaged if she is
confined to considering the transcript of the evidence without the benefit of
observing the demeanour of witnesses. Furthermore, findings of credibility
will have to be made. This can be done better by observing witnesses. For
these reasons I find that the rehearing of the matter should not be on the
basis of the record of the evidence of the arbitration.
[24] With regard to costs, I take into account that the fourth respondent would
have felt compelled to defend the award and his defence was conducted in
good faith and in a reasonable manner.
[25] The order I make is as follows:
1. The award is reviewed and set aside.
2. The matter is remitted to the CCMA to be heard afresh by another
Commissioner.
3. There is no order as to costs.
D PILLAY
JUDGE OF THE LABOUR COURT
____________________________________________
DATE OF HEARING: 30 APRIL 2002
DATE OF JUDGMENT: 3 MAY 2002
DATE OF REVISION: 4 JUNE 2002
ON BEHALF OF APPLICANT: ADV C NEL
ON BEHALF OF FOURTH RESPONDENT: ADV J G RAUTENBACH