IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
OF INTEREST
CASE NO D114/02
DATE 2003/03/12
In the matter between:
ROBERT STEPHEN CUSTANCE Applicant
and
S A LOCAL GOVERNMENT BARGAINING
COUNCIL & others Respondents
JUDGMENT DELIVERED BY THE HONOURABLE MS JUSTICE
PILLAY
ON 12 MARCH 2003
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT 12 MARCH 2003
PILLAY J
[1] The third respondent in this review raised in limine the
jurisdiction of the Court. The objection was founded on the
following clause in the arbitration agreement:
"7. The Arbitrator's decision shall be final
and binding on the parties and there
shall be no recourse to any other
tribunal, including the Commission for
Conciliation, Mediation and
Arbitration, or the Labour Court."
[2] Mr Chetty, for the applicant, misfocused his argument by
contending, firstly, that the arbitration was not a private
arbitration. In my view, the power of registered bargaining
councils to provide dispute resolution services is derived
from the Labour Relations Act No 66 of 1995 ("the LRA").
The conduct of the dispute resolution process is by
agreement. Dispute resolution under the auspices of the
bargaining council is therefore often referred to as semi-
private processes.
[3] In this case Mr Chetty acknowledged that the bargaining
council rules specifically provided for the application of the
Arbitration Act No 42 of 1965. I find therefore that the
Arbitration Act applied to this arbitration under consideration
in this review and that it was a private arbitration.
[4] Secondly, Mr Chetty focused extensively on the wording and
interpretation of clause 7 of the arbitration agreement. None
of his submissions have any merit, and they therefore do not
warrant repeating here.
[5] Thirdly, he submitted that clause 7 was in conflict with the
bargaining council's rules which provided for the application
of the Arbitration Act, which provides in turn for the review of
arbitrations. It could therefore not have been the intention of
the parties to oust the jurisdiction of the Labour Court, he
submitted.
[6] Mr Chadwick for the third respondent conceded, when this
matter resumed after a postponement to enable Mr Chetty to
file heads of argument on the point in limine, that the
agreement did not oust the jurisdiction of the Court
altogether. However, the applicant would have to establish
one or other ground of review set out in section 33(1) of the
Arbitration Act. ( Amalgamated Clothing & Textile Workers
Union of South Africa v Veldspun (Pty) Limited 1994 (1) SA
162 (A); PPC Cement, Beestekraal v Khunou & Others (2000)
2 BLLR 153 (LAC); Dickinson & Brown v Fishers Executors
1915 (AD) 166 and Donner v Ehrlich 1928 (WLD) 159.)
[7] It is quite clear to me from the language of clause 7 that the
parties intended to oust the jurisdiction of the Labour Court
in all circumstances but those disallowed by law. It could not
have been the intention of the parties to oust the jurisdiction
of the Labour Court if the law did not permit it as that would
have resulted in a nullity. The case law is firmly against
giving effect to ouster clauses. ( Veldspun and PPC Cement
above.)
[8] In Brisley v Drotsky (2000) 12 BCLR 1229 (SCA), the Supreme
Court of Appeal pointed out that the freedom to contract is
limited by the requirement that contracts must be in
accordance with public policy, which is determined by
reference to the Constitution of the Republic of South Africa
Act No 108 of 1996, ("the Constitution"). The Learned
CAMERON J added that the concepts of boni mores and the
Judges' notions of unjustness must yield to the objective
values espoused in the Constitution.
[9] In exercising its equity jurisdiction in this case, the Court
must also defer to the standards set in the Constitution. It
would be against public policy to enforce an arbitration
award that is reviewable on one or other grounds listed in the
Arbitration Act. To deny a party jurisdiction in the Labour
Court in those circumstances would be to deny it access to a
forum, which is a fundamental constitutional right. It could
perpetuate an unfair labour practice against which there is
also a constitutional guarantee. As the party would have
good cause to exercise the right of access, the denial of
jurisdiction would be an unreasonable and unlawful limitation
on the exercise of that right.
[10] The supremacy of the Constitution is further endorsed in the
matter of George v Western Cape Education Department
(1996) 2 BLLR 166 (IC), a case to which Mr Chetty referred.
[11] Whether the applicant has good cause to enjoy access to the
Labour Court depends on the merits of the review. If the
applicant does not succeed, then the award would be valid
and enforceable. In that event, clause 7 would constitute a
valid limitation of the Court's jurisdiction.
[12] I turn to consider whether the award is indeed reviewable in
terms of the Arbitration Act which sets the standard agreed
to by the parties for this review.
[13] The applicant was dismissed for assaulting a fellow employee
and verbally abusing him by calling him a "kaffir". At the
arbitration the applicant disputed in limine the third
respondent's jurisdiction to conduct the inquiry as the
incident occurred when the applicant was off duty.
[14] The Arbitrator found, after a detailed analysis of the facts,
pages 132 to 135 of the record, that he had jurisdiction as,
"The conduct of the applicant did
impact materially on the employment
relationship."
(Hoechst (Pty) Limited v Chemical Workers Industrial Union &
Another (1993) 14 ILJ 1449 (LAC).)
[15] After this finding was made, the parties settled the dispute,
and agreed that the terms of the settlement would become
the award.
[16] The applicant was represented by his trade union, the
Independent Municipal & Allied Trade Union ("IMATU")
throughout the inquiry, the appeal and up to the stage of the
arbitration. He refused to abide by the settlement and,
through his attorney of record, requested that the procedural
and substantive fairness of the dismissal be arbitrated.
[17] One of the grounds of review is that the Arbitrator committed
an irregularity by issuing two awards. The submission is
quite disingenuous since the applicant agreed, through his
trade union, to the first award being issued, and specifically
requested, through his attorney, for arbitration on the merits.
[18] Another ground of review was that the Arbitrator erred in
finding that the disciplinary inquiry was procedurally fair,
despite the fact that the presiding officer had advised the
applicant's representative that there would be no need for
evidence.
[19] The determination of the procedural fairness of the dismissal
was not part of the arbitrator’s terms of reference.
Nevertheless, the Arbitrator found that the applicant had
been given ample time to prepare a defence and be
represented at the disciplinary hearing and an appeal which
was substantial. Pages 20 and 21 of the transcript of the
disciplinary inquiry to which the applicant referred in this
review do not clearly evidence support for his submissions.
Mr Chetty, in any event, conceded during argument that the
applicant was not prevented from presenting any evidence
that he wanted to at the disciplinary inquiry.
[20] He rejected the applicant's submission at the arbitration that
the presiding officer did not consider the issue of jurisdiction.
He found that the presiding officer was of the view that he
had jurisdiction and continued with the case.
[21] The Arbitrator, in the circumstances, did not commit any
irregularity in finding that the disciplinary inquiry was
procedurally fair.
[22] The other grounds of procedural unfairness relate to the
point in limine about jurisdiction of the third respondent to
discipline the applicant (discussed above) and the sanction.
The latter is clearly a substantive issue and I will return to
that later.
[22] The remaining grounds on which the applicant challenged
the procedural fairness of the inquiry are entirely without
merit. The award is also challenged on the basis that the
Arbitrator found as a fact that the applicant mentioned at the
appeal hearing that he had tapped the complainant and
sworn at him. On the applicant's own version, this was an
admission made by his representative on his behalf. The
applicant's expectation that the making of the admission
might earn him a lesser penalty was irrelevant to the
Arbitrator's conclusion of fact.
[23] Nevertheless, the Arbitrator did not rely on the admissions
exclusively. He examined in detail the evidence of the third
respondent's witnesses and the applicant's own witness and
concluded that the applicant committed the assault
(pages 87 to 88 of the record) and did swear at the
complainant, as alleged (pages 90 to 92 of the record). It
was a credibility finding which the Arbitrator was better
placed than this Court to make.
[24] At best, the applicant's admissions, if accepted, establish no
more than that the Arbitrator erred in his conclusions of fact
or inferences from facts. Such a mistake is not so gross as to
amount to mala fides and warrant the setting aside of the
award. (Veldspun.)
[25] Finally, the applicant contends that the penalty of dismissal
was harsh. He accepted at the arbitration, however, that the
assault of a cleaner by an off-duty lifeguard is unacceptable
behaviour and that the employment relationship would be
strained.
[26] Despite this concession, the Arbitrator nevertheless also
considered the appropriateness of the penalty at length
(pages 92 to 97 of the record), and concluded that there was
a "complete break-down in the trust and employment
relationship", and confirmed the dismissal.
[27] It is now trite that arbitrators should not interfere in the
sanction imposed by an employer unless it is unreasonable.
(Toyota South Africa Motors (Pty) Limited v Radebe (2000) 3
BLLR 243 (LAC).)
[28] In Crown Chickens (Pty) Limited trading as Rocklands Poultry
v Kapp & Others (2002) 6 BLLR 493 (LAC), the Court found
that calling a person "kaffir" was a dismissable offence.
Mr Chetty submitted that the circumstances are
distinguishable in this case. I accept that Kapp's conduct
was more gross. However, in both cases the derogatory
terms used manifest a deep-rooted racism which has no
place in a democratic society. Whether the word was uttered
on or off duty was immaterial as it is the attitude that
persists which, when on duty, affects the employment
relationship.
[29] Accordingly, I find that the award is not reviewable and the
Court has no jurisdiction.
[30] The order I make is as follows:
The application is dismissed with costs.
Pillay D, J
Date: 16 May 2003
FOR APPLICANT: ATTORNEY THEYAGARAJ CHETTY,
THEYAGARAJ CHETTY ATTORNEYS
FOR RESPONDENT: ATTORNEY CHADWICK,
SHEPSTONE AND WYLIE