Fahhida Supermarket v Ikhetheleng Sibolla and Another (LC/REV 107 of 2012) [2013] LSLC 86 (11 November 2013)

IN THE LABOUR COURT OF LESOTHO LC/REV/107/2012 A0264/2012 HELD AT MASERU In the matter between: FAHHIDA SUPERMARKET (PTY) LTD APPLICANT And IKHETHELENG SIBOLLA THE ARBITRATOR DDPR (MR. KALAKE) 1st RESPONDENT 2nd RESPONDENT JUDGMENT Hearing Date: 30th October 2013 Application for review of the 2nd Respondent arbitral award. Applicant having raised four grounds of review. Court finding merit in only one of the grounds raised – Court finding that Arbitrator did not consider the explanation for failure to attend – failure to consider explanation amounts to a gross irregularity warranting the granting of a review application. Review being granted and Court directing that the matter be remitted to the DDPR for a determination of the rescission application. No order as to costs being made. BACKGROUND OF THE ISSUE 1. This is an application for the review of the 2nd Respondent arbitral award. it was heard on this day and judgment was reserved. Applicant was represented by Adv. Ramohlanka while 1st Respondent was represented by Adv. ‘Nono. The brief background of this matter is that, 1st Respondent had referred a claim for unpaid wages with the DDPR. The matter proceeded in default of Applicant and an award was subsequent thereto made in favour of 1st Respondent. Applicant then filed an application for rescission of the said award. The rescission application was also dismissed in default of Applicant, leading to the initiation of the current review proceedings. 1 | P a g e 2. Four grounds of review have been raised on behalf of Applicant, in terms of which it seeks to the have the 2nd Respondent arbitral award reviewed, corrected or set aside. Both parties were given the opportunity to make representation and having considered their submissions, Our judgment is therefore in the following. SUBMISSIONS AND FINDINGS 3. It was submitted on behalf of Applicant that the learned Arbitrator had erred in that He did not consider the options prescribed under section 227(8) of the Labour Code (Amendment) Act 3 of 2000, in dismissing the rescission application. It was further submitted that in terms of the said section, the learned Arbitrator had an option to either postpone, dismiss or grant the matter in default. It was added that rather than to consider the said options, He simply outlined them and then arbitrarily elected to dismiss the matter. 4. In reply, it was submitted that the learned Arbitrator had considered all the options, prior to the decision to dismiss the referral. The Court was referred to paragraphs 3, 4 and 5 of the arbitral award, where the learned Arbitrator had reasoned his conclusion. It was submitted that among His reasons to dismiss, was the lack of a convincing explanation for failure to attend and the casual attitude of Applicant in the matter. It was concluded that the decision was therefore fair under the circumstances. 5. We are in agreement with 1st Respondent that the learned Arbitrator considered all the options laid out under section 227(8) of the Labour Code Act (supra). While He may have outlined them at paragraph 5 of the arbitral award, but His election to dismiss was reasoned. As righty pointed out by 1st Respondent, the reasons for the elected option are reflected under paragraphs 3, 4 and 5 of the arbitral award. We therefore find no irregularity in the conduct to the learned Arbitrator and accordingly dismiss this review ground. 6. The second ground of review was that the learned Arbitrator had erred in that He did not consider the explanation given on behalf of Applicant for failure to attend the proceedings. It was 2 | P a g e submitted that the Human Resources Manager had been sent to convey the message that one Mr. Abdulla, who was handling the matter, could not be able to attend due to illness. It was argued that had this explanation been considered, it would have influenced the learned Arbitrator to find otherwise. 7. In reply, 1st Respondent submitted that explanation was considered by the learned Arbitrator hence the finding that it was not sufficient to warrant its granting. The Court was referred to paragraph 3 of the arbitral award recorded as follows, “She neither advanced any convincing reasons of the reason that she sought his application to be postponed.” It was added the explanation given was tantamount to no explanation at all as the person who offered it had no authority to appear on behalf of Applicant. 8. At paragraph 3 of the arbitral award, the learned Arbitrator notes the following, “Only a certain Mrs ‘Matseliso Nkhetse appeared as the applicant’s Human Resource Officer and intimated before the tribunal that she came to seek a postponement alleging that a certain Mr. Abdulla was sick and could not attend the hearing. However, Mrs. Nkhets’e did not have the authority to represent the applicant, neither had she filed it ... She neither advanced any convincing reasons of the reason that she sought his application to be postponed ” 9. Having noted the explanation given for failure to attend on the part of the said Abdulla, the learned Arbitrator ignores same and proceeds to address the issue of the authority to represent of a messenger and eventually decides to dismiss the referral. Clearly, the explanation given was ignored as the reason for the dismissal of the referral has no connection at all to the given reason. The learned Arbitrator does address the issue of the alleged incapacity of Applicant’s representative. Essentially the learned Arbitrator ignored the real issue before Him. 10. In the case of Thabo Mohlobo & others v Lesotho Highlands Development Authority LAC/CIV/A/05/2010, the Court held that failure by presiding officers to direct their thoughts to the relevant data or relevant principles as well as their reliance on 3 | P a g e irrelevant considerations amounts to an irregularity worthy or being reviewed. We are therefore find that the learned Arbitrator committed an irregularity contemplated by the above authority, in that rather than to consider the explanation for failure to attend, He concentrated on the absence of an authority to represent. Further, that if the explanation given had been considered, it may have altered the decision of the learned Arbitrator. We therefore find that this is an irregularity so grave that it warrants interference with the award. 11. The third ground of review was that the learned Arbitrator had committed an irregularity by ignoring the explanation given for failure to attend due to the absence of an authority to represent by the Human Resources Officer. It was submitted in support that the Human Resources Officer had been sent to merely convey the message that the person who had been properly elected to represent Applicant, was indisposed. It was added that there is no requirement that a messenger who is not a representative must submit an authority to represent when conveying a message on behalf of the representative. 12. In reply, it was submitted that the learned Arbitrator was right in finding that the representative needed an authority to represent when she conveyed the message about the incapacity of Applicant’s representative. It was added that the learned Arbitrator could not have been expected to rely on communication from a person with no right of audience. It was further submitted that the said document would have served as proof that the Human Resources Officer had been duly authorised to communicate the information that she did to the tribunal. 1. We wish to note that it is Our view that this grounds is an appeal as opposed to a review ground. We say this because, it seeks to challenge the decision of the learned Arbitrator to require an authority to represent from a messenger. There is no allegation of an irregularity in the conduct of the learned Arbitrator during the proceedings, nor do We find any. The distinction between an appeal and a review was made in the case of JD Trading (Pty) Ltd t/a Supreme Furnishers v M. Monoko & others LAC/REV/39/2004, as follows, 4 | P a g e “Where the reason for wanting to have the judgment set aside is that the court came to the wrong conclusion on the facts or the law, the appropriate remedy is by way of appeal. Where, on the other hand, the real grievance is against the method of the trial, it is proper to bring a case on review. An appeal is thus in reality a re-evaluation of the record of proceedings in the court a quo.” (Also see Thabo Mohlobo & others v Lesotho Highlands Development Authority LAC/CIV/A/05/2010) 13. In view of the above authority, this ground cannot sustain for want of jurisdiction as this is only vested with review and not appeal powers. However, We wish to comment on the submissions made, in order to set the position of the law straight, on the issue of an authority to represent. In the proceedings before the DDPR, a representative is a person appointed in terms of section 228A of the Labour Code (Amendment) Act 3 of 2000. It is thus only in circumstances contemplated under section 228A of the Labour Code Act (supra), that an authority to represent is necessary. 14. In casu, the Human Resources Officer was not a representative as she had merely appeared to inform the learned Arbitrator of the inability of the person appointed, in terms of section 228A of the Labour Code Act (supra), to learned appear. This was clearly communicated to the Arbitrator as he has also acknowledged the communication in His arbitral award. Consequently, the Human Resources Manager was not in law required to submit an authority to represent. 15. The last ground of review was that the learned Arbitrator failed to consider the Applicants pleadings before dismissing the application for rescission for want of prosecution. It was submitted that, in particular, the learned Arbitrator ought to have considered the prospects of success in the matter. Further that if He had, He would have been inclined to postpone the matter on account of fairness to both parties. 16. In reply, it was submitted that in terms of section 227(8) of the Labour Code Act (supra) as well section 19 (1) of Labour Code (DDPR Regulations) of 2001, there is no requirement that where a party has defaulted, the learned Arbitrator must 5 | P a g e consider the pleadings before resolving to dismiss the matter. It was added that the provisions of these legal instruments are clear that failure to attend requires an election between dismissal, granting and postponement. 17. We are in agreement with 1st Respondent that there is no legal requirement that the pleadings must be considered when acting in terms of section 227 (8) of the Labour Code Act (supra) and the DDPR Regulations learned circumstances Arbitrator surrounding the failure to attend on the side of either party, before making an election under these instruments. It is only where no consideration of the circumstances has been made that the learned Arbitrator may be held to have committed an irregularity. Consequently, this ground fails. (supra). Rather, the consider is obliged the to AWARD We therefore make an award in the following terms: a) The application for review is granted; b) The matter is remitted to the DDPR for a determination of the rescission application. c) That this award must be complied with within 30 days of receipt herewith; and d) There is no order as to costs. THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF NOVEMBER 2013. T. C. RAMOSEME DEPUTY PRESIDENT (a.i) THE LABOUR COURT OF LESOTHO Mr. S KAO MEMBER Mrs. L. RAMASHAMOLE MEMBER I CONCUR I CONCUR FOR APPLICANT: FOR RESPONDENT: ADV. RAMOHLANKA ADV. ‘NONO 6 | P a g e