Kemaketse t'siu v Nthane Brothers (Pty) Ltd and Another (LC/REV 30 of 11) [2012] LSLC 6 (3 May 2012)

IN THE LABOUR COURT OF LESOTHO LC /REV/30/11 HELD AT MASERU In the matter between: KEMAKETSE TS`IU AND APPLICANT NTHANE BROTHERS (PTY) LTD. DIRECTORATE OF DISPUTE PREVENTION AND RESOLUTION 1st RESPONDENT 2nd RESPONDENT JUDGMENT DATE: 02nd MAY, 2012 Practice and procedure - Review of the DDPR award - On the ground that the Arbitrator committed a reviewable error by going ahead to arbitrate a matter before subjecting it to the mandatory conciliation process and irregularly upholding the plea of lis pendens where it was not applicable - Both grounds not successful and the review application is dismissed. 1. The applicant is a former employee of the 1st respondent. He was dismissed from the said employment on 8th January, 2010. He challenged the fairness of this dismissal before the Directorate of Dispute Prevention and Resolution (DDPR) in AO130/10 through the office of the Labour Commissioner. On the day of hearing neither the applicant nor his representative attended the hearing and it and it was dismissed. 2. Dissatisfied with the purported failure by the office of the Labour Commissioner to attend his hearing, an act which he suggested led to the dismissal of his case, he sought the services of K. E. M Chambers who filed an application to have the DDPR award in A 0130/10 rescinded. It emerged that on the day scheduled for the hearing of the rescission application, the learned Arbitrator advised the applicant and his Counsel that the matter which was the subject of the rescission application had been filed by the office of the Labour Commissioner and in the circumstances K. E. M Chambers could not represent him as the mandate was that of the office of the Labour Commissioner. She advised the applicant to secure the withdrawal of the mandate to the office of the Labour Commissioner now that he had decided to change Counsel. 3. The applicant indicated in his founding affidavit that it took him a while to secure the said withdrawal as he had a problem meeting the officer who was handling the matter, Mr. Tsoametse, but he said he ultimately got it. He went further to intimate to the Court that because of the time lapse he filed a condonation application. On the day of its scheduled hearing the learned Arbitrator Molapo advised them to file a fresh application as the initial referral was filed in the name of the Labour Commissioner. Following this advice they filed referral No. A 1068/10. On the date of hearing of this fresh application 1st respondent’s Counsel raised a plea of lis pendens contending that case No. A0130/10 which pertained to the same cause of action as in the fresh referral was still pending before the DDPR. He challenged the authenticity of the withdrawal certificate, and prayed that referral No. A 1068/10 be dismissed. This point was upheld. The applicant was not satisfied with the learned Arbitrator’s ruling, and hence filed the current application for the review, correction and setting aside of the DDPR award in A 1068/10 which dismissed applicant’s claim. CONDONATION FOR LATE FILING 4. It is common cause that the award in A 1068/10 was handed down on 3rd February, 2011 and the review application lodged on 12th April, 2011. It is however not clear as to when applicant’s Counsel received it. Parties did not pursue this issue of condonation during proceedings much as it appeared in the pleadings and in the heads of argument filed by applicant’s Counsel. The Court could therefore not make a determination. GROUNDS FOR REVIEW 5. The applicant raised a number of grounds for review albeit in not a very organised fashion and rather lengthy. Be that as it may, the irregularities he pointed out in the award may be summarised as follows: (i) That the learned Arbitrator erred in not conciliating the matter first before determining the legal point by arbitration; (ii) That it was irregular for the learned Arbitrator to have held that case No. A 0130/10 was still pending; and lastly (iii) That the learned Arbitrator failed to apply her mind to the case by taking into account irrelevant considerations. We will deal with the grounds of review seriatim. (i) CONCILIATION AS A CONDITION PRECEDENT TO ARBITRATION By way of introduction, the conciliation process is a form of alternative dispute resolution mechanism. It is an alternative to adjudication. It is consistent with the contemporary theory that consensus should always be sought prior to the resort to power (strikes/lockouts) or adjudication. It is a process designed to reach agreement between the disputing parties by compromise and or accommodation of each other’s position and therefore a win-win situation. Conciliation is a consensus seeking dispute resolution system. The adjudication on the other hand is a binding process and entails the decision or determination of a case. It is a win- lose situation. Lesotho subscribes to this notion that as much as possible labour disputes be settled out of court. It is in this spirit that our labour law dispensation provides that if a dispute falls within the jurisdiction of the DDPR it shall first be resolved by conciliation. It is only if conciliation fails, that resort is had to arbitration. To this end, Section 227 (4) of the Labour Code (amendment) Act, 2000 reads: “If the dispute is one that should be resolved by arbitration, the Director shall appoint an arbitrator to attempt to resolve the dispute by conciliation, failing which the arbitrator shall resolve the dispute by arbitration.” This form of mechanism adopted by Lesotho is referred to as a Con-Arb system. It is therefore indisputable that conciliation is mandatory or a sine qua non to disputes filed before the DDPR. We have some authorities to confirm this position. One of the cases in point is Lesotho Textile Exporters Association v DDPR & 2 Others LC/REV/07/09. The issue that the Court is now confronted with is whether or not the learned Arbitrator in A1068/10 indeed proceeded to determine the case by arbitration before attempting to conciliate it as required by law. Paragraph 2 of the award reads: “This case was scheduled for hearing on the 20/01/2011 upon which the matter was conciliated. Respondent raised [a] preliminary issue that they have dealt with the case previously and it was not yet finalized.” The applicant made no attempt to thwart the truthfulness of this assertion. He merely made a bare allegation that the matter was not subjected to conciliation prior to adjudication. Secondly, applicant’s Counsel themselves mentioned in a letter addressed to the Director of the DDPR dated 14th March, 2011(annexure “CB7” to the notice of motion) that A1068/10 had been conciliated. The letter read: The Director DDPR Moposo House 7th Floor Maseru Sir, RE: RULING IN KEMAKETSE TS’IU V NTHANE BROTHERS (PTY) LTD A1068/2010 The above matter refers. We are the legal representatives of Mr. K. Ts’iu, our client herein and acting on his instructions as such. The above matter was set down for hearing on the 20th day of January 2011 before the Arbitrator Mrs Senooe. When we were in a process of conciliation (underlining mine), Counsel for the respondent raised a point of law to the effect that the applicant had early (sic) instituted another matter through the Labour Commissioner. A point of law was argued before Mrs Senooe who reserved the ruling. We write as we hereby do to kindly remind the Arbitrator about the said ruling so to advise client accordingly as client is eager to know about the outcome of his case and/or the way formed (sic). Your usual corporation (sic) will be highly appreciated. We are awaiting your speedy response. Yours faithfully _________________ K. E. M CHAMBERS Looking at paragraph 3 of this letter, K. E. M Chambers actually acknowledged that the learned Arbitrator did attempt to conciliate the matter as required by Section 227(4) of the Labour Code (amendment) Act, 2000. The preliminary point raised being a legal point, the Arbitrator moved to the arbitration stage as she had to make a determination, a thing she could not do under conciliation as it is a consensus based process. In the circumstances, we conclude that the learned Arbitrator committed no irregularity as alleged by the applicant. This ground of review falls off. (ii) THE PLEA OF LIS PENDENS Respondent’s Counsel challenged the authenticity of the notice of withdrawal from the Labour officer. He contended that one would not expect such a letter to emanate from such an august office as the Labour Commissioner’s as it neither bore a letterhead nor an official stamp. He indicated at p. 6 of the record that looking at the note one could easily conclude that the applicant wrote it himself at the Reception. The learned Arbitrator seemed to agree with 1st respondent’s Counsel and concluded that there was no notice of withdrawal in respect of A1068/10 and therefore upheld the plea of lis pendens. We had an opportunity to see the said notice of withdrawal and indeed it was just scribbled, had no official stamp was not written on a letter head and did not even reflect who the signatory was. It was indeed questionable. Hereunder is the said letter:- With the notice of withdrawal suspect and thereby thrown out, we find no fault with the learned Arbitrator’s finding that when A1068/10 was filed A0130/10 was still pending. The applicant alleges in his papers that they filed a new case through the advice of the learned Arbitrator Molapo. As it is, they ought to have adduced evidence before the learned Arbitrator Senooe to prove their assertion. The relevant file could have been recalled and checked if there was a minute to that effect, particularly when it was challenged. This information was easily accessible as it was within the DDPR. The plea of lis pendens connotes that a case “between the same parties concerning the same thing, and founded on the same cause of action is still pending” - See Beck’s Theory & Principles of Pleading in Civil Actions 6th ed., p. 157. This plea resembles in many ways the plea of res judicata. The last ground of review was not pursued. Having not found any reviewable error in the learned Arbitrator’s award, the Court finds itself with no option but to dismiss this application. We also find no reason to mulct the applicant with costs and there is therefore no order as to costs. Generally, costs are not easily awarded in labour matters. THUS DONE AND DATED AT MASERU THIS 02nd DAY OF MAY, 2012. F. M. KHABO DEPUTY PRESIDENT OF THE LABOUR COURT MRS. M. THAKALEKOALA MEMBER MR. D. TWALA MEMBER I CONCUR I CONCUR FOR THE APPLICANT: FOR THE RESPONDENT: ADV., R. D. SETLOJOANE ADV., T. W. MAKAMANE