DEPACU obo Mphela and Others v Commission for Conciliation, Mediation and Arbitration and Others (JR 454/15) [2020] ZALCJHB 232 (22 October 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 454/15

In the matter between:

DEPACU OBO MPHELA AND 105 OTHERS

Applicant

and

THE COMMISSION FOR CONCILIATION,

MEDIATION, AND ARBITRATION First

Respondent

COMMISSIONER PIET VAN STADEN NO

Second Respondent

COMMISSIONER DUMESANE NGWENYA NO Third

Respondent

SA POST OFFICE LIMITED (SAPO) Fourth

Respondent

Heard : 18 February 2020

Delivered: This judgment was handed down electronically by circulation to the parties’ representatives by email and release to SAFLII. The date and time for hand-down is deemed to be 12h00 on 22 October 2020.

JUDGMENT

NHLAPO, AJ

Introduction

[1] This is an application brought in term of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award handed down by the Second Respondent (the Commissioner) dated 12 February 2015. The Applicant (DEPACU) further seeks an order, in the alternative, to review and set aside the certificate of outcome handed down by the Third Respondent during conciliation. The said certificate of outcome is dated 3 October 2014. In the event that the arbitration award and/or the certificate of outcome is reviewed and set aside, DEPACU further seeks an order that the dispute be referred back to the Commission for Conciliation, Mediation and Arbitration (CCMA) for the matter to be decided afresh before a Commissioner other than the Second and/or the Third Respondent.

[2] There is also a condonation application for the late filing of the application to review the certificate of outcome issued by the Third Respondent. In this regard I hold the view that it is not necessary to determine the condonation application to the extent that the certificate of outcome was not reviewed within the period provided for in the LRA. This is so because in terms of section 158(1B) this Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the CCMA or bargaining council before the issue in dispute has been finally determined by the CCMA or bargaining council, except if the Labour Court is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined.

[3] A reading of section 158 (1B) clearly demonstrates that the LRA, at least with effect from January 2015, instructs parties to wait until the dispute that is before the commission or bargaining council has been finally determined before bringing a review application. This section applies to both conciliation and arbitration rulings or findings. It is common cause that the certificate of outcome therefore falls within what is envisaged in section 158(1B). I will therefore not concern myself with the condonation application to the extent that it refers to the certificate of outcome.

[4] The Fourth Respondent (SAPO) opposes the relief sought by DEPACU on the basis that the award of the Commissioner is one a reasonable decision maker would have reached having regard to the evidence placed before him in adjudicating the dispute in terms of section 186(2)(c) of the LRA.

[5] In my view no evidence was placed before the Commissioner premised upon the view I take on what evidence entails.

Background facts

[6] From the pleadings it appears that individual applicants represented by DEPACU were employed by the SAPO and dismissed on 23 June 2014, alternatively on later dates, following an unprotected industrial action.

[7] DEPACU thereafter referred an unfair dismissal dispute to the CCMA on 28 July 2014. On 22 August 2014 during conciliation the individual applicants opted to withdraw the referral. The withdrawal form provides that the individual/s withdrawing a dispute will not be able to re-refer or to re-open this case.

[8] A new dispute was then referred by DEPACU on behalf of the individual applicants on 22 August 2014. This new referral identified the nature of the dispute as being related to section 186 (2)(c) and 186 (1)(d) of the LRA.

[9] On 3 October 2014 the section 186 (2)(c) and 186(1)(d) disputes were conciliated. A certificate of outcome was issued stating that the matter remained unresolved. What is significant is that the certificate of outcome stated the nature of the dispute as an unfair labour practice relating to failure to re-instate or re-employ in terms of any agreement. Absent from the certificate of outcome was the unfair dismissal dispute.

[10] DEPACU thereafter referred the dispute for arbitration. The arbitration proceeding took place on 10 February 2015 and an arbitration award was issued on 12 February 2015.

Grounds of review

[11] In essence, the grounds of review articulated by DEPACU are:

11.1. Failing to observe and record that the matter was referred in terms of section 186 (2) (c) and 186 (d) of the LRA and instead only dealing with section 186 (2) (c) of the LRA.

11.2. Not dealing with section 186 (1)(d) of the LRA and only dealing with section 186 (2)(c) of the LRA.

[12] Regarding the certificate of outcome DEPACU contends that the test on review is whether or not same was correctly issued. In this regard DEPACU contends that it could not have been correctly issued due to the two reviewable errors or mistakes committed by the Third Respondent through his failure to set out or indicate that the matter also concerned section 186 (1) (d) of the LRA. The other mistake or reviewable error concerns the lack of a condonation application for the late referral. These are the two criticisms levelled against the Third Respondent. There is further an issue about the failure of the Third Respondent to assess whether the

section 186 (2)(c) dispute could be heard at arbitration or did it need to be referred to this Court.

[13] Insofar as the arbitration award is concerned the following are the grounds of review:

13.1. That the Commissioner was duty bound to hear evidence as to what the matter pertained to. Instead the Commissioner requested the representatives to set out the matter.

13.2. That the Commissioner erred in that he should have realised that SAPO was placed under administration way after the date upon which the dispute was referred to conciliation and as such the administration of the Respondent was an issue only incidental to their case.

13.3. That the Commissioner failed to realise that the matter could not be an unfair labour practice in that the individual applicants had already been dismissed and as such were no longer employees at the time, as such is finding that there was no unfair labour practice is not definitive of the dispute.

13.4. That the Commissioner erred in relying upon an agreement between COSATU and SAPO which was signed on 20 January 2014, which is over six months before the individual applicants were dismissed, in finding that there was no unfair labour practice.

13.5. The Commissioner failed to appreciate that the individual applicants’ case concerned their dismissal and the re-employment of specific persons who had been dismissed together with them or thereafter but were part of the group that was allegedly on strike. As such and in this sense the matter concerned the re-employment of some of the dismissed employees and the fairness thereof.

13.6. That the individual applicants were not re-employed despite the fact that the administrator set out that everyone who partook in the strike should return to work. Other employees were allowed to resume their duties but the same was not extended the individual applicants.

13.7. DEPACU further states that the Commissioner’s award falls to reviewed and set aside on the basis that he committed misconduct or gross-irregularities by failing to establish what the true nature of the Applicants’ claim or dispute was. In this regard DEPACU contends that the duty placed on a Commissioner to determine the true nature of the dispute extends beyond what the representatives set out as the nature of the dispute.

13.8. DEPACU also contends that the individual applicants’ case concerned their dismissals and the re-employment of specific persons who had been dismissed together with them or thereafter, and the Commissioner never came to this realisation and as a result his award is reviewable.

13.9. DEPACU also states that there was a need to lead evidence on the issue. In this regard the commissioner merely stated to the representative of the individual applicants that he did not want evidence but he just wanted the background so that he could understand the matter. In this regard, DEPACU contends, that the Commissioner effectively denied DEPACU the opportunity to lead evidence. More so in that the witnesses were in attendance and were awaiting their opportunity to be sworn in and give evidence.

13.10. Lastly the Commissioner did not indicate to the parties that the dispute would be argued by the parties without leading any evidence and that his award would thereafter be based on such arguments made by the parties.

[14] SAPO’s approach to it all is that the section 186(d) unfair dismissal dispute was withdrawn by the individual applicants. Furthermore, on the unfair labour practice dispute, SAPO contends that there was no agreement. My view is that all of this was not presented as evidence given what evidence entails.

The arbitration award

[15] In the arbitration award the following is recorded by the Commissioner:

‘[2] I must determine whether the employer has committed an unfair labour practice by not re-employing dismissed employees in terms of an agreement …

[9] Section 186 (2) (c) dictates that an employer that fails or refuses to reinstate or re-employ a former employee in terms of any agreement commits an unfair labour practice.

[10] Employees alleging this form of unfair labour practice must prove the existence of an agreement that imposes an obligation on the employer to reemploy them in the particular circumstances of the case. A mere “intimation” that the employer will consider rehiring is not enough. Such agreements usually require the employer to rehire dismissed employees if and when “suitable” vacancies arise….

[11] In the present matter there was no agreement between the parties that imposed an obligation on the Respondent to re-employ the Applicants. The call by the administrator does not establish such an agreement. In any event, the dispute by the Applicants was referred long before the administrator invited the employees to return to work. There is therefore no unfair labour practice.’

Analysis

[16] In DEPACU’s supplementary affidavit reference is made to the transcript of the arbitration proceedings. This was done to illustrate that DEPACU always contended that there was an unfair dismissal dispute. More importantly reference was made to the transcript to demonstrate that there was a need to lead evidence so as to enable the Commissioner to properly identify the nature of the dispute between the parties. What seems to have occurred is that the Commissioner merely considered the submissions he invited the parties to make insofar as their case is concerned. This was done without obtaining any consensus from the parties that their matter be determined on the basis of the arguments or submissions made by the respective representatives. This is concerning given the fact that the nature of the dispute itself is a critical aspect in the determination of the dispute.

[17] SAPO in its opposing papers states:

‘[30] I should stress, at the hearing of the arbitration the parties were given ample opportunity to present evidence in support of their allegations. To this extent the Applicants had prepared a bundle of documents consisting of somewhat of 164 pages which they took the Second Respondent through.’

[18] I suppose SAPO is not referring to evidence within the context of the law governing litigation. Evidence regulates the proof of facts in a court of law. Whereas substantive law lays down what has to be proved in any given issue and by whom, the rules of evidence relate to the manner of its proof.[2] By way of an example; section 186(2)(c) requires proof of the existence of an agreement. The law of evidence regulates the manner on how you prove the existence of an agreement.

[19] None of the rules of evidence were followed in this instance. This is illustrated by the fact that no witnesses were led, no cross – examination and re-examination were undertaken. There was further no stated or special case. In fact, none of the representatives thought that their extended opening address would be dispositive of the arbitration. More so in that the Commissioner continuously re-assured SAPO that he was merely trying to understand the basis of DEPACU’s case.[3]

[20] I am mindful of the fact that the Commissioner at some point stated: “Okay no other evidence, is there any other evidence that you want to lead?”[4] I am of the view that the Commissioner was wrong as the procedure undertaken was not in compliance with the rules of evidence.

[21] Plainly, I do not have evidence before me but documents that were put before him with no guidance from a witness on what their relevance is to these proceedings. This constitutes a gross irregularity.

[22] As stated herein above, a perusal of the transcript reveals that the Commissioner conducted an enquiry to determine the basis of the case. At the end the Commissioner states that he has a good grasp of DEPACU’s case.[5] Despite this statement from the Commissioner, it was still apparent that he did not have a good grasp of the case.[6] This should at the least have prompted him to hear evidence. This Court is now invited to consider documents, the status of which were not determined or agreed upon at the arbitration proceedings.[7] I am of the view that this is not the function of the reviewing Court.

[23] Furthermore, at the commencement of the proceedings the Commissioner stated that the dispute before him is an unfair labour practice dispute. Further that the referral documents seem to suggest that there were employees who were dismissed and that there was an agreement to re-employ.[8]

[24] In response thereto Mr Mokoena for DEPACU, the representative for the individual applicants stated that the dispute is about unfair labour practice and specifically, section 186 (1)(d).[9]

[25] Mr Mokoena further stated that the individual applicants were dismissed at various stages through 2014.[10] The issue of unfair dismissal was repeatedly mentioned and the Commissioner paid no attention to it.

[26] SAPO contends that ‘Mr Mokoena expressly indicated that the dispute at arbitration was brought in terms of section 186(2)(c) and not 186(1)(d).’ SAPO’s submission is this; premised upon such a concession from DEPACU’s representative, the Commissioner acted accordingly in determining only the section 186(2)(c) dispute without any consideration of the section 186(1)(d) dispute. I do not agree with SAPO.

[27] In this regard it is important to consider the principle set out in CUSA v Tao Ying Metal Industries and Others[11] where the Constitutional Court stated:

‘[65] A commissioner must, as the LRA requires, “deal with the substantial merits of the dispute”. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes

in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in.’

[28] I find that this is one of those matters where the Commissioner needed to hear all the evidence in order to determine the real dispute between the parties. This is so in that at the commencement of the arbitration proceedings it became apparent that identifying the real dispute was pertinent in the resolution of the dispute. The Commissioner should thus have allowed the parties to present evidence (including documentary evidence) through witnesses.

[29] In Arends and Others v South African Local Government Bargaining Council and Others[12] the Labour Appeal Court (LAC) dealt with an instance where the determination of the dispute proceeded without leading any evidence

and there was also no stated case or a special case. The LAC criticised such an approach stating that it might lead to problematic

results.[13]

[30] The LAC went further and stated:

‘[19] The manner in which the jurisdictional point was raised and the speed with which the arbitrator handed down his award meant that the appellants were not afforded an opportunity to address him on the point. To that extent the arbitration proceedings were not conducted fairly. The enquiry was undertaken in the wrong manner with the result that the appellants were denied their right to have their case fully and fairly determined. The principal cause of that denial or failure was the inept manner in which the case was put before the arbitrator. Be that as it may, the undertaking of the enquiry in the wrong or in an unfair manner by an arbitrator is an irregularity in the conduct of the proceedings reviewable in terms of section 145 of the LRA as suffused by the constitutional right to administrative action that is lawful and procedurally fair.’ [14]

(Own emphasis)

[31] In this instance no evidence was heard. Furthermore, there was no special or stated case. Instead the matter was determined on the basis of what appears to be its historical background, and not even written submissions. I find that the enquiry was undertaken in the wrong manner with the result that DEPACU was denied their right to have their case fully and fairly determined. This constitutes a gross irregularity resulting in an arbitration award that does not fall within the bounds of reasonableness.

[32] A further decision of this Court that I align myself with in my finding is that of Rabkin – Naicker J in SASSA v NEHAWU obo Punzi and Others[15] where the principle is aptly set out as follows:

‘[5] I fail to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence. A decision made in such a way means that the Labour court must answer all the following questions in the negative. . .

[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.

[33] In another judgment of this Court Department of Agriculture and Rural Development: Limpopo Provincial Government v Phooko N.O and Other[16] Moshoana J, faced with a circumstance where no evidence was led and no stated case was prepared, cited with approval the aforementioned

decision of Rabkin – Naicker J and stated:

‘[6] Therefore, the third respondent failed to arbitrate the dispute. In terms of section 186 (2) an unfair labour practice means any unfair act or omission that arises between an employer and an employee involving unfair conduct by the employer relating to the provisions of benefits to an employee. In order to answer this legal question an arbitrator must receive evidence and or be furnished with a stated case.’

[34] The above principles is well fitting to determine what transpired in this instance. It is apparent to me that also in this matter it cannot be held that the Commissioner arbitrated the dispute. This was no arbitration at all. I further find that the certificate of outcome should have included the unfair dismissal dispute in accordance with the referral

Costs

[35] On costs, I find that none of the parties are to blame for the manner in which the Commissioner conducted the proceedings. As such it will be unfair to burden any of them with a costs order.

[36] In the result the following order is made:

Order

1. The award issued by the Second Respondent on 12 February 2015 under case number GAEK 6928 – 14 is hereby reviewed and set aside.

2. The dispute is remitted to the First Respondent for determination of the dispute as referred to the CCMA by another Commissioner other than the Second and / or Third Respondents.

3. There is no order as to costs.

___________________________

S. B. Nhlapo

Acting Judge of the Labour Court of South Africa

Appearances:

For Applicant:

A. L. Goldberg

Instructed by:

Goldberg Attorneys

For the Third Respondent: C. Georgiades SC and N Mahlangu

Instructed by:

Madhlopa Inc.

[1] No. 66 of 1995, as amended.

[2] Tregea v Godart 1939 AD 1630.

[3] Transcript of the disciplinary hearing page 20 line 21 to 24.

[4] Transcript of the disciplinary hearing page 27 line 7 – 8.

[5] Transcript of the disciplinary hearing page 27 lines 12 to 13.

[6] Transcript of the disciplinary hearing page 28 lines 1 to 17.

[7] Transcript of the disciplinary hearing: page 29 lines 11 to 13.

[8] Transcript of the disciplinary hearing: page 1 lines 11 to 13.

[9] Transcript of the disciplinary hearing: page 1 lines 22 to 24 .

[10] Transcript of the disciplinary hearing: page 26, line 25 – page 27, line 1.

[11] [2009] 1 BLLR 1 (CC)

[12] [2015] 1 BLLR 23 (LAC).

[13] Ibid at para 15.

[14] Id fn 12 at para 19.

[15] (2015) 36 ILJ 2345 (LC) at para 5 and 8.

[16] [2019] JOL 45482 (LC) at para 6.