Etsclumaier v Pandya and Others (J967/98) [1998] ZALC 75 (27 September 1998)

IN THE LABOUR COURT OF SOUTH AFRICA

AT JOHANNESBURG

Case Number: J967/98

In the matter between

J.K.Etschmaier Applicant

and

Commission for Conciliation Mediation First Respondent

and Arbitration

Nissan S.A. (Pty) Ltd Second Respondent

N. Pandya Third Respondent

JUDGMENT

OOSTHUIZEN AJ

[1] The Applicant applied to this court for an order reviewing an arbitration award in the following terms:

1. setting the arbitration award of third Respondent aside;

2. directing the CCMA to enrol the dispute for arbitration before a commissioner other than the third Respondent.

[2] He set out the following grounds as the basis for the review:

a) Third Respondent exceeded the powers bestow (sic) on a Commissioner in terms of Labour Relations Act, 1995 (Act 66 of 1995) in that he found that the referral of my dispute with second Respondent to first Respondent should have been signed by myself instead of my attorney, assisting me in this matter.

b) Third Respondent committed a gross irregularity in the conduct of the arbitration in:

i) not referring the points in limine raised by second Respondent to the Labour Court for adjudication;

ii) allowing second Respondent to raise points in limine for the first time at the inception of the hearing, thereby prejudicing myself in preparation of my case and suitably addressing these points;

iii) considering himself bound by a decision of the Labour Court regarding the signing of the referral form of the dispute to first Respondent.

[3] There is a dispute between Applicant and second Respondent (Applicant’s former employer) relating to the fairness of his dismissal. The Applicant referred the dispute to the Commission for Conciliation, Mediation and Arbitration (“the CCMA”) in terms of section 135 of the Labour Relations Act 66 of 1995 (“the Act”). His referral form 7.11, required by the regulations to the Act, was signed by one M.C. van der Berg, who is a practising attorney. This fact is undisputed.

[4] When conciliation failed the Applicant’s request for arbitration form 7.13, also required by the regulations, was signed

by Mr. M. Steyn who was described in the arbitration award as a friend of the Applicant. Mr. Steyn argued on behalf of the Applicant

at the arbitration with the consent of the second Respondent.

[5] The hearing of the arbitration took place on 31 March 1998 before the third Respondent, Commissioner N.Pandya. The second

Respondent raised two points in limine.

[6] The first point related to the fact that the dispute should have been referred to an “industrial council” instead of the CCMA for conciliation. The Commissioner dismissed the point. Although the second Respondent argued before me that the Commissioner was wrong in his finding , the second Respondent did not file a cross application to review that decision and I make no finding in that regard.

[7] The second point in limine raised the issue that the Applicant himself had not signed the referral to conciliation (LRA form 7.11) or the request for arbitration form (LRA form 7.13).

[8] It was argued that the signature of the Applicant himself was a requirement of the Act or put another way, on the facts, could an attorney sign the referral form (LRA form 7.11) on behalf of the Applicant.

[9] The Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others 1997 (11) BLLR 1475 (LC) case held that the provisions of the Act, read with the regulations, required LRA form 7.11 to be signed by the employee him or herself.

[10] Relying on that judgement, the Commissioner held that the referral form i.e. LRA Form 7.11, should have been signed by the

Applicant himself. He said:

This is a decision of the Labour Court and sitting in arbitration I am bound by it.

...

4. FINDINGS

The referral of form 7.11 signed by the employee’s attorneys was invalid. CCMA had no jurisdiction to arbitrate in the matter.

[11] The Applicant has applied to this court for the order set out above (para [1]) reviewing that arbitration award.

[12] The Commission is an independent body with jurisdiction in all the provinces. It was not created as a court of law (ss 112-114 of the Act read with ss165 and 166 of the Constitution). When it conducts compulsory arbitration in terms of the Act it involves the exercise of a public power and function, because it resolves disputes between parties in terms of the Act without needing the consent of the parties.

[13] The Labour Court is a court of law (s 151(1) of the Act) with judicial authority in terms of the Constitution (s165(1) of the Constitution).

[14] The Labour Court may review the exercise of functions by the CCMA under s145, in particular s145(2)(a) of the Act:

145 Review of arbitration awards

(1) Any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the award -

(2) A defect referred to in subsection (1), means -

(a)that the commissioner -

(i) committed misconduct in relation to the duties of the commissioner as an arbitrator;

(ii) committed a gross irregularity in the conduct of the arbitration proceedings; or

(iii) exceeded the commissioner’s powers; or

(b)that an award has been improperly obtained.

[15] Until recently, there was a legal debate as to whether s158(1)(g) of the Act also empowered this court to review proceedings.

[16] Section 158(1)(g) provides that:

(1) The Labour Court may -

(g) despite section 145, review the performance or purported performance of any function provided for in this Act or any act or omission of any person or body in terms of this Act on any grounds that are permissible in law.

[17] The application of s158(1)(g) would have meant the granting of a general review power to the Labour Court over any function, act or omission under the Act. The Labour Appeal Court has now resolved the issue by holding that the review of arbitration proceedings under the auspices of the Commission must proceed under s145 of the Act (See Carephone (Pty) Ltd v Marcus NO and Others Unreported decision of the LAC, Case Number JA52/98 at p.13 para 29 ).

[18] In addressing the standard of review, after analysing the concept of administrative action, the Labour Appeal Court held:

[36] In determining whether administrative action is justifiable in terms of the reasons

given for it, value judgments will have to be made which will, almost inevitably, involve the consideration of the ‘merits’

of the matter in some way or another. As long as the judge determining this issue is aware that he or she enters the merits not

in order to substitute his or her own opinion on the correctness thereof, but to determine whether the outcome is rationally justifiable, the process will be in order.

[37] Many formulations have been suggested for this kind of substantive rationality

required of administrative decision makers, such as ‘reasonableness’, ‘rationality’, ‘proportionality’ and the like (Cf. e.g. Craig, Administrative Law, above, at 337-349; Schwarze, European Administrative Law, 1992 at 677). Without denying that the application of these formulations in particular cases may be instructive, I see no need to stray from the concept of justifiability itself. To rename it will not make matters any easier. It seems to me that one will never be able to formulate a more specific test other than, in one way or another, asking the question: is there a rational objective basis justifying the connection made by the administrative decision-maker between the material properly available to him and the conclusion he or she eventually arrived at? In time only judicial precedent will be able to give more specific content to the broad concept of justifiability in the context of the review provisions in the LRA.

[19] The Applicant had argued that s158(1)(g) was also applicable to his application despite the clear wording linking his grounds of review to s145, while the second Respondent’s counsel argued against a wide interpretation.

[20] This is now academic and the above principles of justifiability will be applied to this application.

[21] I turn to the grounds of review.

The Commissioner exceeded his power

[22] The Applicant contends that the Commissioner exceeded his power by finding that the Applicant himself should have signed the referral form 7.11, instead of his attorney.

[23] A Commissioner will exceed his powers, “when the Commissioner strays from the ambit of the Commissioner’s jurisdiction or when the Commissioner makes a ruling or awards a remedy which is beyond the powers of the Commissioner” (see Landman & van Niekerk: Practice in the Labour Courts, at pA-29 para 4).

[24] This may also occur when “his actions are not justifiable in terms of the reasons given for them and that he has accordingly

exceeded his constitutionally constrained powers under s145(2)(a)(iii) of the Act” (Carephone supra at p.23 para [53]).

[25] Did the third Respondent exceed his powers by that finding? Prima facie, one would think not. He considered the matter, referred to a relevant case, and carried out the requirement of investigating his jurisdiction (See Avroy Schlain Cosmetics Pty (Ltd) v Kok and Another (1998) 19 ILJ 336 (LAC) at 346 G-H).

[26] In the context of conciliation proceedings at the CCMA, the Labour Appeal Court has held:

The commissioner was obliged to enquire into the facts to decide whether he had jurisdiction to conciliate.

(See Zeuna-Starker Bop (Pty) Ltd v NUMSA, Unreported decision of the LAC, Case Number JA10/98, at para [6]).

[27] However, it will be noted that the third Respondent’s finding relates to the referral form 7.11 to conciliation and not the request for arbitration, LRA form 7.13, despite the fact that the second Respondent also complained about LRA form 7.13 at the arbitration. The reason for the omission is not apparent from the papers.

[28] Form 7.11 is a referral to conciliation. The Commissioner at the conciliation had the power, indeed was obliged, to investigate

the issue of his jurisdiction at the time (Zeuna-Starker Bop (Pty) Ltd v NUMSA, supra).

[29] The papers make no mention of this act. However, it is clear that the dispute was referred to conciliation on the relevant

referral form before a Commissioner in terms of s135, who was obliged to investigate his jurisdiction.

[30] Thereafter the third Respondent at the arbitration in terms of s136 found that the referral form to the previous Commissioner at the conciliation was invalid.

[31] Does the arbitration commissioner (the third Respondent) have that power?

[32] As this particular point was not argued at the hearing, I invited the parties to submit written argument on the issue.

[33] I have considered the arguments. In accepting the invitation, the second Respondent supplemented its heads of argument with further detailed submissions. It relied on a number of grounds for the contention that the arbitrator had not exceeded his power by his decision on the referral form 7.11.

[34] It was submitted, inter alia, that despite any criticism which may be levelled against the format of the award, it amounted to a decision that the Applicant had not complied with the provisions of s191 (which requires a referral or request to be made by the Applicant/employee).

[35] Consequently, it was argued that the first Respondent (CCMA) and the third Respondent did not have jurisdiction in the dispute.

[36] A reference was made to R v Dhlumanyo and Another 1948 (2) SA 677 (A) at 702:

No judgment can ever be perfect and all embracing.

[37] It is no doubt true that there is no perfect judgment, but when a judgment omits to make a finding on the very point at issue, I am not satisfied that the imperfection of the judgment is a convincing explanation for the omission.

[38] It was further submitted that the first Respondent (CCMA) acting as a conciliator in terms of s191(1) - (4) is not empowered to make a final and binding award.

[39] Dempster, CA v Commissioner Nerine Kahn and Others (an unreported decision of the Labour Court, Case number J94/98, at para [5]) was cited as authority for the principle that a point in limine (such as a dispute over whether the Applicant was an employee as defined) should only be entertained during adjudication or arbitration.

[40] Insofar as that finding is inconsistent with Zeuna-Starker Bop (Pty) Ltd v NUMSA, supra, the latter as a Labour Appeal Court judgment will apply (See also Richards Bay Iron & Titanium (Pty) Ltd t/a Richards Bay Ltd & Another v Jones & another, an unreported decision of the Labour Court, Case Number D81/97). It seems to me, on the authority of the Zeuna-Starker judgment, that a conciliator will be obliged to enquire into such matters in order to establish whether he or she has jurisdiction to conciliate the dispute. In other words, a conciliator is required to investigate jurisdictional facts, which would include whether the Applicant was an employee as defined or whether the referral forms have been correctly completed.

[41] This, however, does not answer the question whether the third Respondent as arbitrator can rule on an issue on which the first Respondent as conciliator should also consider as a jurisdictional fact.

[42] The Applicant submitted in his supplementary heads of argument that the conciliation process was “functus officio” and that if the Applicant wished to attack jurisdiction on the grounds of an invalid referral form 7.11, it should have done so at the conciliation hearing, or by taking the first Respondent on review at that stage. Indeed, the Applicant argued that by making his finding the second Respondent arbitrator had reviewed the first Respondent’s conciliation process without the power to do so.

[43] The second Respondent, however, maintains that the third Respondent arbitrator had the power to decide on his jurisdiction

with reference to the validity of the previous process.

[44] I am satisfied that the third Respondent could decide on his jurisdiction (see Avroy Schlain Cosmetics supra at 346 G-H; also Benicon Earthworks and Mining Services v Jacobs NO and Others (1994) 15 ILJ 801 (LAC) at 804C-E).

[45] It is my judgment that such enquiry must of necessity include the jurisdictional facts as to whether there has been a referral to conciliation, whether the prescribed 30 days (in terms of s191(5)) have expired, and whether the dispute is unresolved.

[46] in my view this enquiry would extend to the referral form to conciliation, despite the fact that it is also an issue for the consideration of the conciliator.

[47] In other words, a finding of the arbitrator on the referral form to conciliation is not an act of review, but rather an act

within his powers to enquire into his own jurisdiction. Whether or not the issue had been argued before the first Respondent or not does not, in my view, affect his powers to enquire into the issue of referral and to make a finding in that regard.

[48] Accordingly I find that the third Respondent did not exceed his powers as alleged by the Applicant.

[49] As tempting as it may be to pass judgment on the merits of the Commissioner’s decision regarding the validity of form 7.11, I will refrain from doing so.

[50] Moreover, form 7.13 is not in issue before this court, and it is also not necessary for me to comment on it. Save to say that prima facie it seems an extraordinary proposition for the legislature to have intended that representatives such as legal practitioners be excluded from signing such forms on behalf of their client, or any other authorised agent on behalf of a principal.

Gross Irregularity:

[51] In analysing the term “gross irregularity”, Landman & van Niekerk, supra, write at p.A - 28:

(1) Gross irregularity must be given its ordinary meaning.

(2) In giving ‘gross irregularity’ its ordinary meaning it is necessary to take into account the meaning of the phrase in other statute subject to the qualification expressed above.

(3) The very expression ‘gross irregularity’ means that not every irregularity will amount to a defect. The irregularity must be a gross one and must therefore be a material one.

(4) A commissioner may be bona fide but nevertheless commit a gross irregularity. If the gross irregularity was committed with malice it would probably also constitute misconduct.

(5) it is not possible to give an exhaustive list of possible irregularities which may be committed or acts which if omitted would constitute the same. A failure to comply with the tenets of the audi alteram partem rule would be a foremost example.

(6) A gross irregularity may be a patent or a latent one.

Not referring points in limine to Labour Court

[52] The Applicant maintains that the Commissioner was grossly irregular in not referring the points in limine raised by the second Respondent to the Labour Court for adjudication.

[53] There was no duty on the Commissioner to refer the points in limine to the Labour Court. The CCMA has the power to decide on its own jurisdiction (see Avroy Schlain supra; Benicon Earthworks and Mining Services supra at 804C-F; Zeuna-Starker Bop (Pty) Ltd v NUMSA, supra, at p.3 para 6; Also Richards Bay Iron & Titanium, supra) and to deal with pertinent jurisdictional issues raised as points in limine.

[54] This point is dismissed

[1]

Allowing points in limine to be raised at inception of Arbitration hearing

[55] The Applicant also contends that the Commissioner committed a gross irregularity in allowing the employer respondent to raise

points in limine at the inception of the hearing, thereby prejudicing him in preparation of his case and suitably addressing these points.

[56] Such an act by the Commissioner is not a gross irregularity if it is an irregularity at all. It is a matter of common practice. The fact of allowing points in limine to be raised cannot in itself prejudice a litigant in the preparation of his case and suitably addressing them.

[57] This point is dismissed.

Considering himself bound by a decision of the Labour Court

[58] The Applicant maintains that the Commissioner was grossly irregular in considering himself bound by the decision of the Labour

Court namely Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA & Others 1997 (11) BLLR 1475 (LC) regarding the signing of the referral form to the CCMA.

[59] Such an act is not irregular at all. Indeed it is a principle to be encouraged.

[60] In my judgment, the final decision of the arbitrator was justified. The second respondent has asked for costs. I am not inclined in the circumstances of this case to order that the costs should follow the result. My sense of equity indicates, particularly

with the personal appearance of the Applicant and the nature of the issue, that in fairness there should be no order as to costs.

[61] Accordingly, I make the following order:

61.1 The application is dismissed.

61.2 There is no order as to costs.

M OOSTHUIZEN AJ

DATE OF HEARING: 4 September 1998

DATE OF JUDGMENT: 28 September 1998

For Applicant: Mr. J.K. Etschmaier (Applicant)

For Respondent: Adv. I. Gendenhuys

Instructed by: Wentzel, Viljoen & Swart Attorneys & Conveyancers