Kekae and Others v Department of Transport, Limpopo and Others (JR2608/19) [2021] ZALCJHB 418 (15 October 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, POLOKWANE

Not Reportable

CASE NO: JR 2608/19

In the matter between:

KEKAE L.W First Applicant

SHITLHONHU P Second Applicant

TSHIKONELO N. J Third Applicant

TENDANI M. A Fourth Applicant

MULONDO N. A Fifth Applicant

And

DEPARTMENT OF TRANSPORT, LIMPOPO First Respondent

DEPARTMENT OF PUBLIC WORKS, LIMPOPO Second Respondent

GENERAL PUBLIC SERVICE SECTORIAL

BARGAINING COUNCIL Third Respondent

DANIEL SEOPELA N.O Fourth Respondent

Date heard: 13 October 2021

Date delivered: 15 October 2021

JUDGMENT

MANGENA AJ

[1] This is an application to review and set aside an award issued by the fourth respondent in case number GPBC 383/2013 under the auspices of the third respondent.

[2] The applicants are all former employees of the Department of Roads and Transport, Limpopo and have since been transferred to the Department of Public works, Limpopo upon re-configuration of the Provincial Departments.

[3] The applicants referred a dispute on the application and interpretation of a collective agreement to the third respondent for conciliation. When conciliation failed, it was referred to arbitration. In the summary of the facts of the dispute, the applicants stated that the employer department failed to translate them in terms of the OSD for Project Managers. It was further stated that they are performing duties as project managers within the scope and meaning of Resolution 5 of 2009. Accordingly, the employer was required to translate them.

[4] The matter was in due course allocated to the fourth respondent for arbitration on 07 August 2017 and the award was issued on 31 October 2017. It is this award the applicants seek to review and set aside.

[5] The applicants attack the award on various grounds and chief amongst them is that the arbitrator committed a gross irregularity in the conduct of the arbitration proceedings in that:

5.1 He misconceived the whole nature of the enquiry, or his duties connected therewith.

5.2 He committed misdirection that cumulatively add up to a failure of justice or that are so fundamental as to vitiate the award.

5.3 He showed lack of understanding of issues before him and as such could not identify where the issues lie.

5.4 He failed to deal with the substantive merits of the dispute.

[6] The award state that “the parties have agreed not to lead oral evidence in this arbitration. They have agreed to submit written heads of arguments as per the signed process agreement and such were considered in this award. The arbitration was decided on papers. The respondent submitted bundle B comprises (sic) of 24 pages and the applicant submitted bundle A comprises (sic) of 127.”

[7] In his analysis of the facts giving rise to the dispute, the arbitrator says:

It is the case of the applicant that they qualified on the 30th June 2009 to be translated into OSD, as construction Project Managers. It is the case of the respondent that the applicants are not performing the duties of an OSD occupational class. Regarding the issue to be decided he stated that he was required to decide whether the conduct of the respondent by not translating the applicants into OSD constitute incorrect interpretation and application of GPSSBC Resolution 5 of 2009. It is not clear on the award how this determination was going to be made on the papers more especially when the dispute was factual.

[8] By agreeing to decide the matter on papers, the arbitrator abdicated his responsibility to adjudicate a dispute and by so doing failed in the performance of his duties. The court had an occasion to caution both practitioners and commissioners on the dangers of acceding unquestioningly to process suggested by practitioners in the conduct of the arbitration proceedings where they base their findings on written submissions as in this case. In the Department of Correctional Services v The GPSSBC and Others[1] Moshoana J said:

“In casu, the third respondent condoned an agreement not to lead evidence. The arbitration award record that “it was agreed between the parties that this matter will be disposed of by way of written submissions”. This may have been a convenient manner to deal with the matter, but such an approach renders the award issued susceptible to review which ultimately sacrifices the principle of speedy resolution of dispute. (See Arends and Others v SALGBC and others[2]; SASSA v NEHAWU and others[3]).

[9] In Nxumalo v CCMA and Others[4], Thlothlalemaje J commented on the powers of the commissioner and their duties during the conduct of the proceedings as follows:

[16]” It is accepted that in terms of section 138(1) of the LRA, a commissioner may conduct arbitration proceedings in any manner that

he/she considers appropriate in order to determine the dispute fairly and quickly, but must deal with the substantial merits of the dispute with the minimum of legal formalities. The basic premise of such proceedings is that of natural justice and a fair unbiased hearing. In this regard, it has been held that arbitrators therefore need to exercise their entitlement to conduct the proceedings in the manner they deem appropriate, with the necessary circumspection and good sense. The main objective of review proceedings is to determine whether a Commissioner has afforded parties before him or her a fair hearing, and this is determined from the manner in which the hearing was conducted, from the manner in which the Commissioner approached the issues before him or her, or from the conclusions reached.”

[10] In casu, from the summary of the facts it should have been clear to the commissioner that there was a need to hear oral evidence on the nature of the duties performed by the applicants in order to determine if they fall within the scope of GPSSBC Resolution 5 of 2009. This is so because right at the outset, in the referral form, the applicants contended that they qualify for translation by virtue of the duties they perform in the Department. It was accordingly incumbent upon the commissioner to hear the evidence on this material aspect and have it tested under cross-examination before making a finding as to whether the employer was correct to exclude them from translation as required by Resolution 5 of 2009.

[11] Instead of hearing oral evidence, the commissioner relied on a bundle of documents summited to him and concluded that the employer department did not misinterpret and misapply GPCCBC Resolution 5 of 2009. This was plainly wrong.

[12] In reaching his conclusion, the commissioner relied on DPSA Circular 5 of 2009 as well as the outcome of the assessment made by DPSA at the request of the Department. The reliance on these documents was misplaced because DPSA does not have the authority and power to interpret a collective agreement. Cause 18 of the collective agreement on Resolution 5 of 2009 makes it abundantly clear that: should there be a dispute about the interpretation or application of this agreement, any party may refer the matter to the council for resolution in terms of the dispute resolution procedure of the council. DPSA has not been designated as a forum for the adjudication of disputes on OSD. It has only offered itself to assist the departments whenever they have a problem with implementation of the agreement. Its decision could not have been intended to be final such that a commissioner would consider himself or herself bound by it.

[13] By failing to hear oral evidence, the commissioner denied the parties an opportunity to address him on a material point in dispute. To that extent the arbitration proceedings were not conducted fairly. The enquiry was undertaken in the wrong manner with the result that the parties 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 him[5].

[14] Guided by the authorities cited above, I find no difficulty in concluding that the award is a nullity and susceptible to review and set aside.

[15] Consequently, it is ordered that: -

Order:

1. The award issued by the fourth respondent under case number GPBC 383/2013 is hereby reviewed and set aside.

2. The dispute is remitted to the third respondent to be determined by another panellist other than the fourth respondent

3. There is no order as to costs.

M. I. Mangena

Acting Judge of Labour Court of South Africa

Appearances:

For the Applicant: Grace Makoti Attorneys

For the Respondents: State Attorney Johannesburg

[1] (JR 625/17) [2018] ZALCJHB 415 (29 November 2018)

[2] [2015] 1 BLLR 23 (LAC), para 15

[3] C 233/14, para 8

[4] [2016] ZALCPE, 22 (17 November 2016)

[5] Arends, supra, para 19