Masilonyana Local Municipality v SAMWU obo Mutsi and Others (JR899/2020) [2022] ZALCJHB 215 (8 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO: JR899/2020

In the matter between:

MASILONYANA LOCAL MUNICIPALITY Applicant

and

SAMWU obo JOSIEL MUTSI

First Respondent

SOUTH AFRICAN LOCAL

GOVERNMENT BARGAINING COUNCIL

Second Respondent

COMMISSIONER G VAN DER BERG N O

Third Respondent

Heard: 07 July 2022

Delivered: 08 August 2022

(This judgment was handed down electronically by emailing a copy to the parties. The 08 August 2022 is deemed to be the date of delivery of this judgment).

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This is an application in terms of section 145 of the Labour Relations Act[1] (LRA) in which the Masilonyana Local Municipality, (Applicant) seeks the review and setting aside of an arbitration award dated 29 June 2020, issued by the Third Respondent (Commissioner) acting under the auspices of the Second Respondent (Council).

[2] The First Respondent, The South African Municipal Workers' Union (SAMWU) acting on behalf of Mr Joel Mutsi (Mr Mutsi) opposed the review application.

Background

[3] The factual background is set out in the founding affidavit[2] to which SAMWU responded in its answering affidavit.[3]

[4] On or about April 2014, Mr Mutsi was previously employed as Manager in the office of the Municipal Manager. The Applicant subsequently dismissed him in 2015.

[5] On or about April 2017, Mr Mutsi was contacted by Mr Kau, the then Administrator of the Provincial Administration of the Free State as the Applicant was placed under administration in accordance with section 139 (2)(b) of the Constitution[4].

[6] It is alleged that during April 2019, Mr Mutsi concluded an agreement (verbal and written) with Mr Kau, the terms of which were, that he would be appointed in the dual position of Strategic Support and PMS Manager with an increase of R10 000.00 (Ten Thousand Rand) per month for performing the added responsibilities of the PMS Manager.

[7] The agreement was initially concluded verbally and later reduced to writing. It is, however, common cause that a copy of the agreement was never produced by SAMWU and/or Mr Mutsi during the arbitration proceedings.

[8] When Mr Mutsi was not paid what he contended was due to him, he referred an unfair labour practice dispute to the Council. When conciliation failed, he referred the matter to the Council for arbitration.

[9] The Commissioner found that the Applicant committed an unfair labour practice regarding benefits by not paying the agreed allowance to Mr Mutsi for performing the additional duties and functions of PMS Manager according to the verbal and subsequent signed written

agreement concluded between Mr Mutsi and Mr Kau[5].

[10] In terms of the award Mr Mutsi was awarded an amount of R60 000.00.

[11] Dissatisfied with the award, the Applicant launched this review application, seeking the review and setting aside of the award.

Grounds for review

[12] From a reading of the founding affidavit, the Applicant raises a catalogue of criticisms against the reasoning of the Commissioner and alleged that he committed an error of law that led to an unreasonable outcome.

[13] The Applicant contends that the Commissioner failed to properly assess the evidence that was before him and as a result committed gross irregularities in his application of the law.[6]

The nature of the dispute

[14] From the outset, it must be stated that it is the duty of Commissioners, and this Court, to determine the true nature of the issue in dispute between the parties before it, no matter how an applicant may choose to label or describe the dispute.

[15] In Commercial Workers Union of SA v Tao Ying Metal Industries and Others,[7] the Court said in respect of commissioners that:

‘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...The dispute between the parties may only emerge once all the evidence is in’.[8]

[16] The Constitutional Court also held that a court is not bound by the description of the dispute as may be articulated by an applicant. In National Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and Another,[9] the Court said the following:

‘It is the duty of a court to ascertain the true nature of the dispute between the parties. In ascertaining the real dispute, a court must look at the substance of the dispute and not at the form in which it is presented. The label given to a dispute by a party is not necessarily conclusive. The true nature of the dispute must be distilled from the history of the dispute, as reflected in the communications between the parties and between the parties and the Commission for Conciliation, Mediation and Arbitration (CCMA), before and after referral of such dispute. These would include referral documents, the certificate of outcome and all relevant communications. It is also important to bear in mind that parties may modify their demands in the course of discussing the dispute or during the conciliation process. All of this must be taken into consideration in ascertaining the true nature of the dispute.’

[17] Section 186(2) of the LRA, defines an unfair labour practice as

“… any unfair act or omission that arises between an employer and an employee involving- (a) unfair conduct by the employer relating to the promotion, demotion, probation (excluding disputes about dismissals for a reason relating to probation) or training of an

employee or relating to the provision of benefits to an employee …”

[18] It is also trite that the onus in establishing the existence of the unfair labour practice for the purpose of section 186(2) of the LRA rests with the applicant.

[19] In light of this onus, Mr Mutsi was therefore required to have produced sufficient evidence to demonstrate that the Applicant's conduct constituted an unfair labour practice. Mr Mutsi had relied upon the payslips and the Applicant's evidence during the arbitration that its payroll system was accurate, to prove that he was entitled to the additional R10 000.00.

[20] It is common cause that Mr Mutsi did not provide a copy of the agreement he wished to rely on or call Mr Kau as his witness in confirmation of the existence of the agreement. It is clear from the facts of this matter, that the crux of the dispute is whether there was a written agreement concluded between the parties. In light of the fact that Mr Mutsi bore the onus, it was encumbent upon him to have proven the existence of the agreement in order to establish an unfair labour practice by the Applicant in respect of its non-payment of the R10 000.00.

[21] In my view, the findings of the Commissioner were not rationally connected with the evidence led as a whole before him.

The arbitration proceedings and the award

[22] The test that this Court applies in determining whether the arbitrator's decision is reviewable is that as laid down in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[10] (Sidumo). It is therefore, settled that this Court does not have review power over an arbitration award that falls within the bands of reasonableness.

The test is that an arbitration award must be so unreasonable to a point that no reasonable decision maker may reach it.

[23] This test decisively draws a distinction between a review and an appeal. It is further trite, that this Court is bereft of appeal powers over arbitration awards except as provided for in the LRA.

[24] The dispute between the parties was referred to the Council in terms of an unfair labour practice. The matter turns on the interpretation and application of the agreement concluded between Mr Mutsi and Mr Kau, which provided for the terms and conditions of his appointment into the Strategic Support and PMS Manager positions.

[25] There is a dispute as to whether Mr Mutsi was lawfully appointed into the position of Strategic Support and PMS Manager and whether he was entitled to the additional payment of R10 000.00 for performing the dual role.

[26] The Applicant contends that the award of the Commissioner is reviewable on the basis that –

26.1 he committed gross irregularities in his assessment of the evidence that was before him and in his application of the law; and

26.2 he made an unreasonable inference to the existence of an agreement concluded between Mr Mutsi and Mr Kau.

[27] It was correctly pointed out by the Applicant that the onus was on Mr Mutsi to demonstrate that he was entitled to the relief that he seeks. What this implies is that he must demonstrate that a lawful agreement was concluded between himself and the Applicant and that an additional R10 000.00 was due to him insofar as he performed a dual role in terms of the contract of employment.

[28] There are inherent difficulties with the submissions made on behalf of Mr Mutsi, taking into account the principles already set out above with regards to what approach the Commissioner was supposed to adopt in the face of the dispute that was before him. The issue is whether the Commissioner acted fairly, considered, and applied his mind to the issues before him in order to arrive at a reasonable outcome. This question in my view should be answered in the dissenting.

[29] There are inherent difficulties with Mr Mutsi's case in that they are more emotive than legal in substance. It is permissible for an employee to feel aggrieved by the fact that he or she was not paid what he or she is of the view was due to him or her in terms of verbal and/or written agreement. It is, however, not permissible to fail to prove the existence of such contract, despite relying on it and bearing the onus to do so.

[30] It is incorrect to take a negative view of the Applicant's failure to call Mr Kau to dispute Mr Mutsi's version of what transpired leading up to the alleged conclusion of the agreement.

[31] Mr Mutsi equally had the opportunity to call and or subpoena Mr Kau to confirm the verbal agreement that was concluded between them, which is the subject of the dispute. This is more so given that he could not produce the written agreement upon which he led evidence to the effect that it recorded such verbal agreement.

[32] He simply left his fate in the hands of the Applicant with bated breath hoping that they will call Mr Kau to dispute his version, forgetting that it is not its obligation to prove that a contract did exist that entitles Mr Mutsi to payment of an additional R10 000.00. That burden and onus lay with him as the person claiming same.

[33] The unreasonableness of the factual finding can only be determined by examining the record in relation to the factual findings made by the Commissioner.

[34] As already stated above, the grounds for review of an arbitration award are set out in Section 145 of the LRA.

[35] However, these grounds are suffused with the requirement of reasonableness – this much was settled by the Constitutional Court in Sidumo,[11] in which Navsa, AJ held that the “test” is:

‘Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?’

[36] The question that flows from this standard is then how this Court determines the reasonableness or otherwise of a decision-maker’s

decision. In this respect, some guidance is provided by the Supreme Court of Appeal in Herholdt v Nedbank Ltd, [12] in which the test was summarised, as follows:

‘A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator.’

[37] It is thus obvious that reasonableness can only be assessed with regard to the evidence before the decision maker.

[38] I am overall satisfied that the Commissioner misunderstood and failed to appreciate the dispute he was called upon to arbitrate. He further, failed to apply his mind to the issues and the evidence that was before him and consequently came to a conclusion which on the facts as presented to him is unassailable.

[39] In coming to his conclusion, the Commissioner implied that the Applicant is required to pay Mr. Mutsi R10 000.00 in circumstances where he failed to prove the existence of the contract of employment that entitled him to such payment. This is despite having the onus to do so.

[40] Worst still, Mr. Mutsi had contended that his appointment was verbal but subsequently reduced in writing. He however, failed to prove the latter.

[41] I am therefore not satisfied that the Commissioner's reasoning and conclusions fall within the band of reasonableness, and the decision cannot be said to be one that a reasonable decision-maker would reach. By all accounts, the decision is not reasonable considering the material that was placed before him.

[42] In the results, the following order is made:

Order

1. The arbitration award dated 29 June 2020 and issued by the Third Respondent under case number FSD081915 is reviewed and set aside.

2. The Applicant did not commit an unfair labour practice.

3. There is no order as to costs.

H. Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

J Hlongwane (with him W Mamma)

Instructed by:

De Swardt Myambo Hlahla Attorneys

For Respondent:

T du Preez

Instructed by:

Kramer Weihmann Inc.

[1] No 66 of 1995.

[2] P 7 at paras 5.1 – 5.5 of the pleadings and affidavit bundle.

[3] Pp 54 – 55 at paras 10 – 11 of the pleadings and affidavit bundle.

[4] Constitution of the Republic of South Africa, 1996.

[5] P 24 at para 59 of the pleadings and affidavit bundle.

[6] P 8 at para 6 pf the pleadings and affidavit bundle.

[7](2008) 29 ILJ 2461 (CC) at para 66.

[8] See also: Coin Security Group (Pty) Ltd v Adams and Others (2002) 21 ILJ 924 (LAC) at para 16; Fidelity Guards Holdings (Pty) Ltd v Professional Transport Workers Union and Others (1) (1998) 19 ILJ 260 (LAC) at 269G-H; Viney v Barnard Jacobs Mellet Securities (Pty) Ltd (2008) 29 ILJ 1564 (LC) at para 37; Kroukam v SA Airlink (Pty) Ltd (2005) 26 ILJ 2153 (LAC) at 2162F; SA Chemical Workers Union and Others v Afrox Ltd (1999) 20 ILJ 1718 (LAC) at 1726; and Van der Velde v Business and Design Software (Pty) Ltd and Another (2006) 27 ILJ 1738 (LC) at 1745I.

[9] (2003) 24 ILJ 305 (CC) at para 52.

[10] (2007) 28 ILJ 2405 (CC) at para 110.

[11] Sidumo supra at para 110.

[12] (2013) 34 ILJ 2795 (SCA) at para 25.