Member of the Executive Council for the Department of Public Works and Infrustructure, Eastern Cape v General Public Service Sectoral Bargaining Council and Others (PR25/21) [2022] ZALCPE 22 (26 August 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

CASE NO: PR25/21

In the matter between:

MEMBER OF THE EXECUTIVE COUNCIL FOR

THE DEPARTMENT OF PUBLIC WORKS AND

INFRUSTRUCTURE, EASTERN CAPE

Applicant

and

GENERAL PUBLIC SERVICE SECTORAL

BARGAINING COUNCIL

First Respondent

COMMISSIONER W. BLUNDIN N.O

Second Respondent

PETER NOSWORTHY

Third Respondent

Heard: 21 April 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and the Respondents' Legal Representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing -down is deemed to be 10h00 on 26 August 2022.

JUDGMENT

LALLIE J

[1] The third respondent was employed by the erstwhile Department of Roads and Public Works in the Eastern Cape Province as a Manager: Property Holdings on fixed term contracts. The duration of the initial contract was 1 February 2012 to 31 January 2014. The employment relationship persisted and the Department of Public Works and Infrastructure (the department) which had become the third respondent's employer terminated the last fixed term contract of employment on 30 September 2018. Subsequent to the termination, the third respondent referred an unfair dismissal dispute to the first respondent. The dispute was not resolved at the conciliation stage. It was then referred to arbitration. The second respondent who will be referred to as the arbitrator in this judgment was charged with the responsibility of arbitrating the dispute. In the process of resolving the dispute the arbitrator ordered the parties before him to hold a pre-arbitration meeting. In the pre-arbitration minute the third respondent claims that the termination of his employment constitutes a dismissal as contemplated

in section 186(1)(a) and/or 186(1)(b)(i) and/or 186(1)(b)(ii) of the Labour Relations Act[1] (the LRA). Dismissal is also disputed by the department.

[2] After a number or postponements the arbitration was scheduled for hearing on 10 and 11 December 2020, dates which the applicant and the third respondent had agreed to. Mr Godana (Godana) who was representing the applicant sought to have the arbitration postponed on those dates as he intended taking leave before the expiry of the leave cycle which ended on 31 December 2020. The second and third respondent did not agree to the postponement. On 8 December 2020, Godana informed the second and third respondent that he experienced symptoms of being infected with the Covid19 virus, he was on self­ quarantine and would be unable to attend the arbitration on 10 and 11 December 2020. The third respondent again did not agree to have the matter postponed and suggested that it be head virtually.

[3] On 19 December 2020, Godana consulted a doctor who booked him off until 13 December 2020 and instructed him to continue with the quantantee. The medical certificate was forwarded to the second and third respondent. When the arbitration sat on 10 December 2020, Ms Mamkeli (Mamkeli) appeared on behalf of the applicant. She was afforded an opportunity to move an oral application for the postponement of the arbitration. The application was opposed by the third respondent. The arbitrator thereafter issued an extempore ruling refusing condonation. Mamkeli left after the ruling had been issued and the arbitrator proceeded with the arbitration in the applicant's absence. On 14 December 2020 the arbitrator issued an award in which he found the third respondent's dismissal substantively and procedurally unfair. He ordered the applicant to reinstate the third respondent and pay him what he referred to as back pay in the amount of R404 458.44 and R167 5366.87 by 26 February 2021. In this application the applicant seeks an order reviewing and setting aside the ruling refusing postponement and the award on the fairness of the dismissal. The application is opposed by the third respondent.

[4] The arbitrator refused the applicant's request for the postponement of the arbitration on 10 and 11 December 2020. He accepted the third respondent's version that the application/request did not comply with rule 23 of the first respondent's rules. He added that as a panellist he could not entertain the applicant's request because rule 23(3) of the first respondents rules vested the power to entertain and determine the request in the first respondent’s secretary. He considered the application and made a finding that no good reasons surrounding the request/application were placed before him as the medical certificate which had been presented on behalf of Godana constituted hearsay evidence. He found the applicant's explanation inadequate because had Godana had failed to disclose the identity of the person he was in contact with, a supporting affidavit 'and or medical evidence'. The arbitrator relied on the applicant's failure to allocate the case to Mr Tunzi (Tunzi) who, in one of the past sittings had displayed intricate knowledge of the matter. He lambasted the applicant for not taking the third respondent's offer to have the matter heard virtually. He questioned Godana's truthfulness on the basis that he alleged that he had been exposed to the Covid 19 virus after his request to have the matter postponed on 10 and 11 December 2020 was refused. The arbitrator afforded the applicant's representative an opportunity to move an application for the postponement at the arbitration hearing. He found that the application did not take the matter further as a repetition of what Godana had said was presented.

[5] The grounds the applicant sought to rely on to have the postponement ruling reviewed and set aside are that the arbitrator committed a gross irregularity in rejecting the department's version. In reaching the decision the arbitrator failed to take into account the effects of the Covid 19 pandemic and Godana's inability to comply with the first respondent's rules in seeking the postponement. The applicant submitted that the ruling is unreasonable as valid grounds justifying the postponement were presented at arbitration. The third respondent's grounds for opposing this part of the application ware that he postponement ruling is both correct and reasonable. He insisted that the applicant failed to provide valid reasons justifying the postponement.

[6] I accept the applicant's argument that the arbitrator committed gross irregularities in the conduct of the condonation application. He firstly referred to it as a request which he lacked the authority to entertain and determine. He decided to afford Mamkeli who represented the applicant an opportunity to move an application for the postponement of the arbitration by making oral submissions. Based on the arbitrator's election, the application for postponement which was properly before the arbitrator was the one which was moved by Mamkeli. However, in taking the decision refusing the postponement, the arbitrator considered the submissions made in the request which, in his view, fell outside the scope of his powers.

[7] Amongst the factors the commissioner had to take into account in determining the postponement application was whether the applicant had provided a satisfactory explanation, prejudice that would result from the postponement and whether an appropriate costs order could not address the prejudice the third respondent would suffer as a result of the postponement. Having afforded Mamkeli an opportunity to move the application on the day the arbitration was scheduled to be heard, the arbitrator could not reasonably have expected Mamkeli to tender sufficient and admissible evidence of Godana's condition. As Godana's health condition was the reason the postponement was sought the arbitrator unreasonably criticised Mamkeli for not providing new reasons. The arbitrator decided how the postponement application would be conducted. He was therefore required to take this decision based on his preferred process. His deviation from that process was unreasonable. Further, the arbitrator's failure to consider the basic principles for determining postponement applications constitutes proof that he misconstrued the dispute before him. He conducted the enquiry whether postponement should be granted incorrectly and that rendered his ruling unreasonable. The ruling refusing the postponement is therefore reviewed and set aside.

[8] I deem it appropriate to invoke the provisions of section 145(4)(a) of the LRA. As the arbitration proceedings set down for 10 and 11 December 2020 have, as a result of the above finding been postponed. It would be appropriate to grant the third respondent the costs occasioned by the postponement. Protecting the applicant's right to be heard should not leave the applicant out of pocket. The third respondent is entitled to the costs occasioned by the applicant's failure to participate in the arbitration scheduled for 10 and 11 December 2020.

[9] The applicant submitted that the arbitrator misconstrued the dispute in respect of the fairness of the third respondent's dismissal and committed gross irregularities which rendered his decision unreasonable. In opposing this part of the application the third respondent submitted that it was not open to the applicant to bring this application. The reason being that the arbitration which resulted in the award under review was held in the applicants absence. As the award is a default award, the applicant was required to apply for the rescission on the award in terms of section 144 of the LRA before filing the application at hand. It was argued on behalf of the applicant that there was no impediment to the filing of this review application.

[10] I have considered the authorities the third respondent sought to rely on. They deal with appeals against default judgments[2]. They cannot assist the third respondent because appeals are different from reviews. The processes are governed by different legal principles. It is the duty of the reviewing court to maintain the distinction between reviews and appeals. In SA Maritime Safety Authority v Mckenzie[3], in determining whether the court had the necessary jurisdiction, it was held that jurisdiction is determined by the pleaded claim and not by some other claim that could arise from the same facts. The applicant's pleaded case is the review of the arbitration award. It is based on section 145 of the LRA. The fact that the applicant could have sought rescission of the award under review based on the same facts does not oust the jurisdiction of this court from adjudicating the review application. The rescission of the award under review does not form part of the applicant's pleaded case. Based on the applicant's pleaded case, the SA Marine case does not support the third respondent's argument. It instead is consistent with the applicant's case that no impediment prevented the filing of the review application.

[11] The arbitrator's decision to proceed with the arbitration in the department's absence was unreasonable. It was based on the unreasonable refusal to grant the department's application to have the arbitration proceedings postponed. The right to lawful, reasonable and procedurally fair administrative action is entrenched in section 33 of the constitution[4]. The effect of the setting aside of the postponement ruling is that the arbitration award cannot stand in the absence of the unreasonable decision refusing the postponement it was based on. Proceeding with the arbitration in the absence of the department constituted a violation of the department's constitutional right to fair administrative action. While constitutional rights are not absolute, they may not be denied easily. The unreasonable refusal of the postponement is a gross irregularity which violated the department's right to reasonable administrative action. It constitutes the arbitrator's failure to conduct the arbitration fairly as envisaged in section 138(1) of the LRA. The arbitration award is, in the circumstances unreasonable. It stands to be reviewed and set aside.

[12] In the premises, the following order is made:

Order:

1. The ruling issued by the second respondent on 10 December 2020 refusing the application to postpone the arbitration proceedings under case number GPBC2160/19 is reviewed and set aside and substituted with the following:

1.1 The application for postponement is granted.

1.2 The employer party is ordered to pay the employee's costs occasioned by the postponement.

2. The arbitration award issued by the second respondent under case number GPBC 2160/19 dated 14 December 2020 is reviewed and set aside.

3. The matter is remitted to the first respondent to be arbitrated de novo by an arbitrator other than the second respondeot.

4. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate T. Mqobi

Instructed by the

State Attorney

For the Third Respondent:

Advocate M. Thys

Instructed by

Butler Attorneys

[1] Act 66 of 1995 as amended.

[2] Katritsis v De Macedo 1966 (1) SA 613 (A) and Pitelll v Everton Gardens Projects CC 2010 (5) 171 (SCA).

[3] 2010 (3) SA 601 (SCA).

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