Minister of Correctional Service v Matjele and Others (JR 1640/11) [2013] ZALCJHB 279 (29 October 2013)

7

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURTOF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Reportable

Case no: JR 1640/11

In the matter between:

THE MINISTER OF CORRECTIONAL SERVICE .................................................Applicant

and

POPCRU OBO E K MATJELE ................................................................First Respondent

MARTIN SAMBO N.O .........................................................................Second Respondent

THE GENERAL PUBLIC BARGAINING SERVICE

SECTORAL BARGAINING COUNCIL ...................................................Third Respondent

Heard: 18 October 2013

Delivered: 29 October 2013

Summary: review of refusal of Commissioner to grant condonation. Principle governing condonation in arbitration proceeding

______________________________________________________________________

MOLAHLEHI, J

Introduction

This is an application to review and set aside the arbitration award of the second respondent (the arbitrator) made under case number GPBC 231-11 dated 15 April 2011 in terms of which the dismissal of the individual applicant, Mr Matjele hereinafter referred to as “the employee,” was found to have been unfair.The application includes an application for the late filing of the review application was also made.

The employee on the other hand has applied for the dismissal of the review application and for the arbitration award to be made an order of the Court.

The background facts

The employee was employed by the applicant as a grade G correctional officer stationed at Attridgeville. On 29 May, the employee was stationed at the main gate of the Correctional Service’s center with Messrs Ramela and Bokaba to deal with access control. The policy of the applicant is that officers conducting searches at the gate are not supposed to carry guns whilst conducting a search at the gates.

On the day in question, Mr Bokaba in compliance with the policy of the applicant placed his fire arm in a lockable cabinet. According to the applicant, the employee removed the firearm and only returned it at 2h00 in the morning.

The applicant accused the employee of failing to submit a report regarding the incident including failure to comply with policy.

The ground for review

The applicant contends that the arbitration award is reviewable because the decision reached by the arbitrator is not one which could be reached by a reasonable arbitrator having regard to the evidence which was properly placed before the arbitrator. The arbitrator is also criticized for misdirecting himself and failing to apply his mind in refusing to grant a postponement when it was so requested by the applicant.

Furthermore the applicant contends that the arbitrator misdirected himself when he found that the dismissal of the third respondent was unfair when his version was presented for the first time during the arbitration hearing.

It was argued on behalf of the applicant that the review essentially turned on the refusal to grant the postponement by the arbitrator. It was in this respect submitted that the refusal to grant the postponement was unreasonable as it was the first time as opposed to the number of times that postponement was granted in favour of the respondent.

It was also argued that the arbitrator failed to take into account that the facts and the circumstances of the case which dictated that a postponement should be granted.

Legal principles

It is trite that in considering an application for a postponement, an arbitrator or Commissioner has a discretion to exercise which has to be exercised fairly and reasonably. It has been accepted that postponement shall be readily granted in arbitration proceedings in light of the provisions of the Labour Relations Act which requires that disputes must be resolved expeditiously. In terms of section 138(1) of the Labour Relations Act, the arbitrators are directed to resolve disputes fairly and quickly. In this respect the Court in Real Estate Services (Pty) Ltd v Smith, held that:1

‘12. In my view postponements in arbitration proceedings in terms of the Act should be granted on a less generous basis than is done by the Courts. Arbitrations are designed to finalise disputes fairly and quickly with minimum legalities (Section 138 (1) of the Act). Cost orders in postponements are limited by section 138 (10) of the Act. Therefore, the discretion exercised by the Commissioners of the CCMA in this regard should be even less open to interference by the Labour Court sitting as a court of review.

13. The CCMA is an institution which, from all accounts, is a very busy one. Commissioners set down dates for conciliation and arbitration

and they have a discretion whether to grant postponements or not...’

The Commissioner dismissed the application for a postponement on the basis that there had been previous postponements requested by the applicant. It was also rejected on the basis that there was no agreement to have the matter postponed. The Commissioner afforded the applicant an opportunity to obtain another lawyer. She failed to do this and did not explain why another attorney could not be found. She did not explain if all the witnesses were unavailable. The applicant had to deal with this question of alternative lawyer but failed to do so.

In Carephone (Pty) Ltd v Marcus N.O. and Others,2 the Labour Appeal Court agreed with the decision of the arbitrator in refusing to grant postponement on the basis that there was no satisfactory explanation for the need for such a postponement. It was further found in that case that even if the explanation proffered by the applicant was acceptable, the employee's prejudice resulting from a postponement could not be cured by the Commissioner making a costs order.

Evaluation

It is generally accepted that the reasonable decision maker test which is applied in determining the reviewability of an arbitration award entails taking into account not only the reasons given by the arbitrator but also all the material that properly served before him or her. This is indeed the approach I have adopted in assessing whether the refusal to grant a postponement by the arbitrator was reasonable taking into account his reasoning, including all the material factors which were placed before him.

It is important to note that the arbitrator allowed the applicant to make the application for the postponement on the day of the hearing. The essence of the application as reflected in the transcript of the arbitration proceedings was that:

‘I have been requested by the Department of correctional services to apply for a postponement on the basis that the official was appointed to represent the Department has been withdrawn, a new official has since been appointed to represent the department.’

The critical weakness in the case of the applicant is the failure by the applicant’s representative to provide the details of the person who he alleged had been appointed to deal with the case and the withdrawal of the previous one.

It was conceded on behalf of the applicant during the hearing of the review application that the name of the new person was pertinent and central to the consideration of whether a satisfactory explanation for the need to postpone had been made. It is also important to note that there is no evidence as to when the person who handed the matter previously was withdrawn and when did the new person assume the responsibility to represent the applicant in this matter.

It is trite that in an application for a postponement, not only should the applicant provide a satisfactory and reasonable explanation why they need a postponement but he or she should also take the arbitrator into his or her confidence by disclosing or placing before him or her all or relevant facts which should assist in the assessment as to whether a postponement should be granted.

As indicated earlier, the analysis of the facts indicates very clearly that insufficient information was placed before the arbitrator and also that the approach adopted by the applicant did not show any confidence in the arbitrator. This in particular relates to the failure by the applicant’s representative to provide the details as to who the new person was.

The argument that the matter was previously postponed on a number of occasions at the instance of the employee does not advance the case of the applicant. The transcripts of the arbitration proceedings, in fact reveals that on the previous occasion the matter was postponed because despite proper notification of the set down the applicant failed to attend the arbitration hearing.

The reason for the application to postpone could also be interpreted to relate to the preparedness of the applicant’s representative to proceed with the matter on the day. In Kara NO and Others v Department of Land Affairs,3 the Court held that:

‘A Court should be slow to refuse a postponement where the true reason for a party's non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics and where justice demands that he should have further time for the purpose of presenting his case.’

I have already indicated that the arbitrator was not provided with the necessary and relevant information as to who the new person was. There was also no explanation as to why he did not attend the hearing on that particular day. He elected not to attend the proceedings. He could have attend the proceedings and if not ready to proceed due to his or her recent appointment to have explained that to the arbitrator which would have included as the period when he or she was appointed in relation to the date of the hearing.

As concerning the merits of the review, it is common cause that after the applicant’s representation walked out of the proceedings, the dispute was heard in the absence of the applicants. There was accordingly only one version before the arbitration. A case has, in my view, not been made as to why the version which was put before the arbitrator should be rejected.

In light of the above, I am of the view that, the applicant’s application stands to fail. There is no reason in law and fairness why the costs should not follow the results.

Turning to the employee’s application to have the arbitration award made an order of Court, I see no reason why that prayer should not be granted.

Order

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

The applicant’s application to review and set aside the arbitration made by the first respondent under case number GPBC231/11 dated 15 April 2011 is dismissed with costs.

The arbitration award is made an order of Court.

_________________________

Molahlehi, J

Judge of the Labour Court of South Africa

Appearances

For the Applicant: Advocate M.B Matlejoane

Instructed by: The state Attorney

For the Respondent: Advocate J.L Basson

Instructed by: Grosskopf Attorneys

1(1999) 20 ILJ 196 (LC) at paras. 12 and 13.

2(1998) 19 ILJ 1425 (LAC) at para.54. See also the case of Chemical Workers Industrial Union v Darmag Industries (Pty) Ltd (1999) 20 ILJ 2037 (LC) at paras.29 to 32.

3(LCC44/98) [2003] ZALCC 10 (15 April 2003) at para 5..