Minister of Correctional Services v General Public Service Sectoral Bargaining Council and Others (JR 2666/19) [2023] ZALCJHB 312 (10 November 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2666/19

In the matter between:

MINISTER OF CORRECTIONAL SERVICES Applicant And GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL (“GPSSBC”) First Respondent T.M MAHASHA Second Respondent M.E MZIMA Third Respondent

Heard: 10 November 2023

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and Third Respondent’s 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 12h30 on 10 November 2023.

JUDGMENT

LALLIE, J

[1] The applicant launched this application seeking an order reviewing and setting aside both the arbitration award the second respondent issued in favour of the third respondent as well as the ruling refusing the rescission of the award. The application is opposed by the Public Servants Association on behalf of the third respondent. The review application was filed 9 days late and the applicant made an application to have the delay condoned. The application is unopposed. The applicant submitted that the delay was not substantial and it did not prejudice the respondents. He further provided a valid explanation for the delay and established reasonable prospects of success in the review application. In the absence of opposing averments, I accepted the applicant’s version which supports the conclusion that he has shown good cause thus providing grounds for condonation of the delay. The application for condonation is therefore granted.

[2] The third respondent was employed by the Department of Correctional Services (the department) as a Correctional Services Officer. She was dismissed for intimidating and assaulting Ms Letsoalo (Letsoalo), the Director of Corporate Service. Her trade union, the Public Servants Association (PSA), acting on her behalf referred an unfair dismissal dispute at the General Public Service Sectoral Bargaining Council (GPSSBC). After the certificate of the non-resolution of the dispute through conciliation had been issued, the PSA referred it to arbitration. The arbitration hearing was scheduled for 27 June 2019. When the arbitration commenced only the third respondent and her PSA representative were present. The personnel of the GPSSBC phoned the offices of the department and were promised that a representative would join the arbitration at 10h00. When the promise was not fulfilled by 10h45 the second respondent (the arbitrator) proceeded with the arbitration in the absence of the department’s representative. In his award he stated that he exercised his discretion in terms of section 138 (5) (b) of the Labour Relations Act 66 of 1995 (the LRA) in proceeding with the arbitration because he had satisfied himself that the department had been properly notified of the arbitration hearing. Having heard the third respondent’s case, the arbitrator issued an award in which he found the third respondent’s dismissal substantively unfair and ordered the department to reinstate her.

[3] After receiving the arbitration award the department filed an application for its rescission. The grounds for rescission were that the department was not notified of the arbitration hearing as in the notification it received the employee was referred to as PSA obo Msiza. A further reason was that the department had prospects of success in the arbitration owing to the gravity of the misconduct the third respondent was dismissed for. The third respondent’s basis for opposing the rescission application was that she would suffer prejudice. She submitted that the department had been properly notified of the arbitration but its representative, Mr Mkhabela arrived late, spent few minutes at the arbitration and walked out. The arbitrator dismissed the rescission application on the grounds that the department should have made enquiries from the GPSSBC upon receiving the arbitration notification with the misspelt employee’s surname. He rejected the department’s version that Mr Mkhabela had arrived at the arbitration. He further found that the department had not established prospects of success and dismissed the rescission application.

[4] The applicant relied on a number of grounds for review. The submission that the arbitrator committed a gross irregularity which rendered his decisions unreasonable in overlooking the GPSSBC’s failure to properly notify the department of the arbitration covers both decisions under review. If proved, it constitutes a valid basis for the finding that the decisions under review are unreasonable. The third respondent’s main grounds for opposition were that the department was properly notified of the arbitration and that the applicant failed to prove the unreasonableness of the decisions under review.

[5] It was submitted on behalf of the applicant that in proceeding with the arbitration in the absence of the department the arbitrator breached the audi alteram partem rule of natural justice. The decision he reached after denying the department the right to be heard rendered the award unreasonable. It was argued on behalf of the third respondent that upon receipt of the arbitration notification with the incorrect name of the employee the respondent had a duty to make enquiries from the GPSSBC with a view of clearing the confusion.

[6] Section 138(1) of the LRA enjoins arbitrators to conduct arbitrations fairly. The arbitrator was alive to the department’s right to be heard in that he justified his conduct of proceeding with the arbitration in the absence of the department by stating that he had satisfied himself that the department had been properly notified of the arbitration hearing. The observation implies that the arbitrator concluded that the department had waived its right to be heard. I accept the applicant’s version that the arbitrator had no basis for concluding that the department had been properly notified of the arbitration because the notice he relied on reflects the applicant party as ‘PSA obo ME Msiza’. The third respondent’s surname is ‘Mzima’. The GPSSBC erred in misspelling her surname. The notification that was served on the department referred to a different employee and not to the third respondent.

[7] The arbitrator further erred in concluding that the phone call the GPSSBC made on the morning of the arbitration notifying the department to attend in a few minutes constituted proper notification. In the absence of proof that the GPSSBC had given the applicant proper notice to attend the arbitration, the arbitrator had no basis to be satisfied that the applicant had been properly notified of the hearing. His decision is not based on the evidence that was before him. A decision that is disconnected from the evidence renders an arbitrator’s decision unreasonable[1]. The arbitrator’s decision is also in conflict with the provisions of section 138(5)(b) of the LRA he purported to base it on. Section 138(5)(b)(i) enable an arbitrator to proceed with the arbitration in the absence of the referring party when that party has failed to appear at the arbitration proceedings. Failure to attend the arbitration cannot be imputed on a referring party who has not been properly notified of the arbitration. The jurisdictional fact for the operation of section 138(5)(b)(i) of the LRA is failure by the referring party to appear at the arbitration. The referring party must therefore be at fault as it may not lose its right to be heard through no fault on its part. The arbitrator misconstrued the provisions of section 138(5)(b)(i) of the LRA and his error resulted in him reaching the unreasonable decision to proceed with the arbitration in the absence of the applicant. The award he reached having erroneously proceeded with the arbitration is equally unreasonable and therefore is reviewed and set aside.

[8] The applicant also sought an order reviewing and setting aside the arbitrator’s ruling refusing to rescind the arbitration award he issued after holding the arbitration in the department’s absence. Section 144(a) of the LRA enables commissioner to rescind an arbitration award erroneously sought or erroneously made in the absence of any party affected by the award. Amongst the grounds the department relied on in its rescission application, was the arbitrator’s conduct of proceeding with the arbitration in its absence when it had not been properly notified of the arbitration. Instead of accepting the GPSSBC’s mistake of not notifying the department of the arbitration, the arbitrator blamed the department for not making enquiries from the GPSSBC after receiving the arbitration notice with the incorrect employee party. The arbitrator did not disclose the basis of the department’s obligation to make the enquiries. Not surprisingly there is none. The arbitrator failed to take into account that the GPSSBC had failed in his duty implied in section 138 (5) of the LRA to notify the department properly of the arbitration date. He erroneously visited the failure on the department. The effect of the GPSSBC’s failure to properly notify the department of the arbitration date is that the arbitration award issued on 8 July 2019 was erroneously made in the absence of the department as envisaged in section 144 (a) of the LRA. As the department had established valid grounds for the rescission of the award, the arbitrator erred in disregarding those grounds and electing to rely on irrelevant allegations which resulted in the refusal of the rescission application. I accept the applicant’s submissions that the rescission ruling must be set aside.

[10] The department and the PSA have a continuing relationship and granting a cost order in the circumstances will not be appropriate.

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

1. The application for the late filing of the review application is granted;

2. The rescission ruling issued by the second respondent on 27 August 2019 is reviewed and set aside;

3. The arbitration award issued by the second respondent under case number GPBC 416/2019 and dated 8 July 2019 is reviewed and set aside;

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

5. There is no order as to costs.

Z. Lallie

Judge of the Labour Court of South Africa

Appearances

For the Applicant:

Advocate Ruth Mudau

Instructed by:

The State Attorney

For the Respondent:

Mr. Kagiso Mahapa from the Public Servants Association

[1] Herholdt v Nedbank [2013] 11 BLLR 1074 (SCA)