Mmolawa v Safety and Security Council and Others (JR547/18) [2023] ZALCJHB 133 (26 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR547/18

In the matter between:

LERATO WINFRED MMOLAWA Applicant and SAFETY AND SECURITY SECTORAL BARGAINING COUNCIL First Respondent PM VENTER N.O. Second Respondent SOUTH AFRICAN POLICE SERVICES Third Respondent

Heard: 25 April 2023

Delivered: 26 April 2023

JUDGMENT

MAKHURA, AJ

[1] This is an application brought in terms of section 145 of the Labour Relations Act[1] (LRA), to review and set aside an arbitration award dated 31 October 2017, issued under case number PSSS 814-16/17. The applicant also applies for condonation for the late delivery of her review application. The third respondent does not oppose the application for condonation but opposes the review application.

[2] On 16 January 2017, the applicant referred an unfair labour dispute to the first respondent. The applicant summarised the facts of the dispute as:

‘The appointment of the employee was withdrawn and demoted to the lower rank (her previous rank) and all this happened after the employee fell ill, which amount to unfair labour practice.’

[3] The applicant sought an order that she be restored to the position of warrant officer. It is unclear whether she wanted to be restored to this position in Gauteng, as per the original transfer, or whether she wanted to be put back to the warrant officer position but based in Welkom.

[4] On 5 June 2017, the first respondent informed the parties that they were required to hold a pre-arbitration meeting before the matter is enrolled for hearing. The parties were advised that the matter would be enrolled upon receipt of the parties’ signed pre-arbitration minute.

[5] No pre-arbitration minute was filed. Nevertheless, the matter was enrolled for con/arb on 11 October 2017. On the day, the arbitrator recorded that there were no factual disputes between the parties and that the parties agreed that the applicant would submit her heads of argument on 18 October, respondent on 25 October and applicant would reply by 30 October 2017.

[6] The parties delivered their respective heads of argument. On 31 October 2017, the arbitrator issued the award. In his award, the arbitrator recorded, as common cause, that the applicant was employed as a Personnel Officer at salary level 5 based in Welkom and that she was transferred to Gauteng with effect from 1 July 2015 to take up a position as a Warrant Officer (salary level 7). Shortly after her transfer, she applied for temporary incapacity leave. From the record, it appears that she later requested transfer back to Welkom but as a Warrant Officer. The third respondent appears to have rejected the request, withdrawn her appointment as Warrant Officer based in Gauteng and ‘transferred’ her back to Welkom to her original position of Personnel Officer, this time at an entry level 5, which was lower than her original salary immediately prior to the transfer to Gauteng.

[7] Having considered the parties’ heads of argument, the arbitrator declared that the third respondent committed an unfair labour practice insofar as the applicant’s ‘transfer’ to her original position was on an entry level 5 and ordered the third respondent to rectify the salary notch retrospectively from 1 January 2017.

[8] The applicant was aggrieved by the award and launched these proceedings. She raised, as part of her grounds for review, the following:

‘9.10.1 The Second Respondent failed to comply with the provisions of the Act, pertaining to the conducting of fair and proper arbitration

proceedings in terms of the Act;

…

9.10.6 The Second Respondent failed to afford the applicant a fair and proper hearing in the circumstances and failed to properly conduct the arbitration proceedings in the circumstances…’

[9] On 6 November 2014, the Labour Appeal Court in Arends and others v SALGBC and others[2] reviewed and set aside a jurisdictional ruling where the parties decided that the matter should be determined based on the parties’

arguments without leading oral evidence. The LAC found that the approach adopted by the parties was neither prudent nor correct and stated that where parties intend to proceed without oral evidence, there should be a written statement of the facts agreed by the parties, akin to a pleading.[3]

[10] In South African Social Security Agency v NEHAWU obo Punzi and others,[4] the Labour Court was confronted with a review application where there was no presentation of oral evidence nor was there stated case or pleadings exchanged between the parties during arbitration proceedings. Rabkin-Naicker J said that such a process does not allow for a due and proper arbitration of the dispute.[5]

[11] This Court had another opportunity to deal with this issue in Fetakgomo Greater Tubatse Local Municipality v SALGBC and others.[6] Moshoana J, following the decision of Rabkin-Naicker J above, held that since the arbitrator failed to arbitrate the dispute which

hinges on the fairness of the conduct of the employer, the Court had no option but to remit the matter to the bargaining council for arbitration de novo.

[12] From the above decisions, it is clear that the arbitrator’s power contained in section 138 of the LRA to conduct the arbitration proceedings in the manner he considers appropriate and with minimum formalities does not include dispensing with the procedure relating to the presentation of oral evidence or pleaded or stated case, as that would offend the right of the parties to a fair hearing and deprive the arbitrator of an opportunity to deal with the substantial merits of the dispute. An award issued without arbitration proceedings (oral evidence or stated case or pleadings), is therefore a nullity.

[13] The present matter is on all fours with the above judgments. Despite the first respondent issuing a directive to the parties to conclude a pre-arbitration minute, this was not done. Such minute would have recorded the facts that are common cause and/or in dispute and the issue for determination. I must however state that arbitrators must be careful to proceed with the matter on paper (stated case) on the face of unresolved facts. In that event, arbitrators should call the parties to either provide oral evidence or supplement their stated case to address the unresolved facts, unless they are of no consequence to the issue for determination.

[14] The award does not address certain important issues such as the alleged withdrawal of the transfer of the applicant from Welkom to Gauteng, whether the transfer did indeed take place (that is, whether the applicant did in fact take up the new employment as a Warrant Officer in Gauteng), whether the SAPS could legally withdraw the transfer and the requirements for withdrawal of the transfer. Accordingly, the award falls to be set aside, and the matter be remitted to the first respondent for arbitration de novo.

[15] Regarding costs, both parties are responsible for the irregular procedure adopted during arbitration proceedings. They have authored their own misfortune. No order as to costs should be made.

[16] In the premises, I make the following order:

Order

1. The applicant’s late delivery of her review application is condoned.

2. The arbitration award issued under case number PSSS 814-16/17 dated 31 October 2017 is hereby reviewed and set aside.

3. The matter is remitted to the first respondent for arbitration de novo before a commissioner other than the second respondent.

4. There is no order as to costs.

M. Makhura

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr. G Leshaba of MM Mitti Incorporated For the Third Respondent: Adv. L Kalashe Instructed by: The State Attorney, Pretoria

[1] Act No 66 of 1995, as amended.

[2] [2015] 1 BLLR 23 (LAC)

[3] Ibid, par 15

[4] (2015) 36 ILJ 2345 (LC)

[5] Ibid, par 6

[6] Case No. JR1832/19, Moshoana J (4 August 2022)