NEHAWU obo Motseo v Department of Health Limpopo and Others (JR1817/18) [2024] ZALCJHB 331 (30 August 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 1817/18

In the matter between:

NEHAWU obo JC MOTSEO AND OTHERS Applicant and DEPARTMENT OF HEALTH LIMPOPO First Respondent PUBLIC HEALTH AND SOCIAL DEVELOPMENT SECTORAL BARGAINING COUNCIL Second Respondent RONNIE BRACKS N.O Third Respondent HASSAN DOCRAT N.O Fourth Respondent

Heard: 04 July 2023

Delivered: 30 August 2024 and served on the parties by email

JUDGMENT

NTSHEBE, AJ

Introduction

[1] This is a review application in terms of section 145 read with section 158 (1)(g) of the Labour Relations Act[1] (LRA). In this review application, the applicant seeks the following orders:

1.1 An order reviewing and setting aside the rescission ruling of the Fourth Respondent, dated 8 August 2018, under case number PSHS713 - 17/11;

1.2 Reviewing and setting aside the arbitration award of the Third Respondent under case number PSHS 713 - 10/11.

[2] It seeks an order further substituting the rescission ruling and the arbitration award by the Third and Fourth Respondents with an order remitting the matter back to the Second Respondent for a hearing before another Commissioner other than the Third and Fourth Respondents.

Background

[3] The dispute between the parties has a long-protracted history. The Applicant’s members are employed by the First Respondent as Emergency Care Practitioners: Intermediate and Senior Advanced Practitioners.

[4] The dispute relates to an alleged unfair labour practice allegedly committed by the First Respondent when the Applicant’s members were allegedly excluded from a job evaluation process that was conducted in 2010. The job evaluation process would have resulted in some benefits which were going to be backdated to 2007.

[5] Pleadings and the record in the current application reveal that in 2012, the First Respondent instituted a review application, against an arbitration award issued under the auspices of the Second Respondent against the Applicants in this matter, under case number JR 2624/12.

[6] Le Grange J issued a directive to the parties which reads as follows:

‘(a) The parties are urged to consider whether the matter ought to be dealt with by means of a consent order in light of the LAC decision in Arends 2015 (1) BLLR 23 (LAC).’

[7] The directive by Lagrange J was as a result of the decision in Arends and Others v South African Local Government Bargaining Council and Others[2] (Arends). In the Arends case, the Labour Appeal Court (LAC) held that:

‘When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. … Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence. An oral stated case predicated upon poorly ventilated and potentially unshared assumptions as to the facts defeats the purpose of the requirements of a stated case and, as this case shows, will lead to problematic results.’

[8] As a result of the Directive by Lagrange J, a subsequent Court order on 31 May 2016 by van Niekerk J by agreement between the parties resulted in the matter being remitted back to the Second Respondent for arbitration de novo.

[9] The matter was set down at the bargaining council and culminated in an arbitration award dated 23 March 2018 issued by the Third Respondent, Commissioner Bracks, which the Applicant in this review application is seeking to be reviewed and set aside. It is important to note that both parties were represented during the arbitration proceedings before the Third Respondent.

[10] Upon receipt of the arbitration award, the Applicant elected to apply for rescission of the arbitration award, instead of reviewing the award. The rescission ruling was issued by the Fourth Respondent, Commissioner Docrat on 8 August 2018, wherein she dismissed the rescission application.

[11] As a result, on 13 September 2018, the Applicant instituted this review application to set aside both the arbitration award and the ruling dismissing the rescission application.

Review application: arbitration award

[12] Before dealing with the grounds of review in respect of the review application relating to the arbitration award, it is important to deal with the point raised by the First Respondent in its answering affidavit.

[13] In the answering affidavit, the First Respondent takes issue with the fact that the review application in respect of the arbitration award is outside the time limits set out in section 145 of the LRA. Section 145 of the LRA states that a party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award within six weeks of the date that the award was served on the Applicant.

[14] The First Respondent’s point is based on the fact that the arbitration award was received by the Applicant on 23 March 2018 and the review application in respect of the arbitration award should have been served and filed on 4 May 2018. However, the review application was only filed on 11 September 2018. Therefore, the First Respondent contended that the review application falls to be dismissed.

[15] In the Applicant’s replying affidavit, the issue raised by the First Respondent which goes to the jurisdiction of this Court is not responded to at all by either denying the necessity for condonation and substantiating the denial, alternatively by serving and filing the condonation application.

[16] At the commencement of the argument, the Court enquired from the Applicant’s counsel as to whether, in the absence of a condonation application in respect of a review application of the arbitration award, whether the Court can entertain that review application. However, and not surprisingly, no meaningful response was received.

[17] It is trite that if a review application is filed outside the statutory period, this Court does not have jurisdiction to entertain the application, until such time as condonation is sought and granted.

[18] In South African Transport and Allied Workers Union (SATAWU) and Another v Tokiso Dispute Settlement and Others[3] the Labour Appeal Court held that when an applicant files its review application outside the statutory period, even by one day, the Labour Court cannot assist that party without first addressing the issue of condonation.

[19] This Court in SAMWU obo Moloisane and Others v City of Tshwane Local Municipality and Others[4] stated that the question whether the review application had been filed within the prescribed six weeks period, is a fact or element

which goes to establishing the jurisdiction of this Court to adjudicate and hear the application. The Court held that absent an

application for condonation, this Court has no jurisdiction and cannot come to the Applicant’s assistance.

[20] As there is no condonation application in the matter, this Court does not have jurisdiction to determine the review application in respect of the arbitration award. The review application in respect of the award falls to be struck off the roll.

Rescission application

[21] During the arbitration proceedings before the Third Respondent that resulted in the award which the Applicant sought to rescind, all the parties were represented.

[22] On the first day of the sitting on 6 October 2017, the employee representative informed the Third Respondent of this Court’s order as per van Niekerk J that the matter was remitted back to the First Respondent as it was initially decided on papers without evidence being led. As parties could not proceed, arbitration proceedings were thereafter postponed to 7 and 8 December 2017 with an indication that both parties were going to call witnesses to testify before the Third Respondent.

[23] However, on 7 December 2017, the parties informed the Third Respondent of their agreement that they would submit written heads of argument as the issues are common cause. As a result, there was an agreement on the dates for submission of the heads of argument.

[24] On 23 March 2018, the Third Respondent issued an award in which he found that the Applicants failed to discharge the onus of proving that the First Respondent committed an unfair labour practice when it excluded the Applicants in the implementation of the job evaluation results.

[25] In its application for rescission before the Fourth Respondent, the Applicant stated amongst other grounds for rescission, that the Third Respondent ignored this Court’s order that there must be a hearing de novo. The Third Respondent never allowed an opportunity for a hearing to take place as he decided the matter on paper through heads of argument. This was despite the fact that he was made aware of this Court’s order. As a result, the Applicant believed that it had shown good cause for the rescission to be granted. The rescission application was not opposed.

[26] In her ruling, the Fourth Respondent states as follows:

‘Adv Bracks conducted an opposed Arbitration, which resulted in an arbitration Award being issued. The Applicant cannot simply apply for this process and or the award to be rescinded. I respectfully refer NEHAWU to S 145 of the LRA and request that they act within the mandate of the LRA.’

[27] As a result, the Fourth Respondent dismissed the rescission and ruled that the award could not be rescinded as the Second Respondent did not have jurisdiction to do the same.

[28] Section 144 of the LRA dealing with rescissions reads as follows:

‘144. Variation and rescission of arbitration awards and rulings: Any commissioner who has issued an arbitration award or ruling, or any other commissioner appointed by the director for that purpose, may on that commissioner's own accord or, on the application of any affected party, vary or rescind an arbitration award or ruling –

(a) erroneously sought or erroneously made in the absence of any party affected by that award;

(b) in which there is an ambiguity, or an obvious error or omission, but only to the extent of that ambiguity, error or omission;

(c) granted as a result of a mistake common to the parties to the proceedings; or

(d) made in the absence of any party, on good cause shown.’

[29] The error relied on by the Applicant does not find application on section 144(a) of the LRA. This is because the award was not made in absence of any party affected by it. As stated in the preceding paragraphs, both the Applicant and the First Respondent were present in the arbitration on the days that it proceeded. In Builders Trade Depot v Commission for Conciliation, Mediation and Arbitration and Others[5], Steenkamp J, dealing with a review application of a ruling refusing rescission by an employee who was present in the arbitration

proceedings, stated:

‘It appears to me from a reading of s 144(a) that an employee who was present during arbitration proceedings, and who is affected by the award, cannot apply for the rescission of the award in terms of that subsection.’

[30] Steenkamp J went on to consider other grounds in terms of subsection (b) and found that both were not applicable as neither party had alleged that there was an ambiguity or an obvious error or omission in the award. The Applicant’s basis of an error in this matter in not an error in the award but an irregularity in the conduct of the proceedings. Such irregularity cannot amount to an error in the award.

[31] In respect of subsection (c), it is my view that there was no mistake common to the parties. The transcript reveals that on 6 October 2017, the parties informed the Third Respondent arbitrator of the Court order that the matter be heard de novo as in the previous arbitration, the matter was only decided on papers without evidence being led. They further informed the Third Respondent that they were going to call witnesses to testify. As a result, the matter was postponed to 7 and 8 December 2017.

[32] However, the very same parties on 7 December 2017 informed the Third Respondent that they were going to submit only heads of argument

without leading any witnesses. That does not amount to a mistake common to the parties. The parties’ conduct amounted to what Tlhotlhalemaje J in Department of Justice and Constitutional Development and Others v General Public Service Sectoral Bargaining Council and Others[6] described as cutting corners.

[33] With regard to subsection (d), the award could not be rescinded on that subsection as the parties were present and both participated in the arbitration proceedings.

[34] In the light of the above, the review application in respect of the rescission ruling is dismissed.

Costs

[35] During the hearing of the matter, the First Respondent argued that the Applicant should be ordered to pay costs of the application. I have however considered that both parties are the authors of their own misfortunes. Had they done what they stated to the Third Respondent that they would do on 7 December 2017, this review would not have been necessary. Therefore, there is no order as to costs.

Order

1. The review application in respect of the arbitration award is struck off the roll;

2. The review application in respect of the rescission application is dismissed; and

3. No order as to costs.

T. G. Ntshebe

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. L. Quilliam Instructed by: Moabelo Attorneys For the Respondent: Adv M Kgatla Instructed by: State Attorney

[1] Act 66 of 1995, as amended.

[2] (2015) 36 ILJ 1200 (LAC) at para 15.

[3] (2015) 36 ILJ 1841 (LAC).

[4] (JR850/19) [2021] ZALCJHB 271 (9 September 2021).

[5] [2012] 4 BLLR 343 (LC) at para 11.

[6] (2018) 39 ILJ 2001 (LC) at para 39.