Ntengu v Department of Correctional Service and Others (PR54/22) [2024] ZALCPE 46; (2025) 46 ILJ 1257 (LC) (20 November 2024)

IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Reportable

CASE NO: PR54/22

In the matter between:

PHINDILE NTENGU Applicant And DEPARTMENT OF CORRECTIONAL SERVICE First Respondent GENERAL PUBLIC SERVICE SECTORAL BARGAINING COUNCIL Second Respondent COMMISSIONER SAM PLAATJIES Third Respondent

Heard: 21 August 2024

Delivered: This judgment was handed down electronically by circulation to the Applicant’s and First 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 14h30 on 20 November 2024.

JUDGMENT

LALLIE J

[1] A woman attorney must never be compelled to choose between being with her ill minor child and rendering her professional services effectively. Like her male counterparts, she can be a diligent attorney and a caring parent simultaneously. Section 9 of the Constitution of the Republic of South Africa Act, 1996 proscribes discrimination and gender is part of the forms of discrimination

listed in the section 9 of the Constitution. What often sets men and women attorneys apart is our patriarchal society which places a lot of family responsibility on women’s shoulders freeing men to pursue their personal interests including professional excellence. Section 3 of the Labour Relations Act[1] (the LRA) enjoins any person applying the LRA to interpret its provisions in compliance with the Constitution.

[2] The applicant brought this application to review and set aside the third respondent’s ruling dismissing his rescission application on the grounds that the ruling is unreasonable. The nub of the applicant’s case is that the commissioner unreasonably rejected the alleged valid reason for his attorney’s absence from his arbitration which led to the dismissal of his case on 21 October 2021.

[3] The factual background to this dispute is that applicant is employed by the first respondent as a security manager. He applied for 2 positions the applicant had advertised for the St Albans Medium B Correctional and St Albans Maximum Center. The applications were unsuccessful and other candidate were appointed to the positions. Had one of his applications been successful his appointment would have constituted a promotion. He construed his non-appointment as an unfair refusal to promote him and referred an unfair labour practice dispute to the second respondent which will be referred to as the bargaining council in this judgment. The dispute was not resolved at the conciliation stage. The arbitration of the dispute was set down for a virtual hearing on 21 September 2021. The applicant submitted that on that date the first respondent’s representative failed to attend the virtual hearing by logging into the arbitration meeting. Upon noticing his absence the third respondent who will be referred to as the arbitrator in his judgment gave him a courteously call enquiring about his whereabouts. The applicant further submitted that the

arbitrator granted the first respondent a postponement because its representative had to use his personal equipment and data to

participate in the arbitration. When the arbitration was rescheduled for 20 October 2021, the applicant’s attorney did not attend its virtual hearing. On 21 October 2021 the arbitrator issued a ruling dismissing the applicant’s matter owing to his and his attorney’s failure to attend the arbitration.

[4] After receiving the dismissal ruling the applicant filed an application for the rescission of the ruling. The application was dismissed in an rescission ruling issued by the third respondent on 7 February 2022. In this application the applicant seeks an order reviewing and setting the rescission ruling aside.

[5] In reaching his decision dismissing the rescission application the arbitrator considered the applicant’s version that his attorney’s son fell ill on 18 October 2021. His condition deteriorated the following day and she took him to hospital. On 19 October 2021, the office of the applicant’s attorney addressed a letter to the respondents requesting a postponement of the arbitration hearing that was scheduled for 20 October 2021. In a medical certificate attached to the letter its author stated that the applicant’s attorney was unfit for work from 15 to 25 October 2021. The reason for her unfitness from work is recorded as “family responsibility leave. Her baby Judie is ill”. The bargaining council sent a response notifying the office of the applicant’s attorney that “all is in order” and that it would provide a new date for the hearing. The arbitrator further considered the applicant’s contention that his attorney could not apply for the postponement of the arbitration on 20 October 2021 in terms of the bargaining council rules because the medical emergency of her son made compliance impossible. She also expected the arbitrator to call her when she did not log in the virtual arbitration and accommodate her as he had done so in the past to the first respondent’s representative.

[6] The commissioner considered the first respondent’s opposition that the letter sent by the office of the applicant’s attorney did not constitute compliance with rule 23 of the bargaining council’s rules that regulate postponement of arbitrations. The first respondent contended that the applicant had failed to prove that he was not in wilful default in that neither the applicant nor his attorney was ill on 20 October 2021. The first respondent expressed the view that the applicant should have appeared in person at the arbitration as he was aware that the medical certificate his attorney had filed was not filed in compliance with the bargaining council’s rules. The first respondent’s representative denied that he had failed to attend a virtual arbitration hearing.

[7] The arbitrator relied on Electrocomp v Novak[2] where it held that an application for rescission may be refused where there was no irregularity in the proceedings and the default can be attributed to the negligence or incapacity of the applicant’s legal representatives. He also relied on Fuller v Megacor Holdings[3] where it was held that the applicant bears the onus to prove that it did not show disinterest in the conduct of its own case, maintained

close contact with its attorneys and had no reason to distrust its legal representative’s competence to look after its affairs. He dismissed the rescission application on the grounds that in his opinion the applicant had failed to show sufficient cause and

establish a bona fide defence with prospects of success.

[8] It is now trite that the test for review based on gross irregularities committed by the arbitrator in the conduct of an

arbitration is reasonableness. In Head of the Department of Education v Mofokeng[4] it was held that when a commissioner misconceives the dispute that must be determined at arbitration, his or her arbitration award

becomes unreasonable. An arbitrator misconceives a dispute when he or she conducts the wrong enquiry or when he or she conducts the correct enquiry in an incorrect manner.

[9] It is common cause that the arbitrator conducted the correct enquiry as he enquired into whether his decision dismissing the applicant’s matter could be rescinded. He also correctly identified the test he had to apply in conducting the enquiry. The test is ununciated in Colyn v Tiger Food Industries Ltd t/a Meadow Feed Mills (Cape)[5]. It requires the applicant to give reasonable explanation for the default, show that the applicant is bona fide and show a bona fide defence with prima facie prospect of success.

[10] The essence of the applicant’s case is that the arbitrator misconceived the dispute before him by conducting the correct enquiry incorrectly. I accept the applicant’s version that he proved before the arbitrator that his application for rescission was bona fide because he illustrated that it was an attempt to have the decision dismissing his matter rescinded. It was his attempt to remove the impediment which prevented the bargaining council from hearing the dispute he had referred against the first respondent. He was expressing his wish to assert his right to access to the bargaining and have his case properly ventilated and determined. There were no valid reasons before the arbitrator which proved him wrong. He therefore proved that his application for rescission was bona fide.

[11] The arbitrator rejected the reasonableness of the explanation the applicant proferred for his default. The applicant submitted that the rejection was unreasonable. The reasons the arbitrator gave for the rejection include the applicant’s failure to follow the bargaining council’s rules in seeking the postponement. The applicant correctly submitted that the arbitrator unreasonably based his decision on his failure to comply with the rules governing postponement because the reason for the postponement rendered compliance impossible. The first respondent did not challenge the applicant’s submission that the reason for his default was that her attorney had to urgently take her ill minor child to hospital and had to be with him for a few days. The arbitrator did not reject the truthfulness of the explanation for the absence of the applicant’s attorney from the arbitration that was scheduled for 20 October 2021. The facts the arbitrator accepted supported the applicant’s version that compliance with the bargaining council’s rules governing postponements was impossible. Using the non-compliance as part of his reasons for dismissing the rescission application was unreasonable.

[12] The arbitrator found that it was not in dispute that the office of the applicant’s attorney submitted correspondence and a medical certificate to all the parties before 20 October 2021. He, however, found that as the applicant and his attorney were not ill on the day of the arbitration hearing they could have applied due diligence and requested a postponement in person on 20 October 2021. In support of his finding he relied on Fuller (supra). The facts of the case before the arbitrator are distinguishable. The arbitrator did not disclose the bargaining council rule he relied on in insisting that the applicant should have applied for the postponement in person when his attorney was unable to do so on his behalf. The facts before the arbitrator do not support the conclusion that the applicant was not interested in his case or had reason not to trust his attorney’s competence to represent him. The arbitrator overlooked the unchallenged evidence that upon receiving correspondence from the office of the applicant’s attorney requesting a postponement, the bargaining council responded that “all is in order” and promised a new date for the hearing. Having received the response from the bargaining council, neither the applicant nor his attorney can reasonably be faulted for their absence from the arbitration on 20 October 2021.

[13] The arbitrator’s reliance of Electrocomp (supra) in refusing rescission is misplaced. The evidence presented before the arbitrator does not support the finding that the default can be attributed to the negligence or incapacity of the applicant’s attorney. It instead proves that when it became clear to her that owing to an emergency she could not attend the arbitration she took the necessary steps to look after the applicant’s affairs. The bargaining council itself promised her a new date for the hearing. In our patriarchal society women bear the responsibility of looking after ill children. The arbitrator unreasonably expected the applicant’s attorney to abandon a minor child she had, on doctor’s orders, to be with and make an application in person for the postponement of the arbitration on 20 October 2021 when the bargaining council had already promised her a new hearing date. The arbitrator’s finding that the explanation for the default was invalid is unreasonable.

[14] The applicant alleged that he had scored the highest points in the interviews for both positions he had applied for and that the first respondent appointed candidates who were not even eligible for appointment. He expressed the view that his non-appointment constituted an unfair labour practice. The allegations constitute prospects of success in his unfair labour practice claim in that if the applicant can prove them he will succeed in proving his claim.

[15] Had the arbitrator conducted the enquiry before him correctly, he would have considered all the evidence before him and reached the decision to grant the rescission application as the decision is consistent with the evidence before him. I have taken into account the arbitrator’s finding that the applicant erred in bringing the rescission application in terms of section 144(c) of the LRA in the absence of a common mistake. Rescission of bargaining council’s decisions is governed by section 144 of the LRA and the applicant’s application was clearly based on the legal principles governing rescission applications. It was also dismissed based on those same principles. The absence of a common mistake is therefore not fatal and the first respondent’s efforts to rely on it cannot succeed.

[16] The applicant established that the arbitrator committed a gross irregularity by conducting the rescission application incorrectly. His conduct resulted in him reaching an unreasonable decision which stands to be reviewed and set aside.

[17] The applicant sought a correction of the arbitrator’s ruling. I could find no impediment to invoking the provisions of section 145(4) of the LRA and determine the rescission application. For the reasons already given in this judgment, the applicant satisfied the requirements to have his rescission application granted. His rescission application must succeed.

[18] Each party sought a costs order in its favor. I have considered the submissions filed on behalf of both parties carefully. I have also taken into account the provisions of section 162 of the LRA and its interpretation by the constitutional Court and I could find no reason in fairness justifying a costs order against the first respondent. It will therefore not be appropriate to granted a costs order against it.

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

1. The rescission ruling issued by the third respondent under case number GPBC1169/2021 dated 7 February 2022 is reviewed and set aside and substituted with the following:

1.1 The application for rescission is granted.

2. The second respondent is ordered to schedule for arbitration before an arbitrator other than the third respondent.

3. There is no order as to costs.

MZN Lallie

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Advocate O.H Smith Instructed by Monique Cooper Attorneys Inc For the First Respondent: Advocate L. Ah Shene Instructed by State Attorney

[1] Act 66 of 1995 as amended.

[2] [2001] 10 BLLR 1118 (LC).

[3] [2003] 7 BLLR 711 (LC).

[4] [2015] 1 BLLR 50 (LAC).

[5] [2003] 2 All SA 113 (SCA).