Solidarity obo Fourie v Grundling and Others (JR2768/2021) [2024] ZALCJHB 277 (18 July 2024)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2768/2021

In the matter between:

SOLIDARITY obo R FOURIE

Applicant

and

S GRUNDLING

First Respondent

SOUTH AFRICAN POLICE SERVICES

Second Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION (CCMA)

Third Respondent

COMMISSIONER W KRUGER N.O.

Fourth Respondent

Heard: 5 July 2024

Delivered: 18 July 2024 (This judgment was handed down electronically by emailing a copy to the parties. 18 July 2024 is deemed to be the date of delivery of this judgment).

Summary: Review of jurisdictional ruling on the grounds of gross irregularity – principles applied in reviews considered – Applicant not entitled to multiple compensation arising out of the same cause of action – review application dismissed.

JUDGMENT

PHAKEDI, AJ

Introduction

[1] The applicant seeks to review and set aside the jurisdictional ruling dated 26 November 2021. In terms of S 158(1)(g) of the Labour Relations Act (LRA)[1], the Labour Court may subject to section 145, review the performance or purported performance of any function provided for in this Act on any grounds that are permissible in law. The application is not opposed by any of the Respondents.

[2] The ruling is dated the 26th of November 2021 and the Applicant does not take an issue with the date of receipt. The review application was served on the Respondents

on the 13th of January 2022 and filed with the Registrar of the Labour Court on the 14th of January 2022. The Respondent in its opposing papers does not take any issue with the late filing of the review application. In terms of section 158(1)(g), I am therefore satisfied that this application was brought within a reasonable time.

Background facts

[3] The Applicant is employed by the Second Respondent in the position of Senior Personnel Practitioner.

[4] The Second Respondent on or about the 8th of July 2019 advertised several promotion vacancies under the heading: Post Promotions: Phase 1: 2019/20 Financial Year: South African Police Service Division: Supply Chain Management. The Applicant applied for the following two Lieutenant Colonel positions:

2.1 Post 2708: Personnel Management SCM on Band D (Director: Personnel Management Assistant (P)); and

2.2 Post 2716: Admin Support and CCTV on Band D (Director: Personnel Management Assistant (P)).

[5] The Applicant was not shortlisted for both positions and on or about the 4th of February 2020 he lodged a grievance for not being promoted in respect of both positions 2708 and 2716. The grievance could not be resolved internally and on or about the 20th of March 2020 the Applicant referred two separate unfair labour practice disputes to the CCMA. The dispute for position 2716 was

registered under case number GATW5135-20 and the dispute for position 2708 was registered under case number GATW5119-20.

[6] The dispute under case number GATW5135-20 was arbitrated by Commissioner Koekemoer who found that the Second Respondent committed an act of unfair labour practice by failing to promote the Applicant and awarded him compensation in the amount of R254 863.00.

[7] The dispute under case number GATW5119-20 was arbitrated by the Fourth Respondent and it is the subject of these review proceedings.

[8] The matter was set down for arbitration on the 2nd of September 2021 and the Second Respondent raised a point in limine challenging the jurisdiction of the CCMA to arbitrate the second dispute because the Applicant had already been compensated under case number GATW 5135-20. In response, the Applicant contended that the merits and evidence under position 2716 were never led before Commissioner Koekemoer and as such the two claims were not based on the same cause of action.

[9] Having considered submissions from both parties, the Fourth Respondent then made a ruling to the effect that the CCMA did not have jurisdiction to arbitrate the dispute based on the decision of the Labour Appeal Court in South African Police Service v Solidarity obo Slingers and Another[2] because there is one cause of action and the Applicant had already been compensated for unfair labour practice as such he is not

entitled to further compensation.

Applicant’s grounds for review

[10] The Applicant has raised a number of grounds and is challenging the jurisdictional ruling on the basis of gross irregularity in that the Fourth Respondent made a mistake of law by not directing his mind to the issues before him and he misconceived the nature of the enquiry and his duties in connection therewith. He further failed to take into account the fact that no evidence was led on post 2708 before Commissioner Koekemoer and he failed to consider the primary issues before him.

[11] The Applicant contends further that the Fourth Respondent committed a reviewable defect in that his award is not based on evidence presented during arbitration proceedings; he failed to arrive at a decision based on evidence properly placed before him; he failed to apply his mind to the issues; and he failed to consider material facts and ignored relevant evidence. In particular, the Applicant contends that the Fourth Respondent failed to consider the evidence that the interviewing panel for position 2708 was not the same as the panel for position 2716.

[12] The Applicant submitted further that the Fourth Respondent also failed to consider the fact that the First Respondent in the dispute before him was not the same person as the First Respondent in position 2716 although they shared the same surname.

[13] Finally, the Applicant contends that the Fourth Respondent was wrong and/or unreasonable in finding that the principle of Res Judicata is to prevent the repetition of lawsuits where the parties, cause of action and relief is the same. In the current dispute, the parties and the cause of action were different as the panel members who made the unfair decision were not under scrutiny.

[14] The Respondent in its opposing affidavit contended that a reasonable decision-maker would have assigned the same meaning to the

Applicant’s cause of action as was assigned by the Labour Appeal Court in South African Police Services v Solidarity obo Slingers and Another[3] judgment and the review application must be dismissed on the basis that the Fourth Respondent as a reasonable decision-maker found

himself bound by the decision of the Labour Appeal Court.

Evaluation

[15] The Labour Appeal Court in Cape Peninsula University of Technology v Kabengele and Others[4] (Cape Peninsula University of Technology) dealt with an issue where the employee in his papers before the Court sought to have the arbitration award set aside on the reasonableness

test instead of the correctness test. The Labour Court adopted the correctness test and set aside the award on the basis that it was incorrect. On appeal, Cape Peninsula University of Technology argued that the Labour Court ought not to have decided the application on grounds that had not been pleaded.

[16] The Labour Appeal Court after having regard to two Constitutional Judgments which confirm that the resolution of labour disputes is simpler and more accessible as compared to civil disputes, warned that “a court is bound to determine the pleaded case before it and a review court is not permitted, as a general rule, to stray into the

determination of issues which have not been pleaded by the parties. It is only where the parties have proceeded on an incorrect

perception of the law that a court is obliged mero motu to raise as much as it may where it is necessary to raise an issue to dispose of the matter and it is in the interests of justice to do so.[5]

[17] I am therefore bound by the case as pleaded before me in that the Applicant is challenging the Ruling on the basis that the Fourth

Respondent committed a gross irregularity in terms of section 145(2)(a)(ii)[6] of the LRA by failing to apply his mind to the issues before him, as such he misconceived the nature of the enquiry and his duties in relation to the dispute.

[18] The debate on the right to review an arbitration award on process-related grounds as opposed to result-related grounds was finally settled by the Labour Appeal Court in Gold Fields Mining South Africa (Pty)Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and Others[7] as follows:

‘[13] The right to review an arbitration award on process-related grounds has been a topic of recent discussion and debate. It has been regarded as a different species of review to that postulated in Sidumo[8]. Sidumo requires the review court to ask the question: is the decision made by the arbitrator one that a reasonable decision-maker could not reach on the available material? This has been interpreted by some to suggest that the Sidumo test deals only with the result or outcome of the arbitration proceedings and that it remains open to review an award on process-related grounds.

[14] Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration awards made under the Labour Relations Act (LRA) continue to be determined in terms of s145 of the LRA but that the constitutional standard of reasonableness is “suffused” in the application of s145 of the LRA. This implies that an application for review sought on the grounds of misconduct[9], gross irregularity in the conduct of the arbitration proceedings[10], and/or excess of powers[11] will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material.

[15] … The gross irregularity is not a self-standing ground insulated from or standing independent of the Sidumo test. That being the case, it serves no purpose for the reviewing court to consider and analyse every issue raised at the arbitration and regard failure by the arbitrator to consider all or some of the issues albeit material as rendering the award liable to be set aside on the grounds of process-related review.’

[19] The Applicant is aggrieved that the Commissioner Res Judicata is to prevent the repetition of lawsuits where the parties, cause of action and relief are the same. It is trite that the requirements of res judicata are the following: (a) there must be a previous judgment by a competent tribunal/court; (b) between the same parties; (c) based on the same cause of action, and (d) with respect to the same subject matter or dispute.

[20] It is the Applicant’s submission that in the current dispute the parties and the cause of action was different. I do not agree with the Applicant in this respect due to the fact that there was only one set of advertisements and the Applicant applied for two positions. Had he been shortlisted and interviewed he could not have accepted appointment for two positions. This issue was dealt with by the Labour Appeal Court in South African Police Services v Solidarity obo Slingers and Another[12] where the Court accepted that the Respondent’s cause of action was the failure by SAPS to consider the Respondent for one of the advertised positions and he could not claim multiple reliefs for the same cause of action.

[21] The LAC referred to the matter of Custom Credit Corporation (Pty) Ltd v Shembe[13] where Van Winsen AJA (as he then was) held that:

‘The law requires a party with a single cause of action to claim in one and the same action whatever remedies the law accords him upon such cause. This is the ratio underlying the rule that, if a cause of action has previously been finally litigated between the parties, then a subsequent attempt by the one to proceed against the other on the same cause of action for the same relief can be met by an exceptio rei judicatae vel litis finitae. The reason for this rule is given by Voet, 44.2.1 (Gane’s translations, Vol 6, p553) as being:

“to prevent inextricable difficulties arising from discordant or perhaps mutually contradictory decisions due to the same suit being aired more than once in difference judicial proceedings”.’

[22] The Applicant is further aggrieved by the Commissioner’s conclusion that the CCMA does not have jurisdiction to arbitrate the dispute on the basis of Slingers judgment which found that the Applicant is not entitled to further compensation since he had already been compensated for unfair labour practice under case number GATW 5135-20. The review cannot succeed on this ground as well based on the fact that Commissioners are creatures of statute, and on stare decisis et non quieta movere[14] principle.

[23] In coming to his conclusions, the Arbitrator aligned himself with this passage in Slingers where the LAC stated:

‘In short, the first respondent was compensated for the unfair labour practice which was committed by the appellant in respect of the first respondent’s application all the range of advertised posts. As the first respondent could only have been promoted to one of the positions so advertised, there is one cause of action which is based upon the failure to appoint the first respondent to any of the post for which he applied. On the Shembe principle, the first respondent is not entitled to a multiple award of compensation simply because he applied for more than one

position.’[15]

[24] In terms of clause 6 of the CCMA guidelines published in line with section 115(2)(g) of the Labour Relations Act, “the CCMA and all its Commissioners are obliged to interpret and apply the Labour Relations Act and other legislation in accordance with judicial decisions of courts that are binding on it. These include the decisions of the Constitutional Court, the Supreme Court of Appeal, Labour Appeal Court, High Court and Labour Court”. I am therefore satisfied that the Fourth Respondent executed his duties in line with section 138 of the LRA and in compliance with the CCMA guidelines.

[25] Section 138(1) of the LRA requires commissioners to arbitrate disputes in a manner they consider appropriate in order to determine them fairly and quickly with the minimum of legal formalities. This Court is also bound by the principle of stare decisis et non quieta movere and finds that the Applicant is not entitled to any further compensation in respect of his unfair labour practice dispute arising from the failure of the Second Respondent to shortlist him.

[26] The applicant has failed to make a proper case for the jurisdictional ruling to be reviewed and set aside.

Conclusion

[27] Both parties have indicated that they are seeking costs if I find in their favour. The Second Respondent submitted that the Applicant is represented by the same Union which was involved in the matter of Slingers and the Union ought not to have wasted the Court’s resources bringing this matter to Court. The Second Respondent was forced to use tax payers’ monies to defend frivolous litigation.

[28] The Applicant submitted that the facts in Slingers are different from this present matter as in the matter of Slingers, the Applicant was applying for the same position in different Provinces but the Applicant in this matter had applied for two different positions.

[29] Section 151(1) of the LRA provides that the Labour Court is established as a Court of law and equity. I am mindful of the fact that there is an ongoing employment relationship between the Applicant and the Second Respondent. To award costs against litigants who are exercising their constitutionally entrenched rights to fair labour practices will defeat the primary purpose of the LRA.

[30] In the result, the following order is made:

Order

1. The review application is dismissed.

2. There is no order as to costs.

GC Phakedi

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Z Hanekom

Instructed by: Solidarity

For the Respondent: Adv K Mvubu

Instructed by: State Attorneys, Pretoria

[1] Act 66 of 1995, as amended.

[2] South African Police Services v Solidarity obo Slingers and Another [2021] ZALAC 35; (2021) 42 ILJ 1934 (LAC).

[3] Ibid at para 20.

[4] [2007] ZALAC 11; [2024] 6 BLLR 553 (LAC); (2021) 42 ILJ 2384 (LAC).

[5] Ibid at para 12.

[6] A defect referred to in subsection, means that the commissioner committed a gross irregularity in the conduct of the arbitration

proceedings.

[7] [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC).

[8] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC).

[9] S145(2)(a)(i) of the LRA.

[10] S145(2)(a)(ii) of the LRA.

[11] S145(2)(a)(iii) of the LRA.

[12] [2021] ZALAC 35; (2021) 42 ILJ 1934 (LAC) at para 18.

[13] 1972 (3) SA 462 (A); [1972] 3 All SA 489 (A) at 472A-E.

[14] The literal meaning of this doctrine expressed in Latin is to stand by things decided and not disturb settled points. In modern days, the doctrine is named binding precedent.

[15] South African Police Services v Solidarity obo Slingers and Another at para 20.