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JR 269/2020
Mashigo v Safety and Security Sectoral Bargaining Council and Others (JR 269/2020) [2022] ZALCJHB 141 (1 June 2022)
[21] Reference was also made to Arends and others v SA Local Government Bargaining Council and others[(2015) 36 ILJ 1200 (LAC) at para 15.] (Arends), where the 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. Courts of law and arbitration tribunals dealing with disputes of right exist for the settlement of concrete controversies and not to pronounce upon abstract questions or to give advice upon differing contentions about the meaning of an agreement. 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.
[24] In SASSA, the Court remarked that it failed to comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence. I share the same view.
[29] The Applicants argument that absent a witness testifying in the flesh before the arbitrator, no evidence was adduced and only documents were placed before the arbitrator, wherefore a stated case was required, is unsustainable.
JR1986/20
Ndaa Food Manufacturing CC t/a Ndaa Bakery v Commission for Conciliation, Mediation and Arbitration and Others (JR1986/20) [2022] ZALCJHB 54 (15 March 2022)
[20] Section 138 of the LRA stipulates that a commissioner can use his discretion as to the manner in which he would like to conduct the hearing. Therefore, it is said that arbitration cases are considered as hearings de novo. The commissioner is tasked with determining the fairness or otherwise of the employers decision and is not meant to reconvene a disciplinary hearing. This begs the question of whether the record of a disciplinary proceeding is necessary for the fair determination of the dispute at the CCMA, in light of the fact that the arbitration is hearing de novo?
[21] In Sidumo, the Constitutional Court explained how the discretion contained in section 138 of the LRA should be understood, as follows:Equally true is that when an employer determines what is an appropriate sanction in a particular case, the employer may have to choose among possible sanctions ranging from a warning to dismissal. It does not follow that all transgressions of a particular rule must attract the same sanction. The employer must apply his or her mind to the facts and determine the appropriate response. It is in this sense that the employer may be said to have discretion.But recognising that the employer has such discretion does not mean that in determining whether the sanction imposed by the employer is fair, the commissioner must defer to the employer. Nor does it mean that the commissioner must start with bias in favour of the employer. What this means is that the commissioner does not start with a blank page and determine afresh what the appropriate sanction is. The commissioners starting point is the employers decision to dismiss. The commissioners task is not to ask what the appropriate sanction is but whether the employers decision to dismiss is fair.[2008 (3) BLLR 197 (LAC) at paras 98 and100.]
[22] The Commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceedings could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal.[Schedule 8 to the LRA. See Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits 2015 (5) BLLR 484 (LAC).]
[23] In casu Nephawe plead guilty to all charges at the disciplinary hearing and the Commissioner correctly takes note of this in the arbitration award.[15] The record of the disciplinary proceedings was in front of the Commissioner.[16] The record indicates that Nephawe pleaded guilty to all the charges and that the charges had been explained to him.[17]
[32] As to the general principles applicable to deciding whether dismissal is an appropriate sanction, it must first be said that it is not the function of the second respondent as an arbitrator to decide whether he would have dismissed Nephawe or not. In deciding whether dismissal as a sanction is fair, an arbitrator does not decide the issue on the basis of a clean slate, so to speak, as if the arbitrator was the employer. The premise upon which the issue of dismissal as a fair sanction must be decided is that of deciding whether what the employer did in dismissing the employee was fair. In short, whilst the arbitrator must not defer to the employer, the arbitrator must not act as if he or she was the employer.[Bidair Services (Pty) Ltd v Sekhabisa NO and Others (JR174317) [2019] ZALCJHB 328 (26 November 2019) at para 49.]
[34] In deciding whether the employer acted fairly in deciding to dismiss an employee, a variety of factors must be considered, as a whole.[29] These are, in sum: (1) the importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (3) the harm caused by the employee's conduct; (4) whether additional training and instruction may result in the employee not repeating the misconduct; (5) the service record of the employee; (6) the breakdown of the trust/employment relationship between the employer and employee; (7) the existence or not of dishonesty; (8) the possibility of progressive discipline; (9) the existence or not of remorse; (10) the job function of the employee; and (11) the employers disciplinary code and procedure.[30] Not all the factors are always relevant to a particular case, so only those that are relevant must be identified, and considered.[31]
[35] In general terms, what requires consideration by an arbitrator was articulated in Vodacom (Pty) Ltd v Byrne NO and others[32] as follows: the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction
[10] A pre-arbitration agreement binds the parties and the commissioner in so far as the dispute is concerned. In Telkom SA SOC Limited v Van Staden and Others[[2021] 42 ILJ 869 (LAC).], the Labour Appeal Court (LAC) concluded that:[16] A pre-trial agreement is a consensual document which narrows down the issues in dispute between the parties so as to limit the scope of litigation. Such an agreement binds the parties and the court in the same way as pleadings[24] Given the status of a pre-trial agreement as a contract entered into between the parties, I am satisfied that the approach taken in CEPPWAWU is correct
JR 3021/19
Muller v Public Investment Corporation (soc) Limited (PIC) (JR 3021/19) [2022] ZALCJHB 82 (18 February 2022)
[13] A plea of non-joinder is a special plea, which is one of the classes of pleas known as dilatory pleas. It is a plea which does not go to the merits of the action but if successful merely delays it. In fact, if the plea is successful the usual procedure is that the Court stays the action until the necessary party has been joined.[See Becks Theory and Principles of Pleadings in Civil Actions, H Daniels 6ed 2002.]
[12] Assuming that Lebea was authorised to determine the issue of non-joinder, the veritable question is whether non-joinder was pleaded or raised and whether its success obliterates the case of Muller. At the CCMA, there are no pleadings. Owing to that, there is no provision for a respondent party to raise a special plea, which non-joinder is. However, Rule 20 (3) (d) and (l) of the CCMA Rules provides that in the pre-arbitration conference, the parties must attempt to reach consensus on, (a) the issues that the Commission is required to decide; and (b) the resolution of any preliminary points that are intended to be taken. If the PIC wished to raise a plea of non-joinder, it would have done so at the pre-arbitration conference and recorded it as a preliminary point to be taken. Defining a plea of non-joinder, the Virginia Supreme Court in Bush v Campbell[26 Gratt.403, 435 (1875), Henry C. Jones & Leo Carlin, Non-Joinder and Misjoinder of Parties in Common-Law Actions 28 W. Va. L Rev (19220] had the following to say:It is purely technical in its nature, in many instances producing great delay and much inconvenience without any corresponding advantages. The defendants very rarely derive any real and substantial benefit from it
[14]...In terms of Rule 26 (2) of the CCMA Rules a Commissioner may on own accord make an order joining a party to the proceedings. However, the legal basis to do so is when the party to be joined has a substantial interest in the subject matter of the proceedings or that such a party may be prejudicially affected by the outcome of the proceedings. The Minister did not have any substantial interest in the subject matter the unfair labour practice dispute and the Minister may not be prejudicially affected when the PIC is ordered or not ordered to pay the STI and the LTI as contractually obliged.
[17] In summary, the plea of non-joinder was not raised and even if it was successfully raised, it does not in its nature destroy the claim of Muller. Accordingly, by dismissing the claim of Muller based on non-joinder, Lebea committed a reviewable irregularity.
PA3/20
Ruselo v Sutherland Transport and Others (PA3/20) [2022] ZALAC 1; [2022] 4 BLLR 347 (LAC) (18 January 2022)
[33] Therefore, the citation of an employer in proceedings in those forums by its tradename, or a name, or names it also uses for its business, is not incorrect or fatal. The employer would be bound by an award made in that name.
[29] In terms of Rule 14 of the High Court Rules, it is permissible to cite a firm, partnership or association by its tradename. Even though that Rule does not specifically refer to a trust, the High Court has since held, in essence, that the provisions of Rule 14 also apply to a trust which conducts its business under a tradename, or a name other than that by which it is otherwise known [Cupido v Kings Lodge Hotel 1999 (4) SA 257 (E) at 265B-H.]
[31] Simply using the trusts name and not, at least expressly, citing the actual trustees of the trust, is also not fatal, since it is accepted that reference to the trust in litigation may be understood as a reference to the trustees for the time being of the trust, whomever they might be[4].[32] While there is no specific rule applicable to proceedings in the CCMA or Bargaining Councils similar to Rule 14 (High Court), and Rule 20 (Labour Court) there is no reason why the position in those forums should be any different. Proceedings there are required to be simple, streamlined and not complicated by legal formality and procedure. Further, it is more likely that an employee, even if assisted by a Union, may be more familiar with the name generally used by his employer, rather than with the technical name, or true nature of the employer entity.
[40] Even though the Labour Court could not correct the award, it did not have to, because on the facts, properly determined as assessed, there was nothing to correct. In addition to making the award an order of court by virtue of its power to grant the alternative relief, it merely had to declare that the award was binding on the trust, through its trustees for the time being, and that the court order was enforceable against them in their capacities as such and executable against the assets of the trust.
JA92/20
Gerber v Stanlib Asset Management (Pty) Ltd (JA92/20) [2021] ZALAC 51 (13 December 2021)
[23] It is my view that the appellants argument that the disciplinary code and grievance procedures should include only what regulates discipline in the workplace and cannot include private arbitration because private arbitration regulates the relationship post-employment, is fundamentally flawed. The disciplinary process and the arbitration process are all part of the same process. Although the arbitration process happens after dismissal, both processes are included in the disciplinary code and grievance procedures, because the arbitration clause serves to inform the employees what process to follow after dismissal.
[31] Having accepted that the respondents Disciplinary Code and Grievance Procedures form part of the ER Handbook, it goes without saying that the compulsory private arbitration clause was ultimately incorporated by reference in the letter of appointment and forms an integral part of the appellants employment contract.
[43] Whilst dealing with the enforceability of the arbitration clause in relation to the old section 158 of the LRA, the court in Steiler Properties CC v Shaik Prop Holdings (Pty) Ltd,[9] at paras 49 54 thereof, emphasised the following:[49] The contract provides for arbitration in clause 16. The current dispute falls within the scope of the arbitration clause. Arbitration clauses are governed by the Arbitration Act 42 of 1965 (The Act).[50] When parties, exercising their contractual autonomy, make provision as, in the present dispute, for the private resolution of their disputes, the Courts are enjoined to respect the parties choice of method for resolving their disputes. The Courts deference, to the parties choice to arbitrate their disputes, does not amount to an abdication of jurisdiction. Arbitration clauses do not oust the Courts jurisdiction. Under the Act, the Courts retain the powers to assist, supervise and intervene in the dispute and the arbitration before, during and after the arbitration.[51] Due to the binding nature of the arbitration clause, neither party to this dispute, may, unilaterally initiate Court proceedings. The Act, stipulates that, if either party, unilaterally, initiates Court proceedings, as the applicant (purchaser) has done, the other party, in the position of first respondent (seller), may apply to Court for an order, staying proceedings.[52] Unless it is specifically provided in the contract, neither party to an arbitration contract may terminate the contract without the consent of the other parties to the contract. However, the Court on application and on good cause shown, as to why the matter should not be referred to arbitration in accordance with the contract, may hear it.[53] No argument has been made before me or on papers, to show good cause, why the current dispute, should not be referred to arbitration, in accordance with the parties choice, to resolve their disputes privately. It is the practice of our law that pacta sunt servanda. As Cameron J observed, in Brisley v Drotsky [2002 (4) SA 1 SCA p 34 35] Courts, are required to respect the parties contractual autonomy, as it informs, inter alia, the constitutional values of dignity and equality.[54] Absent any special circumstance why the parties choice of arbitration, as a dispute resolution mechanism, should not be respected, it is my view, that this application was brought prematurely. This dispute, should first, have been referred to arbitration. Consequently, first respondents (sellers) application, for stay of proceedings, is granted. However, I do not consider it fair, to order costs against the applicant (purchaser).
[47] Furthermore, when dealing with the application of section 158(2) of the LRA, this court in Parliament of the Republic of SA v Charlton,[(2010) 31 ILJ 2353 (LAC).] at paras 34 35 thereof, held that:[34] . . . Therefore, once it is apparent to the court that the dispute is one that ought to have been referred to arbitration, the court may stay the proceedings and refer the dispute to arbitration or it may, [with the consent of the parties,] and if it is expedient to do so, continue with the proceedings [sitting as an arbitrator]. It cannot deal with the dispute outside the ambit of these provisions. Accordingly, it [the court] has no power to proceed to adjudicate the dispute on the merits simply because it is already seized with the matter. To do so would be in conflict with the provisions of s 157(5) and s 158(2) of the LRA.[35] In resolving labour disputes a clear line must be drawn between the different fora that have been set up by the LRA.[48] This case, as well, was decided before subsection 158(2) of the LRA was amended, but the principle as to how to exercise the discretion still finds application to the amended subsection.
[52] The appellants proposition that the court a quo exercised the discretion to stay the proceedings on a material misdirection that a private arbitration agreement ousts the courts ordinary jurisdiction can no longer be maintained due to my finding that the court a quos decision on the jurisdiction point ought to be upheld. It is not for a court to disregard, replace or override contractual terms agreed to by the parties.
[65] In the circumstances, it is my view that when the court a quo took a decision to stay the proceedings and refer the disputes in respect thereof to arbitration, it exercised a discretion. And, for the reasons provided above, that discretion was exercised judicially.
JR 2827/18
Madikizela v City of Ekurhuleni Metropolitan Municipality and Another (JR 2827/18) [2021] ZALCJHB 205 (26 July 2021)
[36] When this matter was argued before me, the applicant did not dispute that under the Arbitration Act, there was no power given to this Court to substitute the arbitration award with a determination of its own.
Hendricks v Overstrand Municipality and Another (2015) 36 ILJ 163 (LAC) at para 20. See also Merafong City Local Municipality v SA Municipal Workers Union and Another (2016) 37 ILJ 1857 (LAC) at para 38 and at para 28.
In sum therefore, the Labour Court has the power under s 158(1)(h) to review the decision on (i) the grounds listed in PAJA, provided the decision constitutes administrative action; (ii) in terms of the common law in relation to domestic or contractual disciplinary proceedings; or (iii) in accordance with the requirements of the constitutional principle of legality, such being grounds 'permissible in law'.... Legality includes a requirement of rationality. It is a requirement of the rule of law that the exercise of public power by the executive and other functionaries should not be arbitrary. Decisions must be rationally related to the purpose for which the power was given, otherwise they are in effect arbitrary and inconsistent with the rule of law.
[49] It is true that in terms of section 33(2) of the Arbitration Act, a review application based on section 33(1) must be brought within six weeks of the award being made.
[58] It is of course true that even though the review grounds as articulated in section 145(2) of the LRA is very similar to section 33(1) of the Arbitration Act, the primary difference is that the constitutionally suffused ground of the outcome of the arbitrator having to be a reasonable outcome in order to be sustainable on review does not apply to review applications under the Arbitration Act.
In National Union of Mineworkers on behalf of Employees v Grogan No and Another (2010) 31 ILJ 1618 (LAC) at para 33; see also Pikitup Johannesburg Soc Limited v Tokiso Dispute Settlement (Pty) Ltd and Others (JR173/2014) [2016] ZALCJHB 179 (17 May 2016) at para 26; Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019) at para 45.
. since this is a review of a private arbitration award, it can only be reviewed on the grounds set out in s 33 of the Arbitration Act and not in terms of the grounds set out in s 145 of the LRA as extended by the judgments of this court in Carephone and Shoprite Checkers and by the judgment of the Constitutional Court in Sidumo. In my view, while parties to a dispute are able to give an arbitrator powers which he otherwise does not have in resolving their dispute, they cannot do the same with regard to a court such as the Labour Court which has statutory power to review arbitration awards issued by such arbitrator. Parties to a dispute such as the parties in this case cannot confer on the Labour Court powers to review a private arbitrator's award on grounds which it otherwise has no power to rely upon to review such an award. It would be different if there was a provision of the LRA which conferred upon the Labour Court the power to review such an award on any grounds upon which the parties to a dispute may agree. That is not the case here. Accordingly, I hold that the grounds of review applicable in this case are only those grounds set out in s 33 of the Arbitration Act .
Telcordia Technologies Inc v Telkom SA Ltd [2006] ZASCA 112; 2007 (3) SA 266 (SCA) at para 51. See also paras 59 and 67 of the judgment. See further Transnet National Ports Authority v Reit Investments (Pty) Limited 2020 JDR 2104 (SCA) at para 37; UASA v Impala Platinum Ltd and Others (2010) 31 ILJ 1702 (LC) at para 43; Standard Bank of SA Ltd v Mosime NO and Another (2008) 29 ILJ 3078 (LC) at para 34.
by agreeing to arbitration the parties limit interference by courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, 'common law' or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the court.
Mohlomi v Ventersdorp/Tlokwe Municipality and Another (2018) 39 ILJ 1096 (LC) at para 29.
as envisaged by section 158(1)(h) of the LRA, the applicant must show that these decisions failed to meet the following essential requirements: (1) The decision was rationally connected to the purpose for which the power was given to it, thus meaning that the decision would not be considered to be arbitrary; (2) The decision accounted for all the relevant facts informing the decision, to the extent that the decision made can be said to be rational; (3) The process giving rise to the decision was lawful and fair; and (4) the decision itself was lawful, meaning that it is not a decision that falls outside the scope of the power afforded to the functionary.
[66]...the appropriate point of departure is a consideration of section 33(1), which reads:(1) Where (a) any member of an arbitration tribunal has misconducted [...para [84]...misconduct provisions as contemplated by section 33(1)(a) of the Arbitration Act, the applicant has unfortunately made out no case in this regard. She has not indicated the kind of mala fides, turpitude or unacceptable behaviour on the part of the second respondent that would justify intervention in terms of this provision. ] himself in relation to his duties as arbitrator or umpire; or(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its power; or(c) an award has been improperly obtained,the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside. . [Or ...[85]...section 33(1)(b) for the applicant to rely upon, and in this regard, did the applicant prove that she was denied a fair trial of the issues?]
[68] Where it comes to misconduct as contemplated by section 33(1)(a) of the Arbitration Act, it does not mean a gross or material mistake committed by the arbitrator. It is narrower than that. Misconduct in this context contemplates wrongful or improper conduct, dishonesty, mala fides or partiality and moral turpitude
First, and in considering the meaning of gross irregularity, the Court in Telcordia held that the following reasoning in Dickenson & Brown v Fisher's Executors[1915 AD 166.] was still good law:[Id at para 55. See also para 57 of the judgment.]
This Court held that a review on this basis was impermissible on two grounds. The first was the general principle that when parties select an arbitrator as the judge of fact and law, the award is final and conclusive, irrespective of how erroneous, factually or legally, the decision was. Second, the colonial laws (in that case the one of Natal) did not change the position. Such an error, he held, could not amount to misconduct unless the mistake was so gross and manifest that it could not have been made without some degree of misconduct or partiality, in which event the award would be set aside not because of the mistake, but because of misconduct.
[71]...Palabora Copper (Pty) Ltd v Motlokwa Transport and Construction (Pty) Ltd[2018 (5) SA 462 (SCA) at para 8. As also said in Lufuno Mphaphuli (supra) at para at para 260: In each case, the question will be whether the procedure followed afforded both parties a fair opportunity to present their case .] as follows: It suffices to say that where an arbitrator for some reason misconceives the nature of the enquiry in the arbitration proceedings with the result that a party is denied a fair hearing or a fair trial of the issues, that constitutes a gross irregularity. The party alleging the gross irregularity must establish it. Where an arbitrator engages in the correct enquiry, but errs either on the facts or the law, that is not an irregularity and is not a basis for setting aside an award. If parties choose arbitration, courts endeavour to uphold their choice and do not lightly disturb it. The attack on the award must be measured against these standards.
JA90/15
Lou-Anndree v Afrox Oxygen Limited (JA90/15) [2018] ZALAC 4 (29 January 2018)
There is no ulterior motive; the appellant acted in good faith and reasonably believed that the information was substantively true. It then follows that the respondents contention that the appellant was dismissed for incompatibility is nothing short of fiction and the only probability is that the appellants dismissal was in retaliation for her disclosure of the irregularities in the re-grading process.
suffered occupational detriment. Her dismissal is therefore automatically unfair and, as such, she is awarded compensation equivalent to 18 months remuneration based on the gross salary she was earning at the time of her dismissal.
JA22/201
SAFPU and Others v Free State Stars Football Club (Pty) Ltd (JA22/2016) [2017] ZALAC 16; (2017) 38 ILJ 1111 (LAC) (21 February 2017)
dispute resolution forum onerous for employee who must pay fees unlike in the Labour and Labour Appeal Court; moreover employees would have the benefit of speedy resolution mechanisms of the LRA; matter requiring little evidence as impermissible to retrench fixed term employees; Labour Court more suitable than forum to hear the dispute
(a) The onus of satisfying the court that it should not exercise its discretion in favour of referring the matter to arbitration is on the party who instituted the legal proceedings (the appellants). See Kathmer Investments (Pty) Ltd v Woolworths (Pty) Ltd[3] and Universiteit van Stellenbosch v J A Louw (Edms) Bpk.[4](b) The discretion of the court to refuse arbitration may only be exercised when a "very strong case" is made out. See The Rhodesian Railways Ltd v Mackintosh[5] and National Bargaining Council for the Road freight Industry and Another v Carl Bank mining Contracts (Pty) Ltd and Another[6]. It has also been said that "there should be 'compelling reasons' for refusing to hold a party to his contract to have a dispute resolved by arbitration". See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd[7]. Lastly, it has been held that a court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration in accordance with the agreement. See Metallurgical and Commercial Consultants (Pty) Ltd v Metal Sales Co (Pty) Ltd relying on Bristol Corporation v John Aird & Co.[8]
Eskom: Rotek Industries Soc Ltd v Mans and Others (JR226/2016) [2017] ZALCJHB 321 (7 September 2017)
[39]As stated by the Court inTelcordia it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; and to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. Otherwise a review would lie in every case in which the decision depends upon a legal issue, and the distinction between procedure by appeal and procedure by review, so carefully drawn by statute and observed in practice, would largely disappear.
[22] The award sought to be reviewed in this instance is an award by a private arbitrator pursuant to an agreement between the parties containing an arbitration clause. As such, the legal principles applicable to review applications in terms of sections 145 and 158(1)(g) of the LRA, (as enunciated in Sidumo & another v Rustenburg Platinum Mines Ltd & others[11] and some of the other cases since Sidumo[12] do not find application in this review.
[24] Section 33(1) of the Arbitration Act reads as follows:(1) Where-(a) any member of an arbitration tribunal has misconducted himself in relation to his duties as arbitrator or umpire; or(b) an arbitration tribunal has committed any gross irregularity in the conduct of the arbitration proceedings or has exceeded its powers; or(c) an award has been improperly obtained,the court may, on the application of any party to the reference after due notice to the other party or parties, make an order setting the award aside.
Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and another 2009 (4) SA 529 (CC).
Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.'
Thus, once a challenge to the CCMAs jurisdiction was raised, the commissioner was required to refer it to the appropriate CCMA official for a decision in terms of s 147 of the LRA.
Referral premature. Dispute to CCMA while he was serving out his notice period.
Section 147: But once the CCMA made the election, the parties were bound by it.
Court slow to interfere
Telcordia Technologies v Telkom SA Ltd SCA 26/05
by agreeing to arbitration, the parties limit interference by courts to the ground of procedural irregularities set out in s 33 (1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement.
Standard Bank of SA v Mosime and others (2008) 10 BLLR 1010 (LC),
J 601/2021
Nabbie v Ferrari and Others (J 601/2021) [2022] ZALCJHB 322 (21 November 2022)
[4] The first is the insurmountable obstacle faced by the applicant is presented by section 157 (5). To the extent that the applicant seeks an order to the effect that his dismissal for misconduct was substantively and procedurally unfair, this is a matter that the LRA requires to be determined by arbitration. That being so, section 157 (5) precludes this court from exercising jurisdiction.
[5] The second insurmountable obstacle faced by the applicant is the fact that there has been no conciliation of any unfair dismissal dispute. In Food and Allied Workers Union obo Goaoshubelwe v Piemans Pantry (Pty) Ltd[Numsa v Intervalve (Pty) Ltd (2015) 36 ILJ 363 (CC).] the Constitutional Court stated:[199] The scheme of the LRA makes a referral to conciliation a mandatory first step in the process that may ultimately lead to adjudication. While conciliation may not be adjudicative in nature, it is a necessary and mandatory part of the dispute resolution process that the LRA creates and it occurs within the operations of the CCMA, which is an independent and impartial forum. It is not possible to activate the adjudicative features of the CCMA without first resorting to conciliation the referral of disputes to the CCMA for conciliation constitutes the service of a process commencing legal proceedings.
JR 416 / 20
Mystra (Pty) Ltd t/a Silverton Spar and Tops v Thoka N.O. and Others (JR 416 / 20;JR 417 / 20;JR 418 / 20;JR 420 / 20;JR 421 / 20;JR 422 / 20;JR 423 / 20) [2022] ZALCJHB 290 (14 October 2022)
[40] In Satinsky 128 (Pty) Ltd tla Just Group Africa v Dispute Resolution Centre and Others[(JR 1479/2012) (2013] ZALCJHB 38 (26 February 2013) at para 45.] the Court dealt with an opposed rescission application that was determined on the papers without a hearing being convened, and had the following to say:'A further concern I have in this matter is the absence of a rescission hearing before the second respondent made his ruling. Whilst I accept that the DRC Rules dictate that the first respondent can determine applications in the manner its deems appropriate, and it thus can be argued a rescission hearing is not required, my concern remains that in certain instances, it is simply not appropriate to just deal with rescission applications on the documents filed. There seems to be a blanket approach by the CCMA and the bargaining councils to determine all rescission applications just on the documents filed, which approach in my view cannot be correct. In certain instances, fairness and the requirements of the principle of audi alteram partem dictates that a hearing to determine the issue of rescission must be convened, no matter what the Rules of the CCMA or bargaining council may provide as to conducting proceedings in a manner deemed appropriate '
The Court in Satinsky supra then dealt specifically with the issue when the convening of a hearing may be considered to be appropriate and necessary, and held:[41]'Of course, there can be no hard and fast rules as to when such a hearing should be convened. This must be determined on a case by case basis, by the arbitrator to whom the determination of the rescission application is allocated. In my view, the following can however serve as guidelines when the decision should rather be made to convene a hearing to determine the rescission application:47.1. The determination of a rescission application only on the papers should principally be reserved for instances where the rescission application is unopposed;47.2. Where the rescission application is opposed, a rescission hearing should be convened. This situation will leave parties with the view that justice is not only done, but is actually seen to be done in their presence. There may be instances however where even an opposed rescission would not necessitate a hearing. An example would be where it is clear from the documents filed that the default arbitration award was indeed erroneously made, as in such a case, it is not even necessary to determine the issue of willful default and prospects of success. Another example would be where the explanation for the default is not contested, and only the issue of prospects of success is contested, because of the manner in which the issue of prospects of success must be determined
JR1157/20
NTEU obo Moeketsi v The CCMA and Others (JR1157/20) [2022] ZALCJHB 226 (16 August 2022)
Application seeking to review and set aside a condonation ruling. The commissioner found that no reasonable explanation for the delay has been proffered. Interpretation of section 191 (1) (b) (ii) of the LRA the 90 day period commences to run from an act or omission alleged to be an unfair labour practice and not from the date parties failed to achieve internal resolution of the act or omission (dispute). A party seeking condonation must provide a detailed explanation for the delay as opposed to an excuse for the wrong interpretation of the legal provision. Applying the wrong legal interpretation and or strategy does not amount to a proper and reasonable explanation.The granting and refusal of condonation involves an exercise of true discretion. A Court of review may only interfere with the exercise of discretion if (a) wrong principles have been applied; (b) the exercise is capricious; (c) the exercise is tainted by mala fides; or (d) it has not been exercised judiciously.
[24] Thus, it is wrong in my view to suggest that before exhaustion of the internal remedies, an employee is not entitled to refer a dispute to the CCMA or the bargaining council for resolution. The time periods for referral exist for a reason. Labour disputes require speedy resolution.
[26] The doctrine of exhaustion is effectively an administrative law principle. It is aimed at giving parties an opportunity to attempt resolution before rushing to Court for judicial review. The Federal Court of Appeal in Canada (Border Services Agency) v CB Powell Limited[2010 FCA 61.] appropriately defined the exhaustion doctrine to be:[30] The normal rule is that parties can proceed to the court system only after all adequate remedial recourses in the administrative process have been exhausted. The importance of this rule in Canadian administrative law is well-demonstrated by the large number of decisions of the Supreme Court of Canada[27] In Gupta v Attorney General of Canada[2020 FC 952.], Madam Justice St-Louis dealing with a judicial review by Dr Gupta had the following to say about the doctrine.[31] Administrative law judgments and textbooks describe this rule in many ways: the doctrine of exhaustion, the doctrine of adequate alternative remedies, the doctrine against fragmentation or bifurcation of administrative proceedings, the rule against interlocutory judicial reviews and the objection against premature judicial reviews[32] This prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway.
[28] It is by now settled law that labour disputes do not amount to administrative actions[Gcaba v Minister for Safety and Security and others (2010) 31 ILJ 296 (CC) and Chirwa v Transnet Limited and others 2008 (4) SA 367 (CC).]. Therefore, it is entirely inappropriate, in my view, to infuse into the LRA administrative law principles. It ought to be remembered that the dispute resolution bodies envisaged in the LRA do not function like Courts. They are not possessed with judicial review powers like the Courts do. Even section 7 (2) (a) (b) (c) of the Promotion of Administrative Justice Act (PAJA)[Act 3 of 2000.] does not deprive a Court of its review jurisdiction. A Court may direct a party to first exhaust internal remedies before it can review any administrative decision. Section 7 (1) (a) of PAJA expressly provides that the 180 days commence to run after the internal remedies are concluded. The LRA has no similar provisions.
[18] This court has drawn on the principles established by the High Court in its application of Rule 42 (1), the basis for the drafting of section 144. An award or ruling will be regarded as having been erroneously granted if:there was an irregularity in the proceedings or if it was not legally competent for the court to have made such an order or if there existed at the time of its issue a fact of which the judge was unaware which would have precluded the granting of the judgement and which would have induced the judge, if he had been aware of it, not to grant the judgment. Though in most cases such an error would be apparent on the record of the proceedings, it is submitted that in deciding whether a judgment was erroneously granted, a court is not confined to the record of the proceedings (Myburgh and Bosch Reviews in the Labour Court, at p 395, quoting Erasmus HJ Superior Court Practice B1-308.)
[19] Turning then to the ruling under review, to the extent that the third respondent considered that the applicant had failed to show good cause (see paragraph 11 of the award), good cause is not a requirement, except in the case of section 144 (d), when rescission is sought of an award made in the absence of a party. To the extent that the third respondent considered that it was incumbent on the applicant to establish good cause, this is not the case since the applicant clearly relied on the ground referred to in section 144 (b).
JR 786/2021
Mothupi v SA Local Government Bargaining Council and Others (JR 786/2021) [2022] ZALCJHB 232 (15 August 2022)
[16] What the above chronology discloses, and which neither the second or third respondents or any of the parties raised in any of the proceedings sought to be reviewed, is that the original referral form, filed with the bargaining council on 14 February 2019, bears the signature of the applicant, albeit in the incorrect place. I fail to appreciate therefore how it can be said that the initial referral was thus defective by any measure, there was substantial compliance with the relevant rule requiring a referring party personally to sign the referral form. The matter ought properly to have ended there.
JR 2047/20
Prestige Campworld (PTY) Ltd t/a Comet Caravans v Morne and Others (JR 2047 / 20) [2022] ZALCJHB 213; (2022) 43 ILJ 2379 (LC) (26 July 2022)
Basic Conditions of Employment Act, 1997 - section 73A considered - claims to the CCMA only competent for employees earning less than threshold under section 6(3)
asic Conditions of Employment Act, 1997 - section 6(3) considered - meaning of "earnings" considered - earnings include commissions earned by employeeReview application - commissioner erroneously determining earnings of employee - employee earning in excess of threshold in terms of section 6(3) - CCMA having no jurisdiction to entertain claim under section 73A - arbitration award reviewed and set aside.
[56] In BMW (SA) (Pty) Ltd v Van der Walt[24] this court held, in the context of whether a second disciplinary enquiry in respect of the same misconduct could be instituted by the same employer against the same employee, that it was not necessary to decide whether the principles of autre fois acquit or res judicata applied in Labour law, since, ultimately, the question was one of fairness, which was paramount[25]. In Feni v Commission for Conciliation, Mediation and Arbitration and others [26] this Court once again considered the question, but did not conclude that the principle of res judicata was applicable, although it held that the principle of lis alibi pendens was, apparently following the lead of the Constitutional Court in Association of Mineworkers and Construction Union and others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) and others[27], where it, seemingly, accepted that the lis pendens principle would be applicable in labour law.
CA 1/2021
Myers v The National Commissioner of South African Police Service and Another (CA 1/2021) [2022] ZALAC 102 (30 June 2022)
[52] While the res judicata and stare decisis principles seem to have the same broad object, namely, to ensure certainty and finality, they are indeed two different concepts. There is no question that stare decisis is applicable to proceedings in the Commission for Conciliation, Mediation and Arbitration (CCMA) and in bargaining councils. The full Latin maxim states stare decisis et non quietamovere meaning one stands by decisions and does not disturb settled points.[See, inter alia, Turnbull Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) ("Turnbull Jackson") para 50 fn. 100.]
[58] It can hardly be contended that the power of an arbitrator and a commissioner in terms of section 158(1) of the LRA, to conduct the arbitration in a manner that he or she considers appropriate, is the equivalent of a courts powers in terms of section 173 of the Constitution. The power to develop the common law belongs exclusively to the courts and the legislature.
JR1187/17
Manyala v MEC of Health, Mpumalanga and Others (JR1187/17) [2021] ZALCJHB 423 (5 November 2021)
[8] The respondents are correct and their contention is supported by the case law. In NUMSA v Intervalve (Pty) Ltd and Others[[2015] 3 BLLR 205 (CC)], Cameron J explained the purpose of section 191 as being to ensure that, before parties to a dismissal or unfair labour practice dispute resort to legal action, a prompt attempt should be made to bring them together and resolve the issue before them. Resolving the issues early has benefits not only for the parties who avoid conflict and costs, but also for the broader public, which is served by the productive outputs of peaceable employment relationship. The general purpose of section 191 is to enable the employer to participate in the conciliation proceedings.[9] In NUMSA v Driveline Technologies[[1999] ZALC 157 (LC) para 38], Zondo AJP (as he then was) explained the provisions of section 191 as follows:The Act requires some disputes to be referred to arbitration, and, others, to adjudication, if conciliation fails. Whether a dispute will end up in arbitration or adjudication it must first have been referred to conciliation before it can be arbitrated or adjudicated.
JR1516/19
Kekana v Education Labour Relations Council and Others (JR1516/19) [2021] ZALCJHB 408 (1 November 2021)
[23] The applicants contentions that there was no evidence led in regards to the breakdown in the trust relationship is nonetheless debunked by his own reference to Implala Platinum Limited v Jansen and others[[2017] 4 BLLR 325 (LAC).], which he had acknowledged laid down the principle that a breakdown of a trust relationship may be implied from the nature of the misconduct itself without more. This principle was further reiterated in Khambule v National Union of Mine Workers and Others[(JA89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) at para 13], where the Labour Appeal Court (LAC) further added that even if evidence was led of a breakdown in the relationship, it is ultimately the arbitrator who must determine whether a dismissal in the circumstances of the matter before him, is the appropriate sanction.
JR262/20
SATAWU obo Theledi v Commission for Conciliation, Mediation and Arbitration and Others (JR262/20) [2021] ZALCJHB 368 (20 October 2021)
[9] Pertinently, the CCMA Practice and Procedure Manual,[5] also underscores the Commissioners discretion to decide whether an application for postponement should be granted or refused; a discretion that should be exercised judicially and for substantial reasons. It also enjoins a party seeking postponement to approach the CCMA timeously and as soon as the circumstances which may justify an application become known to the applicant. Most importantly, the application for postponement must bona fide and as a tactical ploy to delay or gain unfair advantage and should not cause prejudice to the other party.[6][10] In Carephone (Pty) Ltd v Marcus NO and Others,[7] while the LAC echoed the principles applicable in postponements as alluded to in Qwelane, it drew attention to the fact that postponements at the CCMA should be treated with circumspect as they are not necessarily on a par with that in courts of law for the following reasons: The first is that arbitration proceedings must be structured to deal with a dispute fairly quickly (s 138(1)). Secondly, it must be done with 'the minimum of legal formalities' (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted[8][11] In the present instance, the application for postponement was not made timeously nor was PRASA warned of the turn of events. The medical certificate was not presented to the Commissioner but a picture was shown from Mr Sigidanes cell phone. The Commissioner took into account that there had been postponements before and was not convinced that Ms Theledi was indeed indisposed. Ms Theledi had attended the proceedings the previous day and it was reasonable for the Commissioner to request to know what had befallen her overnight.[12] Nonetheless, SATAWU did not request indulgence to substantiate its claim by either calling the doctor or request that the matter stand down to make alternative arrangements.
concilliation before the dismissal date: [74] In Paper Printing Wood and Allied Workers Union and others v Nasou-Via Afrika, A Division of the National Education Group (Pty) Ltd,[(1999) 20 ILJ 2101 (LC).] a special plea was raised on the basis that the dismissal dispute was referred to the CCMA prematurely, since the dismissal dispute was referred to the CCMA prior to the employees dismissal. The dispute was conciliated (on 29 May 1998) before the date of dismissal (8 June 1998) and this Court referred the dismissal dispute back to the CCMA for conciliation. The issue was not that the dispute had been referred before the date of dismissal but rather that the dispute had been conciliated before the dismissal date hence the finding of Revelas J that the dispute was not properly before this Court as it had been referred to the CCMA and conciliated prematurely. Clearly the CCMA did have jurisdiction to conciliate a dispute which was referred prior to the date of dismissal provided that the conciliation took place after the date of dismissal and there was a dismissal dispute to conciliate, otherwise the learned judge would not have referred the self-same dismissal dispute back to the CCMA for conciliation. The Court also held that if there is no legal certainty as to when a dismissal dispute may be referred to the Labour Court for adjudication, there is a chance that premature referral may be prejudicial to either of the parties.[30]...[77] The Court found that the referral of the unfair dismissal dispute was premature and a nullity, and that it thus lacked jurisdiction, because as at the date of conciliation, there were no dismissals yet and therefore a dismissal dispute could not have been conciliated (unlike in casu where at the date of conciliation, the Applicant had been dismissed and an unfair dismissal dispute could be conciliated). The Court in Darmag Industries supra did not lack jurisdiction simply because the dispute had been referred to the CCMA before the date of dismissal.
[81] The Applicant in casu did not refer an unfair dismissal dispute to the CCMA before her alleged dismissal. The Applicant contends that such an unfair dismissal dispute was, however, conciliated on 27 January 2020 on a date subsequent to the alleged date of dismissal (31 December 2019). Therefore, objectively speaking, all the necessary facts that would give the CCMA jurisdiction to entertain an unfair dismissal dispute between the Applicant and the Respondent were in existence by the conciliation date on 27 January 2020.
[83] In referring to Zeuna-Starker supra, the Commissioner highlighted that Myburgh JP made it clear that the CCMA is under a duty to ensure that it has jurisdiction to conciliate a case before doing so and that the learned judge went on to say the following:[6] The commissioner was obliged to enquire into the facts to decide whether he had jurisdiction to conciliate the dispute, He was not bound by the description, and date of the dispute provided by the respondent in the form LRA 7.11. Rather, the commissioner was obliged to examine all the facts in order to ascertain the real dispute between the parties.[38]
JS614/20
Motlhoioa v Council for Scientific Research and Industrial Research (JS614/20) [2021] ZALCJHB 340 (6 October 2021)
[24] A party is not necessarily confined to the type or nature of the dispute which he/she/it has referred to the CCMA. A party would, however, be confined to what dispute had been conciliated.
[25] In Driveline Technologies (Pty) Ltd [ [2000] 1 BLLR 20 (LAC).]the Labour Court had to determine whether subsequent to the issuing of a certificate of outcome by the Bargaining Council in an unfair dismissal (retrenchment) dispute, the union could amend its statement of case to reflect that there had been an automatically unfair dismissal. On the facts, the applicant referred the dispute to conciliation and described the dismissal as an unfair termination of services and this was reflected on the certificate.[5] When the dispute was subsequently referred to the Labour Court for adjudication, it was referred as a dismissal on the basis of operational requirements.[6] NUMSA already filed a statement of case with the Labour Court and subsequently wanted to amend that statement of case.[7] The Court held that that the parties were bound by the categorization of the dispute by the conciliator who heard the dispute and not necessarily the categorization reflected on the form which is first submitted to the CCMA.
[26] The matter then went on appeal and the Labour Appeal Court held that there is no doubt that operational requirements or automatically unfair are merely reasons for the dismissal and do not constitute a dispute on their own and that on a proper reading of section 187(1) of the LRA it is clear that whether a dismissal is automatic or not depends on the reason. This was confirmed by the Constitutional Court in National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and Others[8]. It is therefore clear on a proper interpretation of section 157(4), section 191 and section 187(1) of the LRA, what is referred to conciliation is the dispute and not the cause of action (or any claims that may stem from the dispute).
[27] The Labour Appeal Court went on to state that section 157(4)(a) of the LRA grants the Labour Court a discretion to determine a dispute which has not been submitted to conciliation.[] It stated the following in this regard:The certificate which a mediator is obliged to issue in terms of s 135(5)(a) of the Act requires a statement only that the dispute has remained unresolved. Naturally enough the conciliator would state what dispute remained unresolved, otherwise the certificate of outcome would be unsatisfactorily vague. It would not serve to alert the Labour Court to what the parties had discussed in the conciliation phase. But it has no bearing on the future conduct of the proceedings. The forum for subsequent proceedings is determined by what the employee alleges the dispute to be. According to this characterization, the employee may either request the commission to arbitrate the dispute or may refer it to the Labour Court. It is unnecessary to consider here what the consequences are if the employee's categorization of the dispute turns out to be incorrect. In the present case, the dispute could, so the appellants allege, either have been classified as an unfair dismissal for operational reasons in terms of s 188(1)(a) (ii) or as an automatically unfair dismissal in terms of s 187(1)(c) of the Act to compel the employee to accept the employer's demand on a matter of mutual interest. In either case the appropriate forum would be the Labour Court.
[29] In its majority judgment in Intervalve, the Constitutional Court held as follows:Section 191(5) creates two conditions one of which must be met before a dismissal dispute may be arbitrated or may be referred to the Labour Court for adjudication. The first condition is that the CCMA or bargaining council, as the case may be, must have issued a certificate of non-resolution of the dispute. The second is that a period of 30 days from the date on which the CCMA or the bargaining council received the referral must have lapsed.[13]Section 191(5) stipulates one of two preconditions before the dispute can be referred to the Labour Court for adjudication: there must be a certificate of non-resolution, or 30 days must have passed. If neither condition is fulfilled, the statute provides no avenue through which the employee may bring the dispute to the Labour Court for adjudication.[14]
[31] In Association of Mineworkers and Construction Union and Others v Ngululu Bulk Carriers (Pty) Limited (In Liquidation) and Others,[(2020) 41 ILJ 1837 (CC)] the Constitutional Court dealt with the issue of whether the Labour Court had jurisdiction to adjudicate an automatically unfair dismissal cause of action where an unfair dismissal dispute had been referred to conciliation at the CCMA.[17][32] The Constitutional Court held that the Labour Court indeed had jurisdiction to adjudicate the automatically unfair dismissal claim. It considered section 191 of the LRA which requires dismissed employees to refer disputes about "the fairness of a dismissal to conciliation" and if conciliation fails and the employee alleges that the reason for the dismissal is one listed in section 191(5)(b) of the LRA (automatically unfair, operational requirements, participation in an unprotected strike and the employees' refusal to join, refused membership or expulsion form a trade union or closed shop agreement), the employee may elect to refer the dispute either to the relevant bargaining council for arbitration, or for adjudication to the Labour Court.[33] The Constitutional Court emphasised that what is referred to conciliation is the dispute and not the cause of action or claims which may arise from the dispute. It was made plain that the reason for the dismissal is always known by the employer prior to conciliation and it is often only at this juncture where employees understand the true reason for the dismissal.[34] The Constitutional Court rejected the Labour Court's view that: "a referral to conciliation of an unfair dismissal dispute does not include an automatically unfair dismissal dispute" and therefore in terms of section 157(4) of the LRA the Labour Court may refuse to adjudicate the dispute if it was not conciliated.[35] The Constitutional Court cited with approval the Intervalve judgment which held that:"Section 157(4)(a) confers upon the Labour Court the power to refuse to determine a dispute if it is not satisfied that an attempt has been made to resolve the dispute through conciliation. Section 157(4)(b) then provides that a certificate issued by a commissioner that a dispute remains unresolved is sufficient proof that an attempt has been made to resolve that dispute through conciliation."[18]
[42] In September and Others v CMI Business Enterprise CC,[(2018) 39 ILJ 987 (CC).] the Constitutional Court was required to determine whether courts are allowed to have regard to evidence resulting from conciliation proceedings. On the facts, the applicants lodged two referral forms with the CCMA, the first was for an alleged unfair labour practice and the second was for alleged unfair discrimination.[21] During conciliation proceedings, it became apparent that the dispute pertained to constructive dismissal as opposed to unfair discrimination.[22] However, the certificate of outcome indicated that the dispute was for unfair discrimination.[43] In the majority judgment, Theron J stated the following:In my view, the commissioner is not bound by a partys categorisation of the nature of the dispute. Rule 15 clearly intended the commissioner to have the right and power to investigate and identify the true nature of the dispute.[23]
[44] The majority went further to say that the general rule is that the referral form and the certificate of outcome are prima facie evidence of the nature of the dispute which was conciliated, but that a party alleging that the nature of the dispute differs from the aforementioned could adduce evidence to such effect.[24] Furthermore the Constitutional Court held that the ultimate question which needs to be asked is whether during conciliation, the substance of the dispute became apparent.[25] In order to adduce evidence to this effect, one would have to be able to rely on the record of the conciliation process.[45] Theron J remarked that an order of court permitting disclosure of a conciliation record relating to the nature of the dispute, would be issued sparingly and only where the interests of justice warrant disclosure.[26][46] On this basis, the Constitutional Court held that evidence as to the nature of the dispute dealt with during conciliation proceedings may be led and that it is not privileged:Evidence as to the nature of the dispute is, to my mind, not privileged. This evidence does not relate to the substance of the proceedings and is merely descriptive. There is nothing in the majority judgments in either Driveline or Intervalve which precludes approaching the question of what dispute was conciliated and what was referred to the Labour Court for adjudication as a question of substance that requires substantive adjudication. In order to determine whether a matter referred to the Labour Court for adjudication had first been referred to the CCMA for conciliation, the first point of reference is the referral documents. However, if there is a dispute as to the nature of the dispute referred to the CCMA then regard may be had to evidence outside of these documents.[27]
[54] ... The importance of section 191 in this regard relates to the conciliation or attempt to resolve the issues between the parties i.e. the substance of the dispute between them as apparent during the conciliation, regardless of the dispute which had been categorised in the LRA form 7.11 as sent to the CCMA.
[56] Whilst the actual settlement negotiations are without prejudice, what is said about the type or nature of the dispute is not privileged. This means that what was said during conciliation proceedings about the true nature of the dispute/s may be referred to and relied upon in subsequent proceedings to determine the actual dispute/s subsequently if a dispute arises in that regard (like during a trial before this Court).
[57] In relation to whether there is uncertainty about the true nature of the dispute, the majority of the Constitutional Court (a full bench with a single dissenting judgment from Zondo DCJ) has now pronounced that the employee party is not confined to the dispute as framed in the form LRA 7.11 and that the referral of a specific dismissal dispute to conciliation process is not a precondition that must strictly be satisfied before this Court has the necessary jurisdiction to adjudicate that specific dispute.
[59] In summary, despite the categorization of the dispute by the Applicant in its CCMA referral documents as an unfair labour practice, and the CCMAs certificate of outcome of dispute indicating that an unfair discrimination dispute was conciliated and was to be referred to adjudication before this Court, this Court has the discretion to grant an order in casu allowing the parties to rely on the record of the conciliation proceedings in order to demonstrate whether or not an automatically unfair dismissal dispute was also conciliated by the CCMA. I am of the view that the interest of justice warrants disclosure of the conciliating record.
JS1058/20
Mbombi v Bluespec Holdings (JS1058/20) [2021] ZALCJHB 338 (6 October 2021)
[16] Furthermore, as held in PGC Group of Companies (Pty) Ltd v CCMA [2007] ZALC 59; [2021] 3 BLLR 287 (LC) (PGC Group), the CCMA has jurisdiction to arbitrate a dispute relating to an alleged unfair dismissal based on the employers operational requirements where the employer followed a consultation procedure that applied to that employee only, [4] even when more than one employee was dismissed. [5] On the facts in this matter, the Respondent followed a consultation procedure vis--vis the Applicant that applied to the Applicant alone.
JR1890/16
Department of Public Works, Roads and Transport, Mpumalanga Provincial Government v Sambo NO and Others (JR1890/16) [2021] ZALCJHB 334 (4 October 2021)
[15] Thus, in determining the appropriateness of the sanction, the arbitrator must enquire into the gravity of the contravention of the disciplinary rule; the consistent application of the disciplinary rule and sanction; and the mitigating and aggravating factors. In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[[2007] 12 BLLR 1097 (CC) at para 78.] the Constitutional Court held that:In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employees challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employees conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
[17] The basis of this finding was that the applicant failed to lead evidence to show that the trust relationship was broken. In this regard, the arbitrator clearly failed to take into consideration the employees position, the serious nature of the allegations against them, the public interest in ensuring that allegations of corruption and mismanagement in the public service are acted against swiftly and efficiently. Had he done so, he would have found that corruption went to the heart of the employment relationship and further that it was destructive.
[26] My attention was drawn by Mr Rasmussen to the decision in NUMSA and Another v BMW (South Africa) (Pty) Ltd[(2019) 40 ILJ 1818 (LC)] in which case van Niekerk J held on an interpretation of section 191(5)(b) read with section 191(11) that the 90 days for the referral to the Labour Court is reckoned from the date the Commissioner has certified that the dispute remains unresolved.[15][27] NUMSA v BMW thus follows the authority of the LAC in Hernic. In NUMSA and Another v BMW (Pty) Ltd the dispute was referred to the CCMA for conciliation on 15 February 2018 which process took place on 13 July 2018 and the commissioner issued a certificate of non-resolution. On 11 October 2018, NUMSA referred a dispute to the Labour Court for adjudication. The employer raised a special plea contending that the dispute was referred for adjudication out of time. In dismissing the special plea, the Court relied on Hernic and concluded that the remarks of the LAC in Manentza are obiter to the extent that the SATAWU obo Manentza judgment made reference to any referral for adjudication. The Court held that:
JS991/20
Matunga v G and R Hydraulics (Pty) Ltd (JS991/20) [2021] ZALCJHB 343 (29 September 2021)
[15] Theron J writing for the majority in September and Others v CMI Business Enterprises CC[6] noted that commissioners have three functions: to resolve disputes; to identify the nature of the dispute and to make recommendations to the parties. These functions are not merely clerical and inevitably call for application of the mind, discretion and some adjudication and these functions are effectively to be exercised at the stage contemplated under section 135 as set out above. This is at the stage of conciliation.
JR1793/16
Telkom SA SOC Ltd v Commission for Conciliation, Mediation & Arbitration, Johannesburg and Others (JR1793/16) [2021] ZALCJHB 201 (2 August 2021)
[25] Commissioner Nkopane ruled that Mr. Ngwepe was dismissed on 19 June 2008 and not 07 January 2016. The Second Respondent was mandated to consider the condonation application and decide whether or not to grant condonation. Instead, the Second Respondent second guessed the ruling of Commissioner Nkopane by ruling that the dismissal was on 07 January 2016, by so doing, she exceeding her powers. As a Commissioner, she lacks the power to second guess or review the decision of another Commissioner. It will therefore be in the interest of justice that the ruling of the Second Respondent be reviewed and set aside.
JR262/17
Minister of Justice and Correctional Services v Police and Prisons Civil Rights Union obo Kgagara and Others (JR262/17) [2021] ZALCJHB 194 (2 August 2021)
[36] The commissioners role regarding sanction was restated in the matter of Bridgestone SA (Pty) Ltd v National Union of Metalworkers Union of South Africa and Others[(2016) 37 ILJ 2277 (LAC) at para 17.] where the Labour Appeal Court restated the principles in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[[2007] 12 BLLR 1097 (CC) at para 78.] as follows:To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.[37] In Sidumo, the Court expressed itself as follows regarding what is expected of the commissioner when considering the fairness or otherwise of the sanction:In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.
JR99/2021
Solomons v Phokela NO and Others (JR99/2021) [2021] ZALCJHB 192 (2 August 2021)
[27] The conclusion drawn by Maluleke is bereft of any legal basis. Rule 23 does not call for a signed agreement. It simply requires a written agreement. In law an unsigned agreement is valid unless there is a statutory requirement for a signature. The seven day requirement in subrule 23 (2) (b) finds application in instances where the parties do not appear and present an agreement. In this particular instance what prompted the postponement agreement was an unplanned incident of a witness testing positive for Covid-19, which incident only emerged on 12 August 2020. That was barely two days before the scheduled hearing. The seven days is not cast in stone. The subrule states that at the least seven days. In the circumstances of this case two days notice was sufficient. No party raised any prejudice. One wonders what prejudice, if any, the commission suffered. Besides, Maluleke was fully aware that there was a rule 31 application for postponement. Subrule 23 (3) provides for a different process if subrule (2) is not met. There is no evidence that Maluleke considered the application for postponement. She simply, without giving reasons, declined the application.[28] For all the above reasons, I reach a conclusion that the decision is irrational and ought to be declared to be invalid on application of the principle of legality.
J293/21
Winnie Mabaso Foundation v CCMA and Others (J293/21) [2021] ZALCJHB 46 (24 March 2021)
[3] This application is nothing but an abuse of Court processes. It was ill-conceived, hopeless and baseless in law. The applicant contends that the ruling is incorrect simply because the applicant was not served with the referral forms. There is no merit in this contention. The jurisdiction of the CCMA over dismissals based on operational requirements obtains from section 191 (12) of the LRA. The issue of service has nothing to do with jurisdiction. Defective service is not tantamount to lack of jurisdiction. In terms of rule 6 (3) of the CCMA Rules, the Commission at its discretion may accept proof of service in a manner other than prescribed in the Rules as being sufficient. Section 191 (3) of the LRA provides that an employee must satisfy the Commission that a copy of the referral has been served on the employer. In terms of section 213 of the LRA serve in respect of the Commission means any other method of service specified in the Rules of the Commission.
Akshardham (Pty) Ltd v JSR 108 Investments CC and others[1]
[14] This is not a case where the proceedings have begun without notice or where there was mere knowledge of the issue of summons. The summons were served incorrectly and the subsequent proceedings are, therefore, not void as JSR would have itJSR has been afforded, and has utilised, the opportunity to be heard. There has thus been proper service and the non-compliance with the Uniform Rules of Court becomes irrelevant.
[5] Similarly, in casu, the applicant having appeared on 30 November 2020, it had the opportunity to be heard and the fact that the referral forms would have been not served or served irregularly is of no moment. Rightfully, Commissioner Ngwane should not have entertained the point, since it was not in reality a jurisdictional point, but should have commenced with arbitration forthwith.
JR 2642/2019
South African Sports Confederation and Olympic Committee (SASCOC) v Commission for Conciliation, Mediation and Arbitration and Others (JR 2642/2019) [2021] ZALCJHB 23 (1 March 2021)
[13] Rule 29 of the CCMA rules is the starting point. That rule discloses only relevance as a criterion for the disclosure of documents. As reflected above, rule 29 (3) empowers a commissioner to make an order as to the disclosure of relevant documents...The investigation report is thus entirely irrelevant to the issue of the fairness of the employees dismissal, particularly given that it was not used in the disciplinary enquiry and will not be relied on by the applicant in the arbitration proceedings.
JR1768/19
Food lovers Holdings (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1768/19) [2021] ZALCJHB 40 (23 February 2021)
[12] In all the circumstances, absent the confirmation of the Commissioners appointment by the CCMA in terms of section 147(3)(a)(ii) of the LRA, he obviously misconstrued his powers under the LRA and erroneously donned himself with the jurisdiction to determine the dispute. On this ground alone, the award stands to be reviewed and set aside.
Nehawu obo Kgekwane v Department of Development Planning and Local Government (2015) 36 ILJ 1247 (LAC); [2015] 6 BLLR 575 (LAC) at para 18
Although the LRA does not set out guidelines that inform a referral in terms of either s 147(2) and (3) of the LRA, our courts have over time developed principles that may be of some guidance. The first is that forum shopping is looked upon with disdain. Thus in the context of referrals in terms of s 147(2) and (3) of the LRA, the incorrect referral must be bona fide and not an exercise in forum shopping for a sympathetic or preferred forum. The second principle is that where a dispute is referred to the CCMA, the matter may not proceed before the CCMA once it is discovered that the parties are parties to a bargaining council or fall within the registered scope of a bargaining council, until the options set out in s 147(2) and (3) have been exercised by the CCMA. The third principle is that once this is ascertained, it is then for the CCMA or its delegate (and not the commissioner hearing the matter when this was ascertained) to determine whether to refer the matter to the bargaining council or to appoint a commissioner to determine the dispute or if one has already been appointed, to confirm his or her appointment. (Emphasis added)
[10] In Qibe v Joy Global Africa (Pty) Ltd, In re: Joy Global Africa (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others [2015] 4 BLLR 415 (LAC); (2015) 36 ILJ 1283 (LAC) at paras 8 9 confirming the dictum in Kgekwane,[8] the LAC reiterated that it is only in instances where the CCMA elects to appoint a Commissioner to arbitrate the dispute or confirm the appointment of the one already appointed in terms of subsection (2) and (3) of section 147 of the LRA that the Commissioner will be properly clothed with the jurisdiction to determine the dispute. Unfortunately, the converse is true in this matter.
[11] In SA Rugby Players Association & others v SA Rugby (Pty) Ltd & Others (2008) 29 ILJ 2218 (LAC) at para 41 the LAC established the principle that the inquiry into the jurisdiction of the CCMA entails the determination whether objectively speaking, the facts which would give the CCMA jurisdiction to entertain the dispute existed. If such facts did not exist, the CCMA would have no jurisdiction irrespective of its finding to the contrary.[See: HC Heat Exchangers (Pty) Ltd v Araujo and Others [2007] ZALC 72; [2020] 3 BLLR 280 (LC) at paras 35 to 39; Ukweza Holdings (Pty) Ltd v Nyondo and Others [2020] 6 BLLR 544 (LAC); (2020) 41 ILJ 1354 (LAC) at para 12.]
JR79/19
Colgate-Palmolive (Pty) Ltd v Rala-Rala and Others (JR79/19) [2021] ZALCJHB 35 (20 January 2021)
CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; [2009] (2) SA 204 (CC) at paras 62 65.
the approach to be followed by the commissioners
Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do.A commissioner must, as the LRA requires, deal with the substantial merits of the dispute. This can only be done by ascertaining the real dispute between the parties. In deciding what the real dispute between the parties is, a commissioner is not necessarily bound by what the legal representatives say the dispute is. The labels that parties attach to a dispute cannot change its underlying nature. A commissioner is required to take all the facts into consideration including the description of the nature of the dispute, the outcome requested by the union and the evidence presented during the arbitration. What must be borne in mind is that there is no provision for pleadings in the arbitration process which helps to define disputes in civil litigation. Indeed, the material that a commissioner will have prior to a hearing will consist of standard forms which record the nature of the dispute and the desired outcome. The informal nature of the arbitration process permits a commissioner to determine what the real dispute between the parties is on a consideration of all the facts. The dispute between the parties may only emerge once all the evidence is in. (Footnotes omitted and emphasis added)
JR273/2017
Assmang (Pty) Limited t/a Mine v Commission for Conciliation, Mediation and Arbitration and Others (JR273/2017) [2020] ZALCJHB 247 (30 November 2020)
13.1 The first is that Lottering is dominus litis. He seeks to enforce his rights to fair labour practices by relying on the provisions of section 186(2) of the LRA. His claim as was before the Commissioner, and as further persisted with in these proceedings, relates to alleged unfairness, and he has disavowed any reliance on his contract of employment, and thus the provisions of section 77(3) of the BCEA.13.2 As was stated in Makambi v MEC, Department of Education, Eastern Cape Province[Makambi v Member of Executive of Council, The Department of Education, Eastern Cape Province [2008] ZASCA 61; [2008] 4 All SA 57 (SCA); 2008 (5) SA 449 (SCA); [2008] 8 BLLR 711 (SCA); (2008) 29 ILJ 2129 (SCA) at para 30], whether a Court (in this case, the CCMA), has jurisdiction to consider a particular claim depends upon the nature of the rights that the claimant seeks to enforce, and whether the claim is good or bad in law is immaterial to the jurisdictional enquiry.13.3 The second difficulty is that it is not for the Applicant to elect for an employee as to what his/her cause of action should be, and where that dispute ought to be determined. If an employee such as Lottering alleges an unfair labour practice within the meaning of section 186(2) of the LRA, with the substance of his claim being that he was deprived of the SDPW allowance for unfair reasons, it is of no consequence that the allowance emanated from a contract of employment, collective agreement or mere practice. This is so in that in Apollo Tyres South Africa (Pty) Ltd v CCMA & others[(2013) 34 ILJ 1120 (LAC)], it was held that a benefit for the purposes of s 186(2)(a) is not limited to an entitlement that arises ex contractu or ex lege.
JR2881/17
TASWU obo Legodi and Others v van Kerken NO and Others (JR2881/17) [2020] ZALCJHB 162 (20 August 2020)
[3] The matter was set down for conciliation on 9 November 2017. The next day, the panellist issued the ruling referred to above. The panellist made reference to NUM v Hernic Exporation (Pty) Ltd (2003) 24 ILJ 787 (LAC) where the Labour appeal Court held that the fact that a union does not furnish the names of dismissed employees does not affect the jurisdiction either of the CCMA or this court. The court went on to note that it was best practice for the union to give the names of the employees concerned, so that the employer knows which employees are engaged in the proceedings. The court confirmed that in terms of section 200 (1) a trade union was entitled to refer dismissal dispute relating to the dismissal of its members to the CCMA for conciliation and to this court for adjudication, without citing its dismissed members as co-applicants.
[7] Insofar as the panellists decision that the bargaining council ought properly to refuse to entertain a matter in circumstances where the identities of the individuals who had an interest in the matter remain undisclosed, I fail to appreciate on what basis it can be said that the decision is incorrect. The panellist was faced with a poorly drafted referral that contained no information concerning the nature of the dispute, and, as she observed, the identity of the individual employees affected by it. The process that served before the panellist was one of conciliation. I fail to appreciate how it can be expected of any panellist to conciliate the dispute where no indication whatsoever is given of the numbers of employees involved, their identities, the basis on which substantive and procedural fairness is alleged, and the like. Indeed, the union appears to have been content to have the facts emerge during the arbitration process. This is fundamentally subversive of the process of conciliation.
J735/2020
Thandeka Safaris (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (J735/2020) [2020] ZALCJHB 152 (18 August 2020)
[5] In any event, this court is not empowered to intervene in incomplete arbitration hearings unless the court is satisfied that it is just and equitable to review a decision or ruling before the issue in dispute has been finally determined. The insertion of s 158 (1A) into the LRA by way of the 2014 amendments sought to avoid the piecemeal review of arbitration proceedings in favour of a single review application to be brought at the conclusion of the hearing and after the delivery of an award. In the present instance, the second respondent issued a comprehensive 27-page ruling in which he dismissed the application for recusal. On the face of it, the ruling is considered not one that suggests that intervention by this court at this point is either just or equitable. The scope of intervention in incomplete arbitration proceedings must necessarily be informed by s 138 (1) of the LRA which requires commissioners to conduct arbitration in a manner they deem appropriate, in order to determine the dispute fairly and quickly, dealing with the substantial merits of the dispute with the minimum of legal formalities.
JR2847/17
AWA Water Management (Pty) Ltd v Radoccia and Others (JR2847/17) [2020] ZALCJHB 204 (11 August 2020)
[1] The learned Savage AJA,[1] in County Fair Foods (Epping), a division of Astral Operations Ltd v Food and Allied Workers' Union and Others[[2018] 8 BLLR 756 (LAC).] reminded us about the role of an arbitrator in resolving disputes, as that Court held thus,As was stated in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others in determining whether a dismissal is fair or not does the decision-maker is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. Deciding this does not require the decision-maker to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.[3]
[18] In CUSA v Tao Ying Metal Industries &Others,[2009 (1) BCLR 1 (CC)] the Constitutional Court held that arbitrators are given a measure of latitude in deciding disputes before them, in a manner that they deem fit. However, they need to resolve the real dispute and deal with the substance thereof between the parties.[21]
[19] The same Court, in Baloyi v Member of the Executive Committee for Health and Social Development, Limpopo and Others 2016 (4) BCLR 443 (CC), emphased the need for arbitrators to clarify as to which charges an employee is guilty or not guilty of if he was dismissed for more than one offence. It concluded that,[19] The applicant complains that the arbitrator found him guilty of misconduct of which he had wrongly been charged. He was charged with initiating the process for the repair of the incinerators and his defence was that he did so to comply with a lawful instruction from Dr Wasilota. It is indeed not clear from the arbitrators award which charges he found to have been proved and which not. One would have expected the arbitrator to make this clear, as this would have facilitated an understanding of his reasons for the award. [22]
[20] The LAC, reaffirming what it said in County Fair Foods (Pty) Ltd v CCMA [1999] 11 BLLR 1117 (LAC), in Bidserv Industrial Products ( Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA73/15)[23] held thus ,The fact that the Commissioner glossed over and did not determine the primary question whether Ramapuputla was dishonest, as correctly found by the Court a quo, is problematic. That determination was central to the question whether the reason given for Ramapuputlas dismissal was fair. In County Fair Foods (Pty) Ltd v CCMA, this Court sounded a warning that failure to deal with an important facet may, depending on the circumstances of the case, provide evidence that the Commissioner did not apply his/her mind to that facet.[24]
JR288/18
Lyttleton Dolomite (Pty) Ltd v NUM obo Lekgau and Others (JR288/18) [2020] ZALCJHB 132 (11 August 2020)
[35] It is apparent from the record of the arbitration proceedings that the commissioner was acutely aware that she was faced with an inexperienced representative together with hearsay evidence being adduced; she therefore had a duty in terms of the CCMA Guidelines, to lend a helping hand but fails to do so and appeared to adopt a passive attitude in this regard.
[38] It is my opinion that in this matter the timing of the Commissioners ruling on the admissibility of the hearsay evidence is of vital importance. If one has regard to the LAC decision in Exxaro and looking at the principle of fairness, the fact that the Commissioner failed to comment on or proceed to explain the weight attributed to hearsay evidence in terms of the LEAA at the time when she became aware of the fact that the evidence was hearsay evidence is crucial and has a direct impact on her duty to ensure fairness in the proceedings.
[39] Furthermore and as reflected in the CCMA Guidelines the purpose of the helping hand principle is to prevent a procedural defect by ensuring that there is a full ventilation of the dispute and a fair trial of the issues. The Commissioner had a duty firstly to explain to the parties the significance of the provisions of section 3 of the LEAA, or of the alternative, fair standard and procedure that was going to be adopted by the Commissioner to consider the admission of the evidence and secondly, to timeously rule on the admission of the hearsay evidence. As stated by the Court in Exxaro to only make a ruling on admissibility of such evidence only at the award stage speaks to the crucial aspect of fairness. The fact that the decision of the hearsay evidence occurred only at decision-making time, is significant as this prevented there being a full ventilation of the dispute and a fair trial of the issues.[34]
DA 7/2019
Mngadi v Jenkin NO and Others (DA 7/2019) [2020] ZALAC 42 (24 November 2020)
SABC Ltd v CCMA and others [2010] 3 BLLR 251 (LAC)
(where it was found that the date that an unfair labour practice arises does not coincide with its commencement date when the nature of the unfair labour practice is such that it is ongoing in such case, the dispute can be referred at any time), it is submitted that there is no need for a condonation application.In the event that this is incorrect, condonation is applied for in the alternative in respect of the failure to pay the correct standing-in allowance
[8]...The CCMA has no capacity or power to conciliate without the necessary jurisdiction. There can be no conciliation, once a jurisdictional point arises until jurisdiction has been determined. Unless the necessary jurisdictional facts are found to be present, the process of conciliation cannot be engaged and thus jurisdiction must necessarily be established at the outset of the process.[3] The determination of the jurisdictional issue of necessity must precede the conciliation process.[Shell SA Energy (Pty) Ltd v National Bargaining Council for Chemical Industry & others (2013) 34 ILJ 1490 (LAC) para 13]
SA Broadcast Corporation Ltd v Commission for Conciliation, Mediation and Arbitration & others (2010) 31 ILJ 592 (LAC).
This court held that since the applicants were continually being paid at a lower rate, the discrimination was not a single act but a continuing or repetitive act that recurred on each pay date. Applying that reasoning to the present case, the appellants referral of his dispute in relation to the alleged ongoing and repetitive discrimination was not out of time, at least in relation to the payment of his salaries (discrete repetitive acts) in the six months prior to his referral. Condonation was not required
JA30/2019
Feni v Commission for Conciliation, Mediation and Arbitration and Others (JA30/2019) [2020] ZALAC 24; (2020) 41 ILJ 1899 (LAC); [2020] 10 BLLR 1001 (LAC) (28 May 2020)
[12] The doctrine of res judicata encompasses a matter that has already been decided; that is the same dispute had been finally adjudicated upon in proceedings between the same parties and therefore cannot be raised again. According to Voet 42.1.1 this exceptio was available in the common law, if it was shown that the judgment in the earlier case was given in a dispute between the same parties for the same relief on the same ground or on the same cause. See National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) at 239 as well as the cases cited therein.
[13] The law was further explicated by Scott JA in Smith v Porritt and others 2008 (6) SA 303 SCA at para 10 the ambit of the exceptio rei judicata has over the years been extended by the relaxation in appropriate cases of the common-law requirements that the relief claimed and the cause of action be the same (eadem res and eadem petendi causa) in both the case in question and the earlier judgment. Where the circumstances justify the relaxation of these requirements those that remain are that the parties must be the same (idem actor) and that the same issue (eadem quaestio) must arise. Broadly stated, the latter involves an inquiry whether an issue of fact or law was an essential element of the judgment on which reliance is placed. Where the plea of res judicata is raised in the absence of a commonality of cause of action and relief claimed it has become commonplace to adopt the terminology of English law and to speak of issue estoppel. But, as was stressed by Botha JA in Kommissaris van Binnelandse Inkomste v Absa Bank BPK 1995 (1) SA 653 (A) at 669D, 670J-671B, this is not to be construed as implying an abandonment of the principles of the common law in favour of those of English law; the defence remains one of res judicata. The recognition of the defence in such cases will however require careful scrutiny. Each case will depend on its own facts and any extension of the defence will be on a case by case basis.Applying this test to the facts of this dispute, it is difficult to see how a decision on jurisdiction constitutes res judicata. It is not a determination of the legal justification of the core dispute of dismissal between the parties.
[14] Aligned, however, to the concept of res judicata is that of lis pendens. As Nugent AJA said in Nestl (South Africa) Pty Ltd v Mars Inc 2001 (4) SA 542 (SCA) at para 16:The defence of lis alibi pendens shares features in common with the defence of res judicata because they have a common underlying principle, which is that there should be finality in litigation. Once a suit has been commenced before a tribunal that is competent to adjudicate upon it, the suit must generally be brought to its conclusion before the tribunal and should not be replicated (lis alibi pendens). By the same token the suit will not be permitted to revive once it has been brought to its proper conclusion (res judicata). The same suit between the same parties, should be brought once and finally.[15] Wallis J explicated upon the doctrine in Caesarstone Sdocot-Yam v World of Marble and Granite 2000 CC and others 2013 (6) SA 499 (SCA) at para 2 where he said that the policy underlying the doctrine of lis pendens is that there should be a limit to the extent to which the same issue is ligated between the same parties and that it is desirable that there be finality in litigation. The courts are also concerned to avoid a situation where different courts pronounce on the same issue with the risk they may reach different conclusions.[16] Herbstein and Van Winsen The Civil Practice of the High Courts in South Africa (5ed) at 606 note that a plea of lis pendens involves an intervention by the court to stay one or other of the proceedings because it is prima facie vexatious to bring two actions in respect of the same subject matter. The learned authors point out that the court has a discretion in the matter which is sourced in the policy that to allow two separate proceedings to continue in respect of the same dispute may well border on the authorisation of a vexatious practice.
Association of Mine Workers and Construction Union and others v Ngululu Bulk Carriers (Pty) Ltd (in liquidation) and others [2020] ZACC 8.
Constitutional Court said in the AMCU case, it is not reasons for a dismissal which must be referred to conciliation but the unfairness of the dismissal (para 21), because the Constitutional Court considered that there were two separate dismissals, the approach adopted by the Court is distinguishable from the present dispute
If that argument succeeded the CCMA would be engaged either with a conciliation process or possibly an arbitration thereafter at the same time as the fairness of the same dismissal was to be heard before the Labour Court or possibly on appeal by the Labour Appeal Court.[26] This set of consequences would be entirely incongruent with the policy of the LRA, being expedition of the resolution of a single act of dismissal. This conclusion, namely that the doctrine of lis pendens would be appropriately invoked in such a case, is strengthened by the lack of prejudice to a party in the position of appellant. In terms of s158 (2) of the LRA, if at any stage after a dispute had been referred to the Labour Court, it becomes apparent that the dispute ought to have been referred to arbitration, the court may- (a) stay the proceedings and refer the dispute to arbitration; or (b) with the consent of the parties if it is expedient to do so continue with the proceedings with the court sitting as an arbitrator in which case the court may only make any order that a commissioner or arbitrator would have been entitled to make.
The court could then decide to sit as an arbitrator in respect of this component of the case.
CA2/2019
Adams v National Bargaining Council for the Freight and Logistics Industry and Others (CA2/2019) [2020] ZALAC 10; [2020] 9 BLLR 867 (LAC); (2020) 41 ILJ 2051 (LAC) (18 May 2020)
[15] In the result, I am of the view that ABC Telesales is sound authority for the appellants proposition that the purpose of the signature rule was achieved by the ratification of the aggrieved persons agent signing the referral. The fact that it was an attorney who signed it is a non-material fact.Conclusions[16] Although it is highly desirable for good order that rules be complied with on their own terms, the function of the rule is the paramount consideration and, where it can be safely found that the purpose of the rule is achieved, it is highly undesirable to approach the matter in a literalist way. Mechanical thinking is anathema to our law: cessante ratione legis cessat et ipsa lex. The objectives of the Labour Relations Act 61 of 1995 inform the context of interpretation and its penumbra of pragmatism. Our law is not an Ass.[17] Accordingly, the ruling that there was no jurisdiction ought not to have been made.
JR1643/16
Merafong City Local Municipality v Poo and Others (JR1643/16) [2019] ZALCJHB 343 (29 November 2019)
Carephone v Marcus NO and Others JA 52/98 ZALAC 11 (1 September 1998).
[54] In a court of law the granting of an application for postponement is not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion. What is normally required is a reasonable explanation for the need to postpone and the capability of an appropriate costs order to nullify the opposing partys prejudice or potential prejudice. Interference on appeal in a matter involving the lower courts exercise of a discretion will follow only if it is concluded that the discretion was not judicially exercised (Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398-399).[55] There are at least three reasons why the approach to applications for postponements in arbitration proceedings under the auspices of the Commission under the LRA is not necessarily on a par with that in courts of law. The first is that arbitration proceedings must be structured to deal with a dispute fairly and quickly (s 138(1)). Secondly, it must be done with the minimum of legal formalities (s 138(1)). And thirdly, the possibility of making costs orders to counter prejudice in good faith postponement applications is severely restricted (s 138(10)).
Psychological Society of South Africa v Qwelane and Others 2017 (8) BCLR 1039 (CC).
[30] Postponements are not merely for the taking. They have to be properly motivated and substantiated. And when considering an application for a postponement a court has to exercise its discretion whether to grant the application. It is a discretion in the true or narrow sense meaning that, so long as it is judicially exercised, another court cannot substitute its decision simply because it disagrees. The decision to postpone is primarily one for the first instance court to make.[31] In exercising its discretion, a court will consider whether the application has been timeously made, whether the explanation for the postponement is full and satisfactory, whether there is prejudice to any of the parties and whether the application is opposed. All these factors will be weighed to determine whether it is in the interests of justice to grant the postponement. And, importantly, this Court has added to the mix. It has said that what is in the interests of justice is determined not only by what is in the interests of the immediate parties, but also by what is in the broader public interest.
[28] Clearly, the arbitrators decision not to postpone the proceedings is rationally connected with the material before him and therefore justifiable. He did not exercise his discretion capriciously or upon any wrong principles, but he did so judicially. Thus, he did not commit any gross irregularity as alleged by the applicant. There is, therefore no basis for this Court to review his decision not to grant postponement.
JR1190/16
Ramabulana v CCMA and Others (JR1190/16) [2019] ZALCJHB 232 (3 September 2019)
Consol Ltd v Kanjee & others (2008) 29 ILJ 1474 (LC) at paragraph 17
[15]...An opening address serves to characterise the nature of the dispute, identify the issues in dispute, and the basis of the defence to the claim (see Consol Ltd v Kanjee & others (2008) 29 ILJ 1474 (LC) at paragraph 17). The only procedural issue raised by the applicants representative in his opening address and in response to an invitation by the arbitrator to articulate the basis on which procedural fairness was challenged, was correctly categorised by the arbitrator as one of substance. There is accordingly no merit in this ground for review.
JR2007/17
Department of Agriculture & Rural Development: Limpopo Provincial Government v Phooko N.O and Others (JR2007/17) [2019] ZALCJHB 190 (2 August 2019)
[6] The process used in the arbitration proceedings simply does not allow for a due and proper arbitration of the dispute. The Commissioner based her findings on the written submissions of the parties[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between the parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions
Arends and others v SALGBC and others [2015] 1 BLLR 23 (LAC).
[11] The decision of the representatives of the parties to limit themselves to providing the arbitrator with a verbal account of the background relevant to the conclusion of the collective agreement, as the basis for the parties arguing the matter without leading oral testimony, was ill-advised[15] The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of 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 himThe stated case must set out agreed facts, not assumptions[5] The approach taken by the first respondent is neither prudent nor correct. The LAC in Arends supra advised thus:[16] Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the Court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case.
JR899/14
Mothole Bus Service CC v Commission for Conciliation, Mediation and Arbitration and Others (JR899/14) [2019] ZALCJHB 171 (12 July 2019)
Foschini Group (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2002) 23 ILJ 1048 (LC) at para 17 If the explanation given for a party's non-appearance at the arbitration proceedings does not demonstrate that the absent party was wholly blameless, the force of that explanation must still be balanced against the force of the case G which that party seeks to present in support of its case. The weight of a solid bona fide case will usually make up for a thin explanation for default.
[22] The Commissioner then states that the condonation ruling does not finally dispose of the dispute between the parties and that there exists no reason for the rescission of the ruling in question.[23] It is clear that the Commissioner had scant, if any regard to the requirements for analysing and deciding a rescission application. He should have properly considered the merits, and explanation for default averred by the Applicant.[14][24] The Commissioners failure to properly adjudicate the rescission application is clearly unreasonable given the test set out in Sidumo
JR875/1
Serakala v National Bargaining Council for the Freight, Logitsics Industry ("NBCRFLI") and Others (JR875/15) [2019] ZALCJHB 96 (14 May 2019)
[50] The Commissioner did not end there. On page 16 of the transcribed record, the Commissioner simply stopped the applicant from continuing with his cross examination of Ms Frazer. On page 17 of the record, the applicant asks Ms Frazer, what I believe was a pertinent question, namely when did the third respondent become aware that he had spectacles and in response thereto the Commissioner says as follows: Alright sorry no more questions[51] Had the Commissioner allowed the applicant, who was unrepresented and a lay person, an opportunity to ask all questions he intended, the applicant may very well have raised the fact that Dr Rahmans report was presented at the appeal hearing and asked Ms Frazer why the report was not considered by the chairperson. However, his cross examination of Ms Frazer was stopped abruptly by the Commissioner. It is my finding therefore that the Commissioner did not give the applicant a full opportunity to have his say in respect of the dispute and prevented a fair trial of the issues, rendering his award reviewable.[52] When consideration is had to all the above circumstances, it stands to reason that the decision reached by the Commissioner was one that a reasonable decision-maker could not reach and thus falls to be set aside on review.
JS740/18
National Union of Metal Workers of SA and Another v BMW (South Africa) (Pty) Ltd (JS740/18) [2019] ZALCJHB 146; (2019) 40 ILJ 1818 (LC) (19 February 2019)
Reasonable time
[46] It is thus evident from the general scheme of section 191(5) of LRA that either of the two events: the issue of a certificate of non-resolution by a Commissioner of the CCMA or a bargaining council or the expiry of 30 days from the date on which the CCMA or bargaining council received the referral and the dispute remains unresolved, entitles an employee to request arbitration or adjudication. Section 191 of the LRA is, however, silent, on the time period within which the referral to arbitration is to be made from the date of the happening of either of the two events referred to in subsection (5) of the LRA. Since section 191 of the LRA does not prescribe the specific time period within which an unfair dismissal or unfair labour practice is to be referred to arbitration in terms of subsection (5)(a) of the LRA, the dismissed employee or the employee alleging an unfair labour practice must refer such dispute to arbitration within a reasonable period of time.[49] The appellant referred his unfair dismissal dispute to the bargaining council for conciliation on or about 10 February 2003. In terms of section 191(5) of the LRA, he acquired the right to refer his unfair dismissal dispute to arbitration on 12 March 2003 upon the expiry of the 30-day period contemplated in the subsection. The appellant, however, elected not to refer the dispute to arbitration at that stage, but rather to await the outcome of the conciliation process (which ensued on 3 April 2003) and the issue of a certificate of outcome following thereupon. In the event, the certificate of non-resolution was only issued on 15 April 2004, a full year after the conciliation took place, following which the appellant referred the matter to arbitration on 24 June 2004, being more than 13 months after he acquired the right to refer the dispute to arbitration (on 12 March 2003), upon expiry of the 30-day period contemplated in the subsection. Thus, in so far as he chose to await the outcome of the conciliation process and the issue of a certificate of outcome by the bargaining council, before referring the dispute to arbitration, the appellant was obliged to seek condonation from the arbitrator for his failure to refer the dispute to arbitration within 90 days of the date of expiry of 30 days from the date that the bargaining council had received the referral.
[12] It is not apparent from the judgment when the 30-day period after the date of the referral of the dispute to the CCMA expired (and in particular, whether that period expired before or after the issuing of the certificate). But it is of some significance that the court was concerned only with the date of the certificate, and that it specifically regarded the issuing of the certificate as the trigger for the 90-day period. Had the court considered that the date of expiry of the 30-day period post referral was relevant, it would have said so.[13] In summary: in the case of a dispute that is required to be referred for adjudication (as opposed to arbitration), s 191 (11) requires the dispute to be referred within 90 days of the issuing of a certificate of outcome, regardless of the date of which the 30-day period immediately following the date of referral of the dispute expired. The applicants referral to this court was made within 90 days of the date of the certificate of outcome, and was thus timeously made. Condonation for a later referral is not required, and it is not necessary for me to consider the applicants submissions in this regard. The special plea accordingly stands to be dismissed.
JR2422/16
MEGAPASCAL CONTRACTING TECHNOLOGIES vs CCMA JR2422/16
Tao Ying Metal Industries Pooe N.O. and Others
The task of an Arbitrator is a demanding one. It is made more demanding by the absence of formality that characterizes the resolution of labour disputes. It is important that an arbitrator, notwithstanding the absence of formality, ensures at the outset, that the ambit of the dispute has been properly circumscribed, even if the dispute has many facets, for that defines the authority that the arbitrator has to make an award. The authority of an arbitrator is confined to resolving the dispute that has been submitted for resolution and an award that falls outside that authority will be invalid.
Sasol Mining (Pty) Ltd v Commissioner Nggeleni and Others
One of the commissioners prime functions was to ascertain the truth as to the conflicting versions before him. As I have noted, this much the commissioner appears to have appreciated. What he manifestly lacked was any sense of how to accomplish this task, or what tools were at his disposal to do so. The commissioner was obliged to, at least, make some attempt to assess the credibility of each of the witnesses and to make some observation on their demeanor. He ought to have considered the prospects of any partiality, prejudice or self interest on their part, and determined the credit to be given to the testimony of each witness by reason of its inherent probability or improbability. He ought then to have considered the possibility or improbability of each parties version.
JR2333/2015
Belo & Kies Construction (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2333/2015) [2019] ZALCJHB 2 (9 January 2019)
[9] The Applicants first witness, Ms Freislich, was the chairperson of the disciplinary enquiry and in her testimony she dealt with the issue of the employees suspension. In my view the issue regarding the employees suspension and the testimony adduced on that, was irrelevant to the issues that the arbitrator had to decide. A challenge to the fairness of the employees suspension should have been referred and dealt with as an unfair labour practice dispute.
J 3424 / 18
J & L Lining (Pty) Ltd v National Union of Metalworkers of South Africa and Others (J 3424 / 18) [2018] ZALCJHB 409; (2019) 40 ILJ 1289 (LC) (10 December 2018)
September and Others v CMI Business Enterprise CC (2018) 39 ILJ 987 (CC) at para 44
The Labour Appeal Court adopted an overly formalistic approach as it held that to answer the question whether the real dispute had been conciliated necessitates a very narrow factual enquiry which entails only looking at two aspects, namely the characterisation on the referral form and the contents of the certificate of outcome. The Labour Appeal Court failed to take into account the purpose and context of the Labour Relations Act and the dispute-resolution mechanisms for which it provides. By relying only on the referral form and the certificate of outcome the Labour Appeal Court essentially held that no evidence from the conciliation proceedings may be led as evidence in subsequent proceedings.The Court concluded as follows:[13]It would therefore be wrong to adopt the Labour Appeal Courts approach, which essentially precludes the courts from referring to evidence outside of the certificate of outcome and referral form, to determine the nature of the dispute conciliated. The general rule is that the referral form and certificate of outcome constitute prima facie evidence of the nature of the dispute conciliated. However, if it is alleged that the nature of the dispute is in fact different from that reflected on such documents, the parties may adduce evidence as to the nature of the dispute.
JR 625/17
Department of Correctional Services v The GPSSBC and Others (JR 625/17) [2018] ZALCJHB 415 (29 November 2018)
[10] For all the above reasons, I come to the conclusion that the award is a nullity and ought to be reviewed.
Arends and others v SALGBC and others [2015] 1 BLLR 23 (LAC)
[11] The decision of the representatives of the parties to limit themselves to providing the arbitrator with a verbal account of the background relevant to the conclusion of the collective agreement, as the basis for the parties arguing the matter without leading oral testimony, was ill-advised[15] The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of 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 himThe stated case must set out agreed facts, not assumptions
[16] Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the Court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case.
JR1110/15
Antonio v Commission for Conciliation, Mediation and Arbitration and Others (JR1110/15) [2018] ZALCJHB 351 (30 October 2018)
Astral Operations Ltd v Parry (2008) 29 ILJ 2668 (LAC).
s 115 of the Labour Relations Act[3] (LRA) provides that the CCMA has jurisdiction in the whole Republic and, obviously, has no jurisdiction outside the Republic: It seems to me that in a case involving the CCMA the court could also ask whether the employer's undertaking in which the employees work is carried on, is inside or outside the Republic. If it was carried on inside, the CCMA would then have jurisdiction and, where it was carried on outside, the CCMA would not have jurisdiction.
Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC).
[34] What is clear from both Astral and Genrec Mei is that the undertaking where the employee was employed (which was situated beyond the territorial jurisdiction of the respective fora in each of those cases), has to be separate and divorced from the employer's undertaking which is located within the jurisdictional territory of the relevant forum.[35] In Astral, the employer's Malawian subsidiary, where the employee worked, was separate and divorced from the employer's South African undertaking. The Malawian undertaking was an incorporated concern with a separate personality. It was an independent company. In Genrec Mei, the court also emphasised the separateness and independence of the employer's undertaking in Durban, from its undertaking on the oil rig, where the employee was employed.[36] The nub of the issue in this case, is not about where appellant was employed, because it is common cause that he was employed in the first respondent's London office, but whether the London office was an undertaking of the first respondent which was separate and divorced from its undertaking in the Republic of South Africa. In my view it certainly was not.
[11] In this case, the applicant was employed in the Angolan branch office of the third respondents European holding company. A document contained in the papers which has been translated by a sworn translator reflects that YOKOGAWA EUROPE BRANCHES B.V. SUCURSAL DE ANGOLA was registered as a company and taxpayer by the Angolan Department of Justice under registration number 1260/2006. The said legal entity is separate and divorced from the third respondent. Reporting lines to Van den Berg fall to be understood as between employees of the Angolan branch office of the global company. I am also of the view that given the fact that there was an express term in the applicants employment contract, that Angolan law would apply to the employment relationship between him and the holding company, this must be taken into consideration and a court should not simply deal with the locality of the undertaking test without reference to the intention of the parties in the employment contract.
JR 1043/15
Ideal Security Services CC v CCMA and Others (JR 1043/15) [2018] ZALCJHB 375 (10 October 2018)
[12] Clearly, that requires an action on the part of the employer to terminate the contract. It does not require any interpretation, as it was in this case.
The South African Post Office Ltd v Mampuele [2010] 10 BLLR 1052 (LAC)
Therein, the court made it very clear that there must be an overt statement by the employer terminating an employment contract.
J2680/16
Sasol Chemical Operations (Pty) Ltd v CCMA and Others (J2680/16) [2018] ZALCJHB 433; [2019] 1 BLLR 91 (LC); (2019) 40 ILJ 436 (LC) (29 August 2018)
Satani v Department of Education, Western Cape and Others (2016) 37 ILJ 2298 (LAC) par [17] (my underlining).
It is accepted that commissioners are not expected to merely sit back and allow the parties to present their cases and not guide them to the real issues that are to be determined. There will be instances where intervention on the part of the commissioner would be necessary, whether an adversarial or inquisitorial has been adopted. However, commissioners must guard against an intervention that is likely to suggest bias or a perception of bias in favour of a particular party to the dispute. He/she must refrain from assisting a party to the detriment of the other, cross-examining witnesses by inter alia, challenging the consistency of a witness, expressing doubt about the credibility and reliability of a witness; putting leading questions to witnesses; answering questions for witnesses; showing disrespect to the parties representatives; not allowing representatives to present their cases without undue interference; doubting the capacity of a partys chosen representative to represent a party and appearing to be an expert who knows everything and evincing a mind not open to persuasion. The list is not exhaustive.
Raswiswi v CCMA and Others (2011) 32 ILJ 2186 (LC) par [18], cited with approval in Satani.
This line of questioning directed by the commissioner continues in the same vein, with the applicant's union representative scarcely getting a word in. Apart from the fact that the applicant's representative had only asked one question before the arbitrator launched into his own line of cross- examination, it is clear that the character of his questions to the applicant was very different to the character of the questions he asked the company witnesses. The entire thrust of his questioning was not aimed at elucidating or clarifying the applicant's defence, but at challenging it. Moreover, the arbitrator's questions to the applicant did not follow naturally from an incomplete line of cross-examination initiated by the employer: the arbitrator took the initiative by directly attacking the applicant's defence, while he was still giving evidence in chief.
Innovation Maven (Pty) Ltd (2016) 37 ILJ 465 (LC) par [17].
In the present instance, in my view, and after a careful perusal of the record, the commissioners conduct was such that she overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings, but read as a whole, the transcribed record reflects that the commissioner failed to respect the roles of the parties respective representatives and assumed to herself the role of leading evidence and conducting cross-examination.
[36] The same considerations apply in this case. The Commissioner prejudged the issue and led the employee to bolster that premise, putting words in his mouth and creating a perception of bias in the sense of an adjudicator that had already formed a view on the merits. That is a further reason why the award must be set aside on appeal.
J698/15
Impala Platinum Ltd v Jonase and Others (J698/15) [2018] ZALCJHB 276 (24 August 2018)
South African Reserve Bank v Public Protector [2017] ZAGPPHC 443 (15 August 2017) paras 39-42.
a functionary may not impose a remedy that goes beyond the original complaint before her. The same goes for this appeal: The commissioner was not empowered to impose the remedy that she did. The fairness of the policy was not part of the complaint before her. And Impala Platinum was not called upon to defend the fairness of the policy as applied to all pregnant employees. The appeal must succeed on that ground as well.
JR1288/12
Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v NUM obo Stigling and Others (JR1288/12) [2018] ZALCJHB 260 (15 August 2018)
African Bank v Magashima and Others [2014] ZALCJHB 298 at para 24.
rbitrator is required to determine whether the sanction imposed by the employer is fair and not to impose a sanction afresh.
the factors outlined in Sidumo[4]. Other than these factors, where an employee claims inconsistency, further factors inclusive of those outlined in Sidumo to be considered include the following:a) The circumstances surrounding the act of misconduct committed by individual employees;b) The personal circumstances of the employees, including their length of service, and the employees disciplinary records;c) The positions they occupied at the time of the commission of the misconduct, the nature of the duties they performed and hierarchy within the organisation;d) The severity of the misconduct or its impact on the employer and its operations;e) The consequences of the misconduct vis--vis the sustainability of the employment relationship between the employer and the employee, and also as between co-employees;f) Whether the employees have shown genuine contrition. Genuine contrition implies that an employee owned up to the misconduct as soon as it took place, and showed remorse from that moment. This should be distinguished from the charade of showing remorse at disciplinary proceedings, purely for the purposes of pleading in mitigation of sanction.
JA14/2018
Masoga and Another v Pick n Pay Retailers (Pty) Ltd and Others (JA14/2018) [2019] ZALAC 59; [2019] 12 BLLR 1311 (LAC); (2019) 40 ILJ 2707 (LAC) (12 September 2019)
[36] In an arbitration, a commissioner is to deal with the substantial merits of the dispute and this is only feasible if the real nature of the dispute is ascertained. Although the commissioner or arbitrator in deciding what the true nature of the dispute is, is not bound by the description given to the dispute in the referral form, or by the legal representatives, he may not ignore those descriptions. It is also important to bear in mind that the labels attached to a dispute cannot change the true nature of the dispute. And it is established that in determining the true nature of the dispute the commissioner or arbitrator is required to take all facts into consideration.[4]
JR1758/13
Robor Tube (Pty) Ltd v MEIBC and Others (JR1758/13) [2018] ZALCJHB 229; (2018) 39 ILJ 2332 (LC) (21 June 2018)
Secondly, there is the compelling analogy with referrals to the CCMA that are withdrawn, and the right of a party to make a fresh referral. The prevailing authority is clearly to the effect that the withdrawal of a matter is not a bar to the reinstitution of proceedings.
Ncaphayi v Commisison for Conciliation, Mediation and Arbitration & others (2011) 32 ILJ 402 (LC)
[27] The second reason relates to the effect of a withdrawal of a referral to conciliation. The LRA does not deal with the withdrawal of matters referred to the CCM a and neither do the rules of the CCM a will stop rule 13 of the Labour Court rules merely deals with the procedure to be followed if a party wishes to withdraw proceedings. It is instructive to note how the High Court has considered the effect of a withdrawal of the matter. It is been held that there was taller the matter by a party is akin to an order of absolution from the instance. Ordinarily, an order of absolution from the instance does not prevent a party from reinstituted proceedings and the defendant absolved in the first proceedings will not be able to raise the exception rei judicatae if sued again on the same course of action.[28] If the withdrawal of a matter in the High Court at a stage when it is ripe for hearing does not necessarily prevent the institution of fresh proceedings, it would be anomalous if the withdrawal of a matter at the conciliation stage of dispute resolution under the LRA when no decision on the merits of the dispute is even possible precluded a party from making a fresh referral. Obviously, if the withdrawal under consideration as part and parcel of the final settlement of the dispute the situation would be quite different. However, in this case, the withdrawal was at the applicants own instance and not an intrinsic part of a settlement agreement
SAMWU & others v Commission for Conciliation Mediation and Arbitration (2014) 35 ILJ 2011 (LC)
approved of the approach in Ncaphayi and held that the withdrawal of a referral to the CCMA did not preclude a party from making a fresh referral, nor did it deprive the CCMA of jurisdiction to entertain the second referral.
JS370/15
JR1579/15
Dungelo v Ergo Mining (Pty) Ltd and Others (JR1579/15) [2018] ZALCJHB 166 (3 May 2018)
[26] In the face of this Commissioner Wauchope committed a fundamental error of law, which is, in my view, determinative of the matter. Commissioner Wauchope wrongly believed that by reason of the CCMAs prior decision to refuse the first respondents postponement application, he had no power to postpone the arbitration notwithstanding the changed factual situation before him, that is, the unexpected absence of the applicants representative.[27] Commissioner Waucope clearly had the authority to postpone the arbitration by virtue of these new facts. He would have been entitled to either re-visit the first respondents postponement application or to have treated the applicants statement that he was unable to proceed without his representative as a fresh postponement application.
JS641/16
Dinkelman v Fruit and Veg City Gauteng (Pty) Ltd t/a Foodlovers Market (JS641/16) [2018] ZALCJHB 141 (23 March 2018)
being common cause that the applicant was dismissed on 11February2016, I am satisfied that based on the contents of the referral form, and notwithstanding the fact that the certificate of outcome merely reflects an alleged unfair labour practice dispute having been referred, this Court has the requisite jurisdiction to adjudicate the alleged automatically unfair dismissal dispute as claimed in the applicants statement of claim.
J1007/15
Mlaudzi v Metro South Towing CC (J1007/15) [2017] ZALCJHB 37 (8 February 2017)
no need for section 158(1)(c) order; as this amounts to duplication and delay in enforcing the arbitration award; Both employer and employee are required to comply with the terms of an arbitration award.
SATAWU obo Phakathi v Ghekko Services SA (Pty) Ltd and Others (2011) 32 ILJ 1728 (LC). (Ghekko Services)
that section158(1)(c) applications are not a prerequisite for contempt proceedings.
(JR1146/15
Senator International Logistics (Pty) Ltd v Raphela NO and Others (JR1146/15) [2018] ZALCJHB 68 (22 February 2018)
its non-attendance was based on abona fidebut mistaken belief that documentation submitted to the CCMA by e-mail would be taken into account by the commissioner and that it would be sufficient to have the employees referral dismissed.
MM Steel Construction CC v Steel Engineering and Allied Workers Union of SA and Others (1994) 1 5 ILJ 1310 (LAC) at 1311 I 132a
commissioner did not consider the second aspect of the test. On the prospect of success, he simply stated that he was satisfied with the award issued. There is no indication that he considered the applicants submissions on its prospects of success in the arbitration. As such, the commissioner failed to apply the test for good cause
Northern Province Local Government Association v CCMA and Other [2001] 5 BLLR 539 (LC) at 545
An application for the rescission of a default judgment must show good cause and prove that he at no time denounced his defense, and that he has a serious intention of proceeding with the case. In order to show good cause an applicant must give a reasonable explanation for his default, his explanation must be madebona fideand he must show that he has abona fidedefense to the plaintiffs claims.
JR1043/16
SAMWU obo Members v Protrans (Pty) Ltd (JR1043/16) [2017] ZALCJHB 218 (30 May 2017)
Mr Nguaza on behalf of the 1strespondent made the submission that the applicants in their referral alleged that the reason for the termination is that they participated in an unprotected strike and relying on the provisions of Section 191(1)(5)(b)(iii) he contended that such allegations are to be determined or dealt with by the Labour Court. Indeed that is correct however as the authorities had made it very clear that it is the duty of any administrator to determine the jurisdiction and it appears to me that what the Arbitrator did in this matter was simply to accept the allegation of the employees that they were dismissed for participating in an unprotected strike and actually ignored what appeared to be the true reason of the dismissal, being misconduct.
DA10/16
Jorgensen v I Kat Computing (Pty) Ltd and Others (DA10/16) [2017] ZALAC 70; [2018] 3 BLLR 254 (LAC); (2018) 39 ILJ 785 (LAC) (21 November 2017)
[23] The compensation awarded to the appellant overlooked the fact that the appellant was on a fixed term contract that had five months to run at the time of his dismissal. There was no cause to award compensation more than his actual loss of income. The award of compensation was not one that a reasonable commissioner would have made and to that extent the compensation should be reduced to an amount of R92 075 being 5 (five) times the difference between what the applicant earned and what he would have earned while employed by the respondent.
JA53/16
Grindrod Logistics (Pty) Ltd v SATAWU obo Kgwele and Others (JA53/16) [2017] ZALAC 60; (2018) 39 ILJ 144 (LAC) (18 October 2017)
Satani v Department of Education, Western Cape and Others (2016) 37 ILJ 2298 (LAC) at 2311 para 36.
failure to object by a party or its legal representative cannot render an unfair process or conduct fair or acceptable. The test for bias is whether a reasonable, objective and informed person would, on the correct facts, reasonably apprehend bias.[4] Mere apprehensiveness on the part of a litigant or even a strongly and honestly held anxiety would not be enough. The question to be answered is: what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude.[5]
Bernert V ABSA Bank Ltd 2011 (3) SA 92 (CC) at 114 para 75.
It is not in the interests of justice to permit a litigant, where that litigant has knowledge of all the facts upon which recusal is sought, to wait until an adverse judgment before raising the issue of recusal. Litigation must be brought to finality as speedily as possible. It is undesirable to cause parties to litigation to live with the uncertainty that, after the outcome of the case is known, there is a possibility that litigation may be commenced afresh, because of a late application for recusal which could and should have been brought earlier. To do otherwise would undermine the administration of justice.At 102 para 35 the Court held:[35] The presumption of impartiality and the double requirement of reasonableness underscore the formidable nature of the burden resting upon the litigant who alleges bias or its apprehension. The idea is not to permit a disgruntled litigant to successfully complain of bias simply because the judicial officer has ruled against him or her. Nor should litigants be encouraged to believe that, by seeking the disqualification of a judicial officer, they will have their case heard by another judicial officer who is likely to decide the case in their favour
JA16/16
South African Medical Association obo Pietz v Department of Health - Gauteng and Others (JA16/16) [2017] ZALAC 25; [2017] 9 BLLR 923 (LAC); (2017) 38 ILJ 2297 (LAC) (4 May 2017)
Kemp t/a Centralmed v Rawlins,
[22] I do not think that the provisions of s 193(1)(c) of the Act give the Labour Court or an arbitrator the kind of power which would enable it or him to grant or refuse an order of compensation on identical facts as it or he sees fit. In my view the ultimate question that the Labour Court or an arbitrator has to answer in order to determine whether compensation should or should not be granted is: which one of the two options would better meet the requirements of fairness having regard to all the circumstances of this case? If the court or arbitrator answers that the requirements of fairness, when regard is had to all of the circumstances, will be better met by denying the employee compensation, no order of payment of compensation should be made. If the court or arbitrator answers that the requirements of fairness will be better met by awarding the employee compensation, then compensation should be awarded. When that question is answered, the interests of both the employer and the employee must be taken into account together with all the relevant factors. In my view, where the court or an arbitrator decides the issue of whether or not to award the employee compensation, it does not exercise a true discretion or a narrow discretion. The determination of that question or issue requires the passing of a moral or value judgment. It is decided or determined on the basis of the conceptions of fairness because the court or arbitrator has to look at all the circumstances and say to itself or himself or herself as the case may be: What would be more in accordance with justice and fairness in this case? Would it be to award compensation or would it be to refuse to award compensation? It or he or she would then have to make the decision in accordance with its, his or her sense of which of the two options would better serve the requirements of justice and fairness.The Court proceeded as follows at 2696-2697 para 55:'The importance of the distinction between a discretion that is exercised in terms of s 193(1)(c) and a discretion that is exercised in terms of s 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of s 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether the decision maker adopted an incorrect approach. When dealing with a discretion however such as provided in s 193(1)(c), the court must consider if the arbitrator or the Labour Court properly took into account all the factors and circumstances in coming to its decision and that the decision arrived at is justified. In essence therefore, a review of a discretion exercised in terms of s 193(1)(c) is essentially no different to an appeal because the reviewing court will be required to consider all the facts and circumstances which the arbitrator or the Labour Court had before it and then decide based on a proper evaluation of those facts and circumstances whether or not the decision was judicially a correct one. (My emphasis)
Kemp t/a Centralmed v Rawlins (supra)
76.1 Insofar as the dismissal is procedurally unfair, the nature and extent of the deviation from the procedural requirements; the less the employer's deviation from what was procedurally required, the greater the chances are that the court or arbitrator may justifiably refuse to award compensation; obviously, the more serious the employer's deviation from what was procedurally required, the stronger the case is for the awarding of compensation.76.2 Insofar as the reason for dismissal is misconduct, whether the employee was guilty or innocent of the misconduct; if he was guilty, whether such misconduct was in the circumstances of the case not sufficient to constitute a fair reason for the dismissal.76.3 The consequences to the parties if compensation is awarded and the consequences to the parties if compensation is not awarded.76.4 The need for the courts, generally speaking, to provide a remedy where a wrong has been committed against a party to litigation but also the need to acknowledge that there are cases where no remedy should be provided despite a wrong having been committed even though these should not be frequent.
(b) The commissioners decision not to award compensation is reviewed and set aside;
JR667/201
Ziqubu v Commission for Conciliation, Mediation and Arbitration and Others (JR667/2012) [2017] ZALCJHB 505 (25 October 2017)
The commissioner found that the employees dismissal was substantively unfair as there were no fair reasons for dismissal but relied on same unproven charges to refuse reinstatement. The facts of the case did not trigger section 193(a-d) and the commissioner thus did not have a discretion not to reinstate. [43] In conclusion, the commissioners reasons as contained in the award for the refusal to reinstate the Applicant is thus a decision a reasonable commissioner could not have arrived at.
Equity Aviation Services Pty Ltd v Commission for Conciliation, Mediation and Arbitration and Others 2009 (2) BCLR 111 (CC) at para 36.
The ordinary meaning of the word reinstate is to put the employee back into the same job or position he or she occupied before the dismissal, on the same terms and conditions. Reinstatement is the primary statutory remedy in unfair dismissal disputes. It is aimed at placing an employee in the position he or she would have been but for the unfair dismissal. It safeguards workers employment by restoring the employment contract. Differently put, if the employees are reinstated they resume employment on the same terms and conditions that prevailed at the time of their dismissal
National Health and Allied Workers Union (NEHAWU) v University of Cape Town and Others 2003 (2) BCLR 154 (CC).
18] It is axiomatic from section 193 of the LRA and the Equity Aviation and NEHAWU cases supra that reinstatement is the primary remedy in unfair dismissal disputes and is aimed to secure employment for an employee who suffered the brunt of unfair dismissal.
Maepe v Commission for Conciliation, Mediation and Arbitration and Another [2008] ZALAC 2; (2008) 8 BLLR 723 (LAC) at par.13
Section 193(2) of the Act obliges-it uses the word must- the Labour Court or an arbitrator must order the employer to reinstate or re-employ the employee whose dismissal he had found to be unfair for lack of a fair reason or whose dismissal he had found to be automatically unfair, unless one or more of the situations set out in Section 193(2)(a)-(d) applies(14) The situation envisaged in par (b) is where the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. It is possible that in so far as the giving of false evidence under oath may have occurred in the disciplinary inquiry before the dismissal, it could be said that it is one of the circumstances surrounding the dismissal, particularly where it was one of the factors that were taken into account in making the decision to dismiss(16) What I have just said in the preceding paragraph means that if a case falls under one or other of the situations listed in section 19392) (a)-(d), it is not competent for the Labour Court or an arbitrator to order reinstatement or re-employment. This is because section 193(2) makes provision as to when reinstatement or re-employment must be ordered and when it must not be ordered. In effect, it says that reinstatement or re-employment must be ordered in all cases except those listed in section 193(2)(a)-(d)
Sibeko v Xstata Coal South Africa and Others (JR2189/13) [2016] ZALCJHB 90; (2016) 37 ILJ 1230 (LC) (3 February 2016) at para 12.
Dealing first with section 193(2), it is clear from the Maepe judgment and more particularly paragraph (14) thereof, about when is permissible for a commissioner not to award reinstatement because the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. As appears from that paragraph, the circumstances which can be taken into account are those which prevailed at the time of the dismissal and not thereafter.
David Themba v Mintroad Sawmills (Pty) Ltd [2015] 2 BLLR 174 (LC) at para 23.
When it comes to retrospectivity of reinstatement, this is however, a completely different issues. Reinstatement is not necessarily coupled with retrospectivity and is not a sine qua non of it. Retrospectivity of reinstatement is a separate discretion that must be exercised by the arbitrator or the judge when deciding to award reinstatement. Retrospectivity in simple terms relates to what is commonly known as back pay and constitutes what the arbitrator or judge expects an employer to pay the employee for the time the employee has been languishing without remuneration as a result of the employees unfair dismissal
JR06/16
Road Traffic Management Corporation v Commission for Conciliation, Mediation and Arbitration and Others (JR06/16) [2017] ZALCJHB 386; (2018) 39 ILJ 887 (LC) (19 October 2017)
"29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation."
Fouldien and others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) at para 16.
The right to compensation is a contingent right which rests on the finding regarding the substantive and procedural fairness of a dismissal. It is a discretionary remedy, although it is hedged by limitations on the quantum which can be ordered. It is, of course, a discretion which must be exercised judicially.'
Dr DC Kemp t/a Centralmed v Rawlins [2009] 11 BLLR 1027 (LAC)
The importance if the distinction between a discretion that is exercised in terms of section 193(1)(c) and a discretion that is exercised in terms of section 194(1) is how the reviewing court will consider the matter. When the discretion that is challenged is a discretion such as the one exercised in terms of section 194(1) the test that the court, called upon to interfere with the discretion, will apply is to evaluate whether the decision maker acted capriciously, or upon the wrong principle, or with bias, or whether or not the discretion exercised was based on substantial reasons or whether or not the decision maker adopted an incorrect approach.
MEC for Environmental Affairs and Development Planning v Clairisons CC 2013 (6) SA 235 (SCA) paras 18 and 20.
When the law entrusts a functionary with a discretion it means just that: the law gives recognition to the evaluation made by the functionary to whom the discretion is entrusted, and it is not open to a court to second-guess his evaluation. The role of a court is no more than to ensure that the decision-maker has performed the function with which he was entrusted.. The law remains, as we see it, that when a functionary is entrusted with a discretion, the weight to be attached to particular factors, or how a particular factor affects the eventual determination of the issue, is a matter for the functionary to decide, and as he acts in good faith (and reasonably and rationally) a court of law cannot interfere.
29] The remaining case is nothing but a suggestion that compensation of ten months is too much. Whether the amount of compensation awarded is unacceptable to the Applicant is irrelevant as the true enquiry is whether the arbitrator exercised her discretion judicially.[30] It is trite that the courts should not too readily interfere with the quantum of compensation where the quantum was determined by the exercising of a discretion. However, in cases where the discretion was not exercised judicially or where it was exercised capriciously or biased or based on the wrong principle or approach or not for a substantial reason, the court may interfere.[31] In the application before this Court the Applicant did not make a single averment to the effect that the arbitrator acted capriciously, or upon the wrong principle, or with bias, or that the arbitrator adopted an incorrect approach. All that is evident from the application before me is the Applicants unhappiness that it was ordered to pay ten months remuneration as compensation.
JR541/14
Old Mutual Life Assurance Company South Africa Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR541/14) [2017] ZALCJHB 381 (19 October 2017)
[78] On procedural fairness, having found that the commissioners finding in this regard was beyond reproach, I am of the view that a compensation of three months salary is just and equitable, having considered that Dr Mathoma was dismissed for serious charges (gross negligence and dishonesty) and the extent of the procedural defect (mitigation and perception of biasness)
JR2134/15
Department of Home Affairs v General Public Service Sectoral Bargaining Council and Others (JR2134/15) [2017] ZALCJHB 400; (2018) 39 ILJ 248 (LC) (17 October 2017)
Hillside Aluminium (Pty) Ltd v Mathuse & others (2016) 37 ILJ 2082 (LC), in which Prinsloo J held that the acceptance of documents as constituting evidence at arbitration is an extraordinary scenario and requires an explicit and clear agreement between the parties,[7] and that the reliance on documents as constituting evidence in the absence of such an agreement constitutes a reviewable irregularity.[8] In the present matter, the commissioner went wrong in precisely this manner.
SA Social Security Agency v National Education Health & Allied Workers Union on behalf of Punzi & Others (2015) 36 ILJ 2345 (LC), in which Rabkin-Naicker J found that she could not comprehend how a dispute which hinges on the fairness of the conduct of an employer can be decided (in the absence of a stated case) without parties giving oral evidence.[9] In setting aside the award, the court went on to find:
[8] In the absence of such a stated case, oral evidence should be led on the material facts in dispute at arbitrations in terms of the LRA. Commissioners and arbitrators should not condone an agreement between parties that no oral evidence be led unless such a stated case has been agreed, and on which they may draw legal conclusions. Although parties may regard submitting documents and argument as a fast way of resolving a dispute on the day of arbitration, it in fact renders the award issued susceptible to review. In the result, the principle of speedy resolution of disputes is ultimately sacrificed.
Arends & others v SA Local Government Bargaining Council & others (2015) 36 ILJ 1200 (LAC)
[15] 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.[16] Rule 20(1) of the Rules for the Conduct of Proceedings before the CCMA (which might be followed in proceedings before bargaining councils) allows for a pre-arbitration conference at which the parties must attempt to reach consensus inter alia on the agreed facts, the issues to be decided, the precise relief claimed and the discovery and status of documentary evidence. The parties in this case did not engage in a proper pre-arbitration process with the aim of agreeing a stated case. Although the CCMA Rules do not include provisions equivalent to the provisions of rule 33(1) and (2) of the Rules of the High Court, parties who prefer to proceed by way of a stated case at the CCMA or before a bargaining council, in my view, should follow their prescriptions. These rules provide that the parties to any dispute may, after the institution of proceedings, agree upon a written statement of facts in the form of a special case for the adjudication of the court. Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered paragraphs. The parties must annex to the statement copies of documents necessary to enable the court to decide upon such questions.[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. An arbitrator faced with a request to determine a special case where the facts are inadequately stated should decline to accede to the request. In this instance, the arbitrator did not do that.
PSA v Minister of Correctional Service [2017] 4 BLLR 371 (LAC), in which Musi JA quoted the entire passage from Arends set out above for the sake of emphasis and to focus arbitrators attention on best practice.[10] In the result, the LAC upheld this courts decision to set aside the award which determined an interpretation dispute based on a stated case, which did not contain an agreed factual matrix. As Musi JA put it, the commissioner could not apply his mind properly to the issue before him without a factual substratum, and [h]e should have refused to deal with the matter without an agreed set of facts.[11]
[27] In the present matter, the commissioner also went wrong in precisely the manner contemplated in SA Social Security Agency, Arends and PSA. In circumstances where the parties decided to proceed without oral evidence, the commissioner ought to have ensured that a stated case was concluded, which ought to have set out, inter alia, the agreed facts and incorporated documents on an agreed basis. Heads of argument based on the stated case could then have been submitted. As found in Arends, by failing to follow this process -
[19] [t]he enquiry was undertaken in the wrong manner with the result that the appellants were denied their right to have their case fully and fairly determined. The principal cause of that denial or failure was the inept manner in which the case was put before the arbitrator. Be that as it may, the undertaking of the enquiry in the wrong or in an unfair manner by an arbitrator is an irregularity in the conduct of the proceedings reviewable in terms of s 145 of the LRA as suffused by the constitutional right to administrative action that is lawful and procedurally fair.
[28] ...the commissioner did not place himself in a position to fully and fairly resolve the dispute, and thereby deprived the department of its right to procedurally fair administrative action (a patent gross irregularity), which gives rise to a review irrespective of the merits of the outcome of the award.
J492/201
Msagala v Transnet Soc Ltd and Others (J492/2017) [2017] ZALCJHB 370; (2018) 39 ILJ 259 (LC); [2018] 2 BLLR 193 (LC) (9 October 2017)
[7] What is this formulation suggests is that an agreement concluded in terms of s188A is one that abandons any workplace disciplinary process in favour of an arbitration hearing which would ordinarily have been conducted post dismissal by the employer. An arbitrator appointed in terms of the section must consider the evidence presented and decide what sanction, if any, is to be issued against the employee.Of some significance use the fact that the arbitrator is subject provisions of s 138, and he or she enjoys all the powers conferred on commissioners in those provisions of s 142 referred to in s 188A (7). The arbitrator is not bound by the employers disciplinary code and procedure, nor obliged to give effect to it either in terms of the prescribed process all any recommended or prescribed penalties. The arbitrator must decide on a balance of probabilities without the misconduct alleged was committed, and if so, exercise a value judgement as to an appropriate sanction. That judgement is reviewable in terms of s 145. All of these provisions indicate that the arbitrator does not sit as the employers agent or representative he or she is expected to discharge a statutory function by the exercise of statutory powers subject to the statutory criteria of fairness.
JR1870/14
Wade Walker (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1870/14) [2017] ZALCJHB 296; (2017) 38 ILJ 2842 (LC) (8 August 2017)
This being the test for reasonableness set inSidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28ILJ2405 (CC) at para 110.
he acted unreasonably in refusing the postponement. In relation to the latter, in circumstances where the matter was heard little more than a month after the employees dismissal, where the employee agreed to a postponement, and where, in the circumstances, the balance of prejudice overwhelmingly favoured the grant of a postponement, a reasonable commissioner would not have refused the postponement
JR1052/13
Passenger Rail Agency of South Africa (PRASA) v Commission for Conciliation Mediation and Arbitration and Others (JR1052/13) [2017] ZALCJHB 287 (4 August 2017)
The fact that the commuter did not give evidence at the internal disciplinary hearing was entirely irrelevant. It is certainly not a basis on which to reject the evidence of all of the applicants witnesses, or to call their credibility into question. On this basis alone, the arbitrators award stands to be reviewed and set aside.
JR1365/1
Msibi and Others v CCMA and Others (JR1365/13) [2017] ZALCJHB 245 (22 June 2017)
[2] On review, Wilken AJ found that the evidence before the Commissioner indicated that the applicants had in fact been dismissed because the company was of the view that the applicants had absconded. He found that the Commissioner had obviously failed to investigate these facts and deal with the real issue before him, namely a dismissal for misconduct and whether it had been a fair dismissal.
SABC v CCMA and Others (2002) 8 BLLR 693 (LAC).
was heldthat desertion necessarily entails the employees intention no longer to return to work and that the employer would have to establish this intention in a fair process. I would addthat mere absence and unexplained absence is not conclusive proof of an unequivocal intention not to return. Employees must be called upon to show cause why the employer should not treat their absence as an intention not to return to work. Up to the point when the intention not to return is established the absent employees are simply absent without leave.
J949/17
South African Airways (Soc) Ltd v South African Cabin Crew Association and Others (J949/17) [2017] ZALCJHB 158 (10 May 2017)
Vodacom (Pty) Ltd v Communication Workers Union (2010) 31 ILJ 2060 (LAC) at para 11.
In this particular case,itiscommon cause that there wasacollective agreement which applied. Accordingly whatever certificate may have been produced and may have been shown to the employer, the certificate cannot override the clearly stated limitation upon theright to strikeascontained in s65(1)(a). In short,acertificate can in no way trump the clear provisions of the limitation. For this reason, the courtaquo erred in its approach to the law. It should not have held that the certificate issued in terms of s 64 provided an unqualified and unlimited 'passport' to the employees to strike, no matterthe provisions of s65(1)(a),asIhave outlined them.
Strautmann v Silver Meadows Trading 99 (Pty) Ltd t/a Mugg & Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at para 9
When a commissioner completes form 7.12 and categorizes the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked "CCMA arbitration", "Labour Court" "None" or "Strike/Lockout" amount to a ruling on which of those courses of action must be pursued by a referring party.
Bombardier Transportation (Pty) Ltd v Mtiya NO and Others (2010) 31 ILJ 2065 (LC) at para 14. See also Mbele and Others v Chainpack (Pty) Ltd and Others (2016) 37 ILJ 2107 (LC) at paras 31 32; Cook4life CC v Commission for Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 2018 (LC) at paras 8 9.
a certificate of outcome is no more than a document issued by a commissioner stating that, on a particular date, a dispute referred to the CCMA for conciliation remained unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMA's jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued.
Helderberg International Importers (Pty) Ltd v McGahey NO and Others (2015) 36 ILJ 1586 (LAC) at para 11.
I align myself with the conclusions reached in the Bombardier judgment, as have a number of other decisions in this court, that a certificate of outcome has no legal significance beyond a statement that the dispute referred to conciliation has been conciliated and was resolved or remained unresolved, as the case may be.
JR822/15, JR769/15, JR974/15
Impala Platinum Refineries Limited v National Union of Mineworkers obo Retselisitsoe and Others (JR822/15, JR769/15, JR974/15) [2017] ZALCJHB 150; [2017] 10 BLLR 1032 (LC) (10 May 2017)
[29] Contrary to the first respondents contention, in my view it would have been unreasonable in the circumstances to expect the applicant to make a formal application for a postponement as contemplated in Rule 23 of the CCMA Rules, for the applicant did not consider it necessary to do so. This Court has held that mere non-compliance with the rule relating to postponements is not adequate reason for declining an application for a postponement.
NF Die Casting (Pty) Ltd v Metal and Engineering Bargaining Council and Others [2002] BLLR 560 (LC) at [23] and [25]
Insurance andBanking Staff Association and Others v SA Mutual Life Assurance Society(2000) 21 ILJ 386 (LC)
[32] It follows that the commissioner should have considered, inter alia:32.1 whether it was in the interest of justice and fairness that the postponement be granted or refused;32.2 what prejudice was likely to be suffered by either party should the postponement be granted or refused;32.3 whether such prejudice could be cured by an appropriate costs order; and32.4 whether the application was bona fine or a mere tactical manoeuvre.
Petzer v Independent Broadcasting Authority (2000) 5 LLD 409 (LC) at 410, Massstores (Pty) Ltd t/a Builders Warehouse v CCMA and Others [2006] 6 BLLR 577 (LC) Keerom Casa Hotel v Heinrichs and Another [1999] 1 BLLR 27 (LC)
Equity Aviation Services Ltd v Commission for Conciliation, Mediation and Arbitration and Others
The legislative structure for the resolution of unfair dismissal disputes is clear and coherently crafted. The LRA allows for any of the three remedies set out in s 193(1) to be granted to an unfairly dismissed employee. Reinstatement or re-employment remains the legislatively preferred remedy so as to restore the employee to the employment relationship. They safeguard the employee's security of employment. Either of the two remedies may be granted except in the specified circumstances set out in s 193(2) in which case compensation in terms of s 193(1)(c)may be ordered, the amount of which depends on the nature of the dismissal.
SA Revenue Service v Commission for Conciliation, Mediation and Arbitration and Others
The correct approach to adopt when the dismissal has been found to be unfair, is first to consider the provisions of s 193(1) and then s 193(2) to determine which of the three remedies reinstatement, re-employment or compensation may be granted. This is buttressed by these remarks by Zondo J[62]:Once the Labour Court or an arbitrator has found a dismissal unfair, it or he is obliged to consider which one of the remedies listed in s 193(1) is appropriate, having regard to the meaning of s 193(2). Considering both the provisions of s 193(1) and s 193(2) is important because one cannot adopt the attitude that dismissal is unfair, therefore, reinstatement must be ordered. The Labour Court or an arbitrator should carefully consider the options of remedies in s 193(1) as well as the effect of the provisions of s 193(2) before deciding on an appropriate remedy. A failure to have regard to the provisions of s 193(1) and (2) may lead to the court or arbitrator granting an award of reinstatement in a case in which that remedy is precluded by s 193(2).
[88] ...reinstatement is the primary remedy for a substantively unfair dismissal, and must follow a finding of unfair dismissal, unless it can be shown by the employer or be apparent from the evidence that one of the special circumstances in Section 193(2) exist.
Boxer Superstores (Pty) Ltd v Zuma and Others
Reinstatement is in effect, the default position.
[89] ...Section 193(2)(b) employment relationship intolerability, and Section 193(2)(c) reasonable practicability.
Mediterranean Textile Mills
at the conclusion of each case it remains the responsibility of the court or the arbitrator to determine whether or not, on the evidentiary material properly presented and in the light of theEquity Aviationprinciple, it can be said that the reinstatement order is justified. In other words, even in a situation such as the present, where no specific evidence was canvassed or submissions made during the trial on the issue of the non-reinstatable conditions, the court or the arbitrator is not only entitled but, in my view, is obliged to take into account any factor which in the opinion of the court or the arbitrator is relevant in the determination of whether or not such conditions exist.
Xstrata
An employer wishing to avoid reinstatement must satisfy the arbitrator that one of the exceptions to reinstatement applies, in this case to show that it would not be practicable. The employer should lead evidence concerning relief in anticipation of a finding that a dismissal might be ruled unfair.
Eskom Holdings Ltd v Fipaza and Others
The enquiry that determines the issue of whether or not reinstatement should be ordered has as its focal point the underlying notion of fairness between both the employer and the employee which 'ought to be assessed objectively on the facts of each case bearing in mind that the core value of the LRA is security of employment'
[90] ...what could constitute reasonably practicable as contemplated by Section 193(2)(c)
The object of s 193(2)(c)of the LRA is to exceptionally permit the employer relief when it is not practically feasible to reinstate; for instance, where the employee's job no longer exists, or the employer is facing liquidation, relocation or the like. The term 'not reasonably practicable' in s 193(2)(c)does not equate with 'practical', as the arbitrator assumed. It refers to the concept of feasibility. Something is not feasible if it is beyond possibility. The employer must show that the possibilities of its situation make reinstatement inappropriate. Reinstatement must be shown not to be reasonably possible in the sense that it may be potentially futile. An employee's length of service, the delay in the arbitration and alleged untested shortcomings in capacity are not normally relevant to the question of practicability. ... If the exceptions to the remedy of reinstatement do not apply, the Labour Court and arbitrators only have a discretion with regard to the extent to which reinstatement should be made retrospective.
[90] ...the employee had not worked for the employer for a considerable period of time as a relevant factor in coming to the conclusion that reinstatement was not reasonably practicable.
Republican Press (Pty) Ltd v CEPPWAWU and Others[70]
... While the Act requires an order for reinstatement or re-employment generally to be made a court or an arbitrator may decline to make such an order where it is "not reasonably practicable" for the employer to take the worker back in employment. Whether that will be so will naturally depend on the particular circumstances, but in many cases the impracticability of resuming the relationship of employment will increase with the passage of time
Eskom Holdings
JR755/14
PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others (JR755/14) [2017] ZALCJHB 410 (6 April 2017)
[37]Therefore, in terms ofSidumo,what the second respondent had to do was to determine if the third respondent as employer in dismissing the individual applicant acted fairly, and in doing so had to consider the totality of circumstances with reference to all the factors referred to above, as established by the factual matrix before the second respondent as a whole.
Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and Others (2008) 29 ILJ 964 (LAC) at para 94.
In terms of the Sidumo judgment, the commissioner must (a) take into account the totality of circumstances (para 78);(b) consider the importance of the rule that had been breached (para 78);(c) consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal (para 78);(d) consider ''the harm caused by the employee's conduct (para 78);(e) consider ''whether additional training and instruction may result in the employee not repeating the misconduct;(f) consider ''the effect of dismissal on the employee (para 78);(g) consider the employee's service record.The Constitutional Court emphasized that this is not an exhaustive list. The commissioner would also have to consider the Code of Good Practice: Dismissal and the relevant provisions of any applicable statute including the Act.
Vodacom (Pty) Ltd v Byrne NO and Others (2012) 33 ILJ 2705 (LC) at para 9.
the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction
Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I.
The commissioner is required to come to an independent decision as to whether the employer'sdecision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner.
Theewaterskloof Municipality v SA Local Government Bargaining Council (Western Cape Division) and Others (2010) 31 ILJ 2475 (LC) at para 19.
Various components must be placed in the scales: an objective analysis of the particular facts of the case; adequate regard to the applicable statutory and policy framework; and adequate regard to the pertinent jurisprudence as developed by the courts. Only then can a value judgment, properly so called as a comparative balancing of competing factors, be made by the commissioner, producing as an end result an impartial answer to the central question whether or not the dismissal was fair. Reaching a value judgment in relation to competing factors will in many cases be fairly straightforward but in others it may be helpful to conduct the comparison process with reference to a common question, being how the factor relates to the relevant features of the employer's operational requirements. A proper assessment of those requirements underlies the determination of what is fair and at the same time provides an objective framework for a value to be placed on one factor and another.
Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189 (LAC) at para 8. See also Pack 'n Stack v Khawula NO and Others (2016) 37 ILJ 2807 (LAC) at paras 19 20.
Although a commissioner is required to give brief reasons for his or her award in a dismissal dispute, he or she can be expected to include in his or her brief reasons those matters or factors which he or she took into account which are of great significance to or which are critical to one or other of the issues he or she is called upon to decide. While it is reasonable to expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal significance or relevance to the issues at hand, his or her omission in his or her reasons of a matter of great significance or relevance to one or more of such issues can give rise to an inference that he or she did not take such matter or factor into account.
JR1676/14
L A Crushers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1676/14) [2017] ZALCJHB 80 (8 March 2017)
An arbitrator has no powers to determine the sanction afresh.
His duty is to determine whether the sanction imposed by the employer is a fair one or not. In doing so he applies his own sense of fairness and need not defer to the employer. An arbitrator who interferes with the sanction of dismissal in the circumstances where there is no basis to conclude that the sanction is unfair commits a reviewable irregularity and does not act in accordance with the Labour Relations Act 66 of 1995. His award is bound to be unreasonable and reviewable in accordance with the Sidumo test.
Quest Flexible Staffing Solutions (Pty) Ltd v Abram Legoabe [2014] ZALAC 55; [2015] 2 BLLR 105 (LAC).
In Sidumo, the Constitutional Court held that a Commissioner is not empowered to establish afresh what the appropriate sanction is, but rather to decide whether the employers decision to dismiss is fair. In making this determination, the commissioner should not defer to the decision of the employer but should weigh up all the relevant factors, including the importance of the rule that has been breached, the reason the employer imposed the sanction of dismissal, the harm caused by the employees conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of the dismissal on the employee, and the employees service record. These factors are, however not considered by the Constitutional Court to be an exhaustive list. Hence other relevant factors that may warrant consideration in assessing the fairness of a sanction include the seriousness of the misconduct, the effect of such conduct on the continuation of the employment relationship, the nature of the job and the circumstances of the infringement.. . .In addition, the appellant regarded seriously disrespectful conduct, of the nature committed by the respondent, as an offence that warranted dismissal on the first occasion. Its code of conduct provides as much. In failing or refusing to demonstrate any acceptance of wrongdoing or remorse, the respondent rendered the continued employment relationship with the appellant intolerable and undermined the applicability of corrective or progressive discipline.
JS945/2011
Marule v Fidelity Supercare Cleaning (Pty) Ltd (JS945/2011) [2016] ZALCJHB 542 (28 November 2016)
Referral for conciliation is indispensable
National Union of Metalworkers of South Africa v Intervalve (Pty) Ltd and others(2015) 36 ILJ 363 (CC),
[34] Where no certificate has been issued because there was, for example, no conciliation meeting, but a period of 30 days from the date when the council received the referral has elapsed, the statute conspicuously does not provide that the expiry of the 30 day period is sufficient proof that an attempt was made to conciliate the dispute. It is, in my view, in that situation that the Labour Court may, in terms of section 157 (4) (a), refuse to determine the dispute. This provision cannot assist in a case where the dispute was not even referred to conciliation. Section 157 (4) (a) underlines the importance the LRA places upon the need for attempts to be made to try and resolve the dispute through conciliation before resorting to other methods of resolution. [40] Referral for conciliation is indispensable. It is a precondition to the Labour Courts jurisdiction over unfair dismissal disputes.
nothing precluded the Commissioner from directing the Applicant to pay the employees wasted costs occasioned by a postponement. This would also apply in a situation where the Applicant has not made an application for a postponement timeously or is otherwise to blame with respect to procedure not being followed (but where justice nonetheless justified such a postponement in the particular circumstances of the case, asin casu). [46] The refusal of the postponement undoubtedly prejudiced the Applicant. This prejudice was so significant that it effectively deprived the Applicant of presenting its case for consideration prior to the award being made. This in itself renders the refusal of the postponement application by the Commissioner grossly irregular.
Fundi Projects and Distributors (Pty) Ltd v CCMA and Others(2006) 27 ILJ 1136 (LC) at paras 12 13.
JR2899/2012
Super Squad Labour Brokers v Sehunane N.O. and Others (JR2899/2012) [2016] ZALCJHB 399 (14 October 2016)
Ferodo (Pty) Ltd v De Ruiter (Ferodo) (1993) 14 ILJ 974 (LAC).
the factors that need to be taken into account in assessing the quantum of compensation to an employee was summarised.
JS542/16
Association of Mineworkers and Construction Union and Others v Tshipi E Entle Manganese Mining (Pty) Ltd (JS542/16) [2016] ZALCJHB 375 (20 September 2016)
The issue in that case pertained to whether there was actual service of the referral dispute on one of the alleged employer parties. The issue however in this case is whether there was substantial compliance with the provisions of section 191 (3) read together with those of Rules 5 and 6 of the CCMA Rules.As compared toIntervalvewhere there was no service of the referral at all on the one party, it is my view that in this case, there was substantial compliance.
JR1871/14
matu obo Senkhane v Emfuleni Local Municipality and Others (JR1871/14) [2016] ZALCJHB 296 (29 July 2016)
In my view, if the arbitrator had taken these factors into account, the arbitrator would, on the probabilities, have come to a different result, that is, that compensation is appropriate in the circumstances of this case. This is because these factors were materially relevant to the decision and carried a lot of weight. In these circumstances, the decision of the arbitrator not to award compensation isprima facieunreasonable.
: (i) the respondent had a legal duty to set the suspension aside once three months had elapsed and this duty was not dependent on a demand from the union; (ii) the respondent kept the employee on suspension for 17 months, knowing full well that it had no justification for same; (iii) the suspension adversely affected the dignity of the employee; and (iv) the respondent ought to be penalised to deter further comparable offending conduct.
JR1374/11
Zungo v Mantshule and Others (JR1374/11) [2016] ZALCJHB 291 (29 July 2016)
Employee informed of right to appeal dismissal but not reminded of right to refer matter to CCMA, there can be no automatic right to condonation if there has been such a failure. although item 4(3) may not constitute a substantive provision of our law, it is not entirely meaningless
JR738/16
Famous Brands Management Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR738/16) [2016] ZALCJHB 290; [2016] 12 BLLR 1217 (LC); (2016) 37 ILJ 2857 (LC) (29 July 2016)
Applicant is entitled to pursue a review on a jurisdictional point despite the existence of the recently added section 10(8) of the EEA, namely, that a person effected by an award made by a CCMA commissioner may appeal against that award to this Court. In any event, the test would be the similar.
more than one person earning below the determined income threshold (can) pursue an unfair discrimination case based on equal pay for equal work in an arbitration before the CCMA.
JR3004/2010
Mbuli and Others v Department of Home Affairs and Others (JR3004/2010) [2016] ZALCJHB 280 (21 July 2016)
refusing the postponement, the commissioner effectively revisited his decision that the matter should not be set down until a minute is signed
PT Operational Services (Pty) Ltd v Retail and Allied Workers Union obo Ngweletsana
[23] It is now settled that commissioners conducting arbitrations under the auspices of the CCMA are performing an administrative function. Although commissioners perform an administrative function such function includes adjudicative functions.[24] Pretorius explains the functus officio doctrine as follows:The functus officio doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers may, as a general rule, exercise those powers only once in relation to the same matter. This rule applies with particular force, but not only, in circumstances where the exercise of such adjudicative or decision-making powers has the effect of determining a persons legal rights or of conferring rights or benefits of a legally cognizable nature on a person. The result is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision-maker. However, this is not an absolute rule. The instrument from which the decision-maker derives his adjudicative powers may empower him to interfere with his own decision. Furthermore, it is permitted to make variations necessary to explain ambiguities or to correct errors of expression in an order, or to deal with accessory matters which were inadvertently overlooked when the order was made, or to correct costs orders made without having heard argument on costs. This list of exceptions might not be exhaustive and a court might have discretionary power to vary its orders in other cases. However, this power is exercised very sparingly, for public policy demands that the principle of finality in litigation should generally be preserved rather than eroded.The same considerations that require finality for the decisions of courts of law apply to the decisions of administrative authorities. Consequently, the functus officio doctrine applies in administrative law as it does in relation to curial proceedings. In elementary terms, the effect of the functus officio doctrine in administrative law is that an administrative agency which has finally performed all its statutory functions or duties in relation to a particular matter subject to its decision-making jurisdiction has exhausted its powers and has discharged its mandate in relation to that matter. Consequently, such an agency is without further authority as far as that matter is concerned because its duties and functions have been fully accomplished. Thus, an administrative agency which is functus officio is unable to retract or change its own earlier decision, unless it is authorised by its enabling legislation to do so.[42] Thereafter the court stated as follows:[28] In my view the Court a quo was correct in its conclusion that the functus officio doctrine applies to CCMA commissioners. They may therefore only revisit their decisions to the extent that it is permitted by the provisions of section 144 of the LRA. They may not do so whenever they like but may do so if the jurisdictional facts in section 144 are present. They may also do so when they have performed an allied function but not yet performed the power or duty bestowed on them by the legislature. (Own underlining)
commissioner could revisit his earlier rulings because they were not final in nature
JA40/2015
Temba Big Save CC v Kunyuza and Others (JA40/2015) [2016] ZALAC 36; [2016] 10 BLLR 1016 (LAC); (2016) 37 (ILJ) 2633 (LAC) (28 June 2016)
in the context of an alleged s197 transfer,there is no need to refer the new employer to conciliation - the new employer takes the place of the old employer in all materialrespects Labour Court correct in joining the employer
J1807/15, J1706/15, JA94/2015
CCMA v MBS Transport CC and Others, CCMA v Bheka Management Services (Pty) Ltd and Others (J1807/15, J1706/15, JA94/2015) [2016] ZALAC 34; [2016] 10 BLLR 999 (LAC); (2016) 37 ILJ 2793 (LAC) (28 June 2016)
interpretation of section 143 does not justify practice that registrar of the Labour Court should issue writ of execution once monetary awards are certified by the CCMAs director they are executed as if they were orders of the Magistrates Court.
[25] The legislature decided, as I will demonstrate below, to make certified CCMA awards enforceable in terms of section 143 without the need to go to the Labour Court. The procedure created by section 143 makes it easier, inexpensive, effective and accessible for a person to enforce a certified arbitration award.
[30] Therefore, section 143(1) read with section 143(3) means that when an arbitration award is certified by the Director, it may be enforced as if it were an order of the Labour Court in respect to which a writ has been issued. We must therefore not only assume that it is an order of the Labour Court but also assume that a writ has been issued in respect of that order.... The certified award is therefore the writ.
JA68/15
Solidarity obo Smook v Department of Transport Roads and Public Works (JA68/15) [2016] ZALAC 42; (2016) 37 (ILJ) 2626 (LAC); [2016] 12 BLLR 1201 (LAC) (15 June 2016)
requirement of signing award is directory and not peremptory.
CA10/15
Satani v Department of Education, Western Cape and Others (CA10/15) [2016] ZALAC 38; (2016) 37 ILJ 2298 (LAC) (13 June 2016)
not premised on whether the representative objected to the process. Test an objective one which is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the commissioner has not brought an impartial mind to bear in the adjudication of the dispute.
CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 ((CC); (2008) 29 ILJ 2461 (CC); 2009(9) BCLR 1 (CC)
64.Consistent with the objectives of the LRA, commissioners are required to deal with the substantial merits of the dispute with the minimum of legal formalities. This requires commissioners to deal with the substance of a dispute between the parties. They must cut through all the claims and counter-claims and reach for the real dispute between the parties. In order to perform this task effectively, commissioners must be allowed a significant measure of latitude in the performance of their functions. Thus the LRA permits commissioners to conduct the arbitration in a manner that the commissioner considers appropriate. But in doing so, commissioners must be guided by at least three considerations. The first is that they must resolve the real dispute between the parties. Second, they must do so expeditiously. And, in resolving the labour dispute, they must act fairly to all the parties as the LRA enjoins them to do
County Fair Foods (Pty) LTD v Theron NO and Others(2000) 21 ILJ 2649 (LC
7The basic standards of proper conduct for an arbitrator are to be found in the principles of natural justice, and in particular the obligation to afford the parties a fair and unbiased hearing. (See Baxter Administrative Law at 536). These principles have been reinforced by the constitutional imperatives regarding fair administrative action. (See Carephone (Pty) Ltd v Marcus NO (1998) 19 ILJ 1425 (LAC) at 1431I-1432A.) The core requirements of natural justice are the need to hear both sides (audi alteram partem) and the impartiality of the decision-maker (nemo iudex in sua causa). (See Baxter (supra) at 536.). 8. It follows from the above principles that a Commissioner must conduct the proceedings before him in a fair, consistent and even-handed manner. This means that he must not assist, or be seen to assist, one party to the detriment of the other. Therefore, even though a Commissioner has the power to conduct arbitration proceedings in a manner that the Commissioner considers appropriate in order to determine the dispute fairly and quickly under the provisions of section 138(1) of the Act, this does not give him the power to depart from the principles of natural justice. Thus, further, although it clearly lies within the Commissioners powers to decide whether to adopt an inquisitorial or adversarial mode of fact finding, once this decision has been made it ought to be consistently applied to both parties.
[16] Where an arbitrator adopts an inquisitorial approach, he/she does not have the right to abandon the well-established rules of natural justice. The rules of natural justice are instruments that commissioners should have in their mind when adopting an inquisitive approach. The rules of natural justice dictate that parties be afforded a fair and unbiased hearing, which consists of hearing both sides in an impartial manner. This rule finds expression in the audi alteram partem which is concerned with affording parties an opportunity to participate in the decision that will affect them. The participation of parties in proceedings not only improves the quality and rationality of the decision but also enhances the legitimacy of the decision. The audi alteram partem rule implies equal participation of parties during the proceedings. He/she must hear both sides; act impartially and consistently to both parties irrespective of the approach adopted
Innovation Maven (Pty) LTD v CCMA and Others (2016) 37 ILJ 465 (LC)
[17]In the present instance, in my view, and after a careful perusal of the record, the commissioners conduct was such that she overstepped the mark. It is difficult to convey the magnitude of the extent to which the commissioner actively engaged in the proceedings, but read as a whole, the transcribed record reflects that the commissioner failed to respect the roles of the parties respective representatives and assumed to herself the role of leading evidence and conducting cross-examination.
DA1/2015
Hospersa obo Tshambi v Department of Health, KwaZulu-Natal (DA1/2015) [2016] ZALAC 10; [2016] 7 BLLR 649 (LAC); (2016) 37 (ILJ) 1839 (LAC) (24 March 2016)
section 24.In the result, the arbitrator misdirected himself by not determining objectively the true dispute and had he done so he would have found that the true dispute was one contemplated bysection 186(2)(b)of the LRA, and, in consequence, startlingly out of time, requiring an application for condonation.
JS940/13
Mbele and Others v Chainpack (Pty) Ltd and Others (JS940/13) [2016] ZALCJHB 191; (2016) 37 ILJ 2107 (LC) (5 April 2016)
Strautmann v Silver Meadows Trading 99 CC (Pty) Ltd t/a Mugg and Bean Suncoast and Others (2009) 30 ILJ 2968 (LC) at paras 8.
A certificate of outcome requires only that the commissioner states that, as at a particular date, the dispute referred to the CCMA remains unresolved. I am aware that Form 7.12 provides for a classification of the dispute and an indication as to what further rights of recourse might be open to an applicant should the dispute remain unresolved. But any classification that is made or indication that is given as to which forum or courses of action might be open to an applicant wishing to pursue a dispute has no legal significance other than to certify that on a particular date a particular dispute referred to the CCMA for conciliation remained unresolved. Any other views expressed by a commissioner, even if cast in directory language, amount to little more than gratuitous advice. InNational Union of Metal Workers of SA and Others v Driveline Technologies (Pty) Ltd and Another(2000) 21ILJ142 (LAC), Zondo AJP (as he then was) held:A commissioner who conciliates a dispute is not called upon to adjudicate or arbitrate such dispute. He might take one or another view on certain aspects of the dispute but, for his purposes, whether the dismissal is due to operational requirements or to misconduct or incapacity, does not affect his jurisdiction. It is also not, for example, the conciliating commissioner to whom the Act gives the power to refer a dismissal dispute to the Labour Court. That right is given to the dismissed employee. (See s191 (5) (b)). If the employee, and not the conciliating commissioner, has the right to refer the dispute to the Labour Court, why then should the employee be bound by the commissioners description of the dispute? I am aware that the Driveline case concerned a retrenchment dispute referred to this court in which the referring party sought to upgrade to a dispute concerning an automatically unfair dismissal. In that sense, no matter what the nature of the dispute, it was always going to be adjudicated by this court. The present dispute, of course, concerns a dismissal dispute that the applicant contends is arbitrable but which the commissioner obviously regarded as justiciable. But I dont think that this distinction affects the principle. The principle is that a referring party is not bound by a commissioners classification of a dispute or any directive as to its destiny. If this were not so and if some legal significance were to be attached to a commissioners categorisation of a dispute in a certificate of outcome, then by electing the forum in which the dispute is to be determined, the commissioner denies the referring party the freedom to pursue her rights as she deems fit. Certificates of outcome are issued at the conclusion of the conciliation phase more often perhaps than not in circumstances where no evidence would have been led as to the nature of the dispute. The conciliating commissioner is not always well placed to make judgments, based as they would be only on the say-so of one or both parties during conciliation, as to what the true nature of the dispute might be. Even less, for the reasons stated above, should those judgments be binding on a referring party. (Emphasis supplied).
Judge Van Niekerk posited further in this judgment that when a commissioner completes Form 7.12 and categorises the dispute referred to the CCMA by ticking one of the boxes provided, the commissioner does not make a jurisdictional ruling. Nor does the ticking of any of the boxes marked CCMA arbitration, Labour Court None or Strike/Lockout amount to a ruling on which of those courses of action must be pursued by a referring party. Consistent with the principle established in theDrivelinecase, it is not for commissioners, by means of certificates of outcome or otherwise, to dictate to litigants either how they should frame the disputes that they might wish to pursue or which forum they are obliged to approach to have those disputes determined.
JR2413/11
Department of Education, North West Province v Education Labour Relations Council ('ELRC') and Others (JR2413/11) [2016] ZALCJHB 61 (23 February 2016)
It is trite law that a bargaining council or the CCMA does not have jurisdiction to conciliate or arbitrate a dispute unless a dispute has been referred timeously in terms of s 191(1)[2], failing which the party referring the dispute has obtained condonation in terms of s 191(2) of the LRA[3]. In this case no condonation was obtained.
ultravires the powers of the second respondent.
JR535/13
SATAWU obo Kgwele v Commission for Conciliation, Mediation and Arbitration and Others (JR535/13) [2016] ZALCJHB 29 (3 February 2016)
misconceived facts and failed to apply his mind to the principle governing inconsistency in disciplinary matters: allegation of inconsistency were charged with negligent and reckless driving; they were not dismissed for that but were given final written warning; the above that the employees whose cases were relied upon by the employee in his claim of inconsistency were all charged with the same offence as his, namely, negligence and reckless driving. They were found guilty but not dismissed because of various mitigating factors.
NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another [2000] 8 BLLR 869 (LAC) at para 19.
The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence.
JR1751/14
Cinqplast Plastop (Pty) Ltd v Dunn N.O. and Others (JR1751/14) [2016] ZALCJHB 78 (25 January 2016)
Bombardier Transportation (Pty) Ltd v Mtiya[2010] 8 BLLR 840(LC)
a certificate of outcome is no more than a document issued by commissioner stating that on a particular date, a dispute referred to the CCMA for conciliation remain unresolved. It does not confer jurisdiction on the CCMA to do anything that the CCMA is not empowered to do, nor does it preclude the CCMA from exercising any of its statutory powers. In short, a certificate of outcome has nothing to do with jurisdiction. If a party wishes to challenge the CCMAs jurisdiction to deal with an unfair dismissal dispute, it may do so, whether or not a certificate of outcome has been issued. Jurisdiction is not granted or afforded by a CCMA a commissioner issuing a certificate of outcome. Jurisdiction either exists as a fact or it does not.
J1074/13, JR1155/13
Letlatsa v Air Chefs (Pty) Ltd (J1074/13, JR1155/13) [2015] ZALCJHB 338 (5 October 2015)
16] In the light of the consistent approach of this court, which I have no reason to divert from, a withdrawal of a dispute at the CCMA can be withdrawn, and it is always open to a party to file a fresh referral, subject to specific defences that may be raised by respondent party, including election, a waiver, a final determination of a dispute and/or questions of prejudice. Prejudice may have to be addressed within the context of an application for condonation where so required.
South African Municipal Workers Union and Others v Zenzeleni Cleaning and Transport Services CC and Others JR852/13) [2015] ZALCJHB 47 (23 February 2015) at para [15]
Jhb City Parks did not fall outside the scope of the SALGBC (SA Local Government Bargaining Council). Further that they were covered by the collective agreement entered into by the parties and that they had not provided sufficient facts to substantiate the CCMAs jurisdiction over the matter. The actual demarcation dispute to determine the jurisdiction of the SALGBC had not yet been heard in the CCMA.
All it dit is to record that a dispute was referred and that that dispute remained unresolved. There was simply no need to challenge the validity of the certificate by way of review as a prerequisite to being able to challenge the protected nature of a strike.
CCMA and bargaining councils creatures of statute and not having any jurisdiction to dismiss claims on basis of unreasonable delay.
Rule 15 of the Rules for the Conduct of Proceedings before the CCMA that provided that the nature of the dispute had to be identified as described in the referral document or as identified by the commissioner during the conciliation process.
It went without saying that in order to attempt to conciliate the dispute it was necessary for a commissioner to determine the nature of the dispute and this would not be possible if a conciliation commissioner was precluded from enquiring into the nature of the dispute because the referral of the dispute did not accurately describe the dispute with precision. In the present matter it was abundantly clear that during the course of the conciliation the dispute that had been referred to conciliation was determined to be a dispute based on unfair discrimination that warranted referral to the Labour Court.
The court held that conciliation was a prerequisite for the Labour Court to entertain a dispute before it: if the dispute had not been conciliated, the court had no jurisdiction. Counsel for the applicants conceded that the employees had been dismissed on 21 January 2013 but the dispute that was referred to the CCMA was a dispute as to whether the employees had been unfairly dismissed on 8 January 2013.
general worker, t his duties did not fall within the jurisdiction.
constituted a fatal defect which deprived the CCMA or a bargaining council of jurisdiction to hear a dispute.
withdrew the dispute, the fact that a matter waswithdrawn did not necessarily constitute a bar to reinstituting proceedings. The withdrawalwas equivalent to a grant of absolution from the instance and it therefore remained open tothe applicant to reinstitute proceedings as the merits of the claim had not been adjudged.
Failure to arrive
Party not precluded from referring dispute for arbitration or adjudication
Commissioner erroneously finding that applicant had to be present at hearing of application for postponement by employer; Absence not willful; reasonable prospects of success
commissioner is entitled, despite a finding of guilt, to determine whether or not dismissal was an appropriate sanction in the circumstances,
certificate issued by the commissioner had no legal significance beyond stating
Arbitration; Where conciliating commissioner has made a ruling in respect of jurisdiction arbitrating commissioner cannot validly revisit the same point
2 certificates issued
First certificate remains valid
Commissioners entry on certificate
serving as guidance; cannot be determinative of the true nature of the dispute
Commissioner cannot award absolution
there was a duty on the Commissioner to establish whether Mr Dixon was entitled to act on their behalf as set out in Vidar Rubber products (Pty) Ltd v CCMA & Others (1998) 19 ILJ 1275
Held therefore that the proceedings were null and void, as he had a lack of locus standi.
the employer had not convinced the Court that it fell outside the scope of the SALGBC and the rule nisi was discharged.
referral outside 30 days
the time limit had obviously not been complied with and no valid certificate could have been issued without the granting of condonation as stated in Gianfranco Hairstylists v Howard & Others ((2000 (21) ILJ 361 (LC)
certificate of non-outcome was set aside
JR381/02
Schalk & Rina Brandt CC t/a Alfa Matte v Molotsi, M N.O.; CCMA & SACCAWU obo Mohlakoana
where the dismissal was both procedurally and substantively unfair, the Court and the arbitrator were not entitled to exercise discretion against the award of compensation and that the award of compensation was therefore not reviewable
the arbitrator had discretion to charge fees if the dismissal was procedurally unfair and held that the award was justifiable and must stand
JR328/01
Group 6 Security Services (Pty) Ltd; Masters, A v Moletsane, R N.O.;CCMA & Weller, D
if he had been dissatisfied with the attempt at conciliation and he had disputed the validity of the certificate, he ought to have taken the CCMA on review in order to have the certificate set aside
committed an irregularity by depriving the parties of an opportunity to submit closing arguments despite requests to do so
Arbitrator conferring privately with one party during proceedings; the presence of the other unless the absent party has consented to such communication in his absence
[t]here are no rational reasons to deny a right to legal representation to an employee or his or her employer in arbitrations about dismissals allegedly occasioned by operational requirements, and not where the conduct or capacity of the employee is concerned.
, the inconsistent or irrational regulation does not infringe a particular constitutional right, it does not permit the conclusion that because one section of the LRA, which is out of step with a more expanded or generous right that s140(1) is invalid in terms of our Constitution
I am not persuaded by the argument that the referral date for arbitration is the date upon which a respondent receives the referral papers together with the condonation application in the event of late referral. In my view, the Rules are clear in this regard. They do not call for any interpretation. The referral date (for arbitration) is the date when the referral papers, with or without a condonation application, are properly filed with the CCMA or the relevant bargaining council, as the case may be
certificate has both an evidentiary value, as proof of the facts contained in it, and a jurisdictional value, as its issue confers jurisdiction on the CCMA and LC to arbitrate or adjudicate the dispute
Rejected the suggestion that a certificate issued after an unreasonable period should be considered null and void
If the CCMA had no jurisdiction to arbitrate because [Pienaar] was not an employee it also had no jurisdiction to conciliate and its purported action is on (sic) no relevance once the jurisdictional point is taken before a forum that has power to decide the issue and is found to be good
the CCMAs advisory role is limited to this function and that of giving advisory awards. Held: The rationale underpinning these provisions, is that Commissioners should not give advice or make recommendations that result in them being or being seen to be partial. Held further: Even if a Commissioner is invited by a party to give advice, such an invitation should be resisted
Commissioner who puts herself in such a situation would have great difficulty in acting with honesty, integrity and impartiality. Ethically, it is therefore untenable. [28] Giving advice is also counter-productive to the objectives of conciliation. A party who is advised that she has a good case is unlikely to settle. One who is advised that he has a bad case is likely to capitulate, as happened in this case. Concluded that the Commissioner ought not have made the statements she did
Noted that the certificate described the dispute as unfair dismissal, whereas the dispute referred by the employee to the LC related to dismissal for operational requirements.
an arbitrator is not bound by the description of the dispute given by the conciliator, particularly its legal characterisation, and must ascertain the real nature of the dispute
it would have been prudent of the [employer] to attend on that day and explain its difficulties instead of trying to obtain a postponement by letter and simply not attending then (sic) the postponement was not granted. The [employer] did so at its own peril
Richards Bay Iron supra and Avroy Shlain Cosmetics (Pty) Ltd v Kok & another (1998) 19 ILJ 336 (LC)
[W]here a party brings a review application before this Court after the conciliation phase and before the arbitration phase, it is open to this Court, in appropriate circumstances, to dismiss the application on the basis that it has been prematurely brought. Whether a review application should be dismissed on such a basis depends inter alia on whether there is any realistic possibility that the facts which may be disclosed during the arbitration phase may affect the outcome of the review
case dealt with a decision to condone a late referral to the CCMA, the power for which vests with the conciliating Commissioner and cannot be reconsidered by the arbitrating commissioner
Distinguished the decision in Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others (2000) 21 ILJ 2382 (LAC)
Etschmaier v CCMA & others (1999) 20 ILJ 144 (LC
Flexware (Pty) Ltd v CCMA & others (1998) 19 ILJ 1149 (LC)
Benicon Earthworks & Mining Services (Edms) Bpk v Jacobs NO & others (1994) 15 ILJ 801 (LAC)
a decision on whether an applicant is an employee made by a conciliating Commissioner constitutes nothing more than his or her opinion and binds no-one, including the arbitrating commissioner
Once a certificate is completed and signed by the Commissioner, three distinct steps are followed: the issuing, service and filing of the certificate. The issuing of the certificate does not include its service, filing or stamping. It is the act which simply makes available the signed certificate to the party entitled to receive it [12] Whether the certificate is made available before or after it is filed in the CCMA, is immaterial. The issuing of the certificate immediately after the conciliation is efficient. To require the further steps of filing and stamping the certificate as prerequisites for issuing it could result in delay and costs for the CCMA and the parties.
failure of the Commissioner to motivate the amount of compensation she awarded to the employees was a reviewable irregularity
A postponement is not a matter of right; it is an indulgence granted by the Court to a litigant in the exercise of a judicial discretion. This is the position with the Commissioners as well. [21] The Commissioner dismissed the application for a postponement on the basis that there had been previous postponements requested by the [employee]. It was also rejected on the basis that there was no agreement to have the matter postponed. Noted further that decisions to refuse a postponement at the CCMA should be even less open to interference than other discretionary powers of the CCMA because of the busyness of the CCMA. Held that in the circumstances the refusal of the postponement was not irregular
itself merely a procedural step of the type habitually allowed by courts and which caused the employer no prejudice. Noted that no formal application for amendment had been sought but held: Given the technical nature of the error it can be condoned
Dispute referred prior to date of dismissal
there was no dispute that a dismissal had occurred
Jurisdiction
is obliged to consider jurisdiction at conciliation; Commissioner may have to hear oral evidence
While the Commissioner at conciliation makes no finding on the merits of a dispute, he or she (sic) is entitled to ensure: (1) that the dispute before him is one over which he has jurisdiction; (2) the right parties are before him. If either of the above instances are answered in the negative, he must expressly refuse to issue a certificate. The refusal to issue a certificate would imply that the party raising the dispute will not be able to pursue the next procedural step in the dispute resolution process. This is the right way to handle the matter. The purpose of conciliation, therefore, is not only an attempt to try and resolve a dispute, but where the wrong parties are before the Commissioner, the matter should be brought to an end there
Case law sited
Insurance & Banking Staff Association & others v SA Mutual Life Assurance Society (2000) 21 ILJ 386 (LC).
(1) The trial judge has a F discretion whether an application for postponement should be granted or refused. (2) That discretion must at all times be exercised judicially. (3) The trial judge must reach a decision after properly directing his or her attention to all relevant facts and principles. (4) An application for postponement must be made timeously as soon as the circumstances which might justify an application become known to the applicant. However, in cases where fundamental fairness and justice justify a postponement, the G court may in an appropriate case allow an application for postponement even though the application was not timeously made. (5) The application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purpose of obtaining an advantage to which the applicant is not legitimately entitled. (6) The court must H consider whether any prejudice caused by a postponement to the adversary of the applicant can fairly be compensated by an appropriate order of costs or any other ancillary mechanism. (7) The court must weigh the prejudice which will be caused to the respondent if the postponement is granted against the prejudice which will be caused to the applicant if it is not granted. (8) Where the applicant has not made the application I timeously or is otherwise to blame with respect to the procedure which it has followed, but justice nevertheless justifies a postponement in the particular circumstances of the case, the court in its discretion might allow the postponement but direct the applicant to pay the wasted costs of the respondent. The applicant may even be directed to pay the costs of the adversary before the applicant is allowed to proceed with the action or J defense, as the case may be.
J5507/01
JN Supermarket CC t/a Riverside Spar v Collins & Others
second stage of the arbitration would proceed to determine the appropriate relief
Exceeded powers
Procedural unfairness; not raised
reinstatement in subordinate position; no evidence canvassed
C1147/2010
SA Post Office Ltd v CCMA and Others
mean that there would be two administrative decisions in conflict with each other, and such a situation is undesirable. Thus the doctrine finds application in CCMA rulings.
Conciliation; Issuing of certificate constitutes administrative action in terms of s 1 of PAJA, Act 3 of 2000; Remains valid until set aside
Where a jurisdictional point had been raised at conciliation, the commissioner was compelled to deal with the issue and to make a ruling (which was subject to review by this court). Where a jurisdictional point was not, however, raised at conciliation, the arbitrating commissioner had to entertain this point despite the fact that a certificate had been issued.
had refused to entertain a jurisdictional point raised for the first time
Court not bound by it
After termination may approach CCMA
giving legal advice inducing party to settle; acted outside mandate
tardiness in giving instructions to its attorneys, question of prejudice to both parties.
balance the prejudice to the employee in having the hearing of his dispute delayed, against the prejudice to the employer arising from the denial of the opportunity to ventilate its case
could have been remedied by an appropriate costs order; has to be more stringent than that of the courts.
JR1959/06
Nestle (Pty) Ltd v CCMA & Others
Shoprite Checkers case on the basis that it relates to a situation where there was proper service but the defaulting party claimed not to have been aware of the hearing because the notice of set down never reached it.
[Now decided by the Constitutional Court] SCA in Rustenburg Platinum Mines Ltd v CCMA & Others [2006] 11 BLLR 1021 that commissioners do not enjoy a discretion with regard to sanction, but merely the duty of determining whether the employers sanction was fair. The court in the current matter interpreted the SCA decision to mean that the employers discretion to decide on sanction has now been extended so wide that in essence all the commissioner can do at best is to observe and note the sanction imposed by the employer. The court suggested, however, that the approach in the LAC decision of Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 is preferable. It was held in that matter that a commissioner can interfere if the sanction is so egregious that it shocks and alarms the court. It was also held in that case that the reasonable employer test does not form part of our law.
dismissal first had to be referred to conciliation before it could be referred for adjudication, the court confirmed that this was a necessary jurisdictional fact to be proved before the matter may be referred to the Labour Court under section 189A of the Act. In this regard the court referred to the decisions in NUMSA v Driveline Technologies (Pty) Ltd and Another 2000 21 ILJ 142 (LAC); Fidelity Guards Holdings (Pty) Ltd v Epstein NO and others (2000) 21 ILJ 2382 (LAC) and NUMSA v SA Five Engineering (2005) 1 BLLR 53 (LC).
not irregular for commissioner to allow legal representation for individual where employer party represented by employer organisation
once liability for mora interest was established then the creditor was entitled to it as of right and a Court had no discretion to reduce or refuse such an award. However, the Court held that the amount of the award was illiquid and the interest would, i.t.o. the Prescribed Rate of Interest Act, have had to be determined by the arbitrator. Noted that s 143(2) of the LRA provided that unless the arbitrator directed that no interest accrue on the award, the interest would be carried at the same rate as that of a judgment debt.
the employee ought to have referred his dispute to the CCMA as nothing had precluded him declaring a dispute under Chapter VIII of the LRA. Held therefore, that in part his statement of claim had not disclosed a cause of action.(NEWU v CCMA & Others ((2003) 24 ILJ 2335 (LC) & NAPTOSA & Others v Minister of Education, WC & Others (2001 (2) SA 112 (C)/(2001) 22 ILJ 889 (C))
jurisdiction; condonation; Fidelity Guards Holdings (Pty) Ltd v Epstein N.O. & Others ((2000) 21 ILJ 2382 (LAC)
jurisdiction; employee status
if a certificate of outcome was not issued, arbitration remained mandatory if 30 days had expired since the CCMA received the referral, and if the employee required this. Specific reference was made to De Vries v Lionel Murray Schwormstedt & Louw ((2001) 22 ILJ 1150 (LC); the fact that a Commissioner had declined to issue a certificate because he/she was of the view that the referring party was not an employee, was of no consequence to the arbitrator who could consider the question afresh.
a settlement agreement was reached; without a substantive application to set aside the agreement the employer was not obliged to attend a hearing and the hearing had been irregularly set down.
Commissioner considered plea of guilty at disciplinary hearing where the arbitration was de novo hearing
be based on gross salary not nett salary
Tender made at conciliation included in deciding award; conciliation confidential
when to challenge the validity
made timeously when certificate was issued and not when effects of valid decision given
Signature
Any validly authorised person mya sign, not labour consultant
Duty to explain the arbitration processes
Where offer was made to reinstate may deprive employee of compensation
For Arbitration need valid conciliation
balance of probabilities that a reasonable, objective and informed person in the position of the employer would apprehend that the commissioner had not brought an impartial mind to bear on the adjudication of the dispute, and, secondly, that the apprehension of the employer was based on reasonable grounds
Other case law sited
BTR Industries SA (Pty) Ltd & Others v Metal & Allied Workers Union & Another 1992 (3) SA 673 (A)
in our law the existence of a reasonable suspicion of bias satisfies the test; and an apprehension of a real likelihood that the decision maker will be biased is not a prerequisite for disqualification.
In the present matter the commissioner had, despite the fact that both parties were legally represented, descended into the arena in a manner that gave rise to a suspicion of bias. The commissioner had elicited evidence from witnesses which he deemed would be beneficial to the employers case and he had cross examined the applicant and his witness in such a manner that he adduced evidence beneficial to the employer. The employee had in these circumstances been deprived of a fair hearing.
JR1909/12
Dlamini v Tshwane University of Technology and Others (JR1909/12) [2019] ZALCJHB 104 (15 May 2019)
[45] Although the grounds for review under the Arbitration Act are the same as those in section 145 of the Labour Relations Act, section 33 of the Arbitration Act does not incorporate considerations of reasonableness.
Lufuno Mphaphuli and Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC).
The twin hallmarks of private arbitration are thus that it is based on consent and that it is private, i.e. a non-State process. It must accordingly be distinguished from arbitration proceedings before the Commission for Conciliation, Mediation and Arbitration (CCMA) in terms of the Labour Relations Act 66 of 1995 which are neither consensual, in that respondents do not have a choice as to whether to participate in the proceedings, nor private. Given these differences, the considerations which underlie the analysis of the review of such proceedings are not directly applicable to private arbitrations.[50][46] The Constitutional Court also held that " the values of our Constitution will not necessarily best be served by interpreting s 33(1) in a manner that enhances the power of Courts to set aside private arbitration awards. Indeed, the contrary seems to be the case.[51][47] The Constitutional Court further stated that:Courts should be respectful of the intention of the parties in relation to procedure. In so doing, they should bear in mind the purposes of private arbitration which include the fast and cost-effective resolution of disputes. If Courts are too quick to find fault with the manner in which arbitration has been conducted, and too willing to conclude that the faulty procedure is unfair or constitutes a gross irregularity within the meaning of section 33(1), the goals of private arbitration may well be defeated.[52]
Telcordia Technologies Inc v Telkom SA Ltd 2007 (3) SA 266 (SCA).
[51] Last, by agreeing to arbitration the parties limit interference by Courts to the ground of procedural irregularities set out in s 33(1) of the Act. By necessary implication they waive the right to rely on any further ground of review, common law or otherwise. If they wish to extend the grounds, they may do so by agreement but then they have to agree on an appeal panel because they cannot by agreement impose jurisdiction on the Court.[54][50] In Telcordia supra it was further held that:An arbitrator has the right to be wrong on the merits of the case, and it is a perversion of language and logic to label mistakes of this kind as a misconception of the nature of the inquiry [55]Likewise, it is a fallacy to label a wrong interpretation of a contract, a wrong perception or application of South African law, or an incorrect reliance on inadmissible evidence by the arbitrator as a transgression of the limits of his power. The power given to the arbitrator was to interpret the agreement, rightly or wrongly; to determine the applicable law, rightly or wrongly; to determine what evidence was admissible, rightly or wrongly. Errors of the kind mentioned have nothing to do with him exceeding his powers; they are errors committed within the scope of his mandate. To illustrate, an arbitrator in a normal local arbitration has to apply South African law but if he errs in his understanding or application of local law the parties have to live with it. If such an error amounted to a transgression of his powers it would mean that all errors of law are reviewable, which is absurd.[56]
Volkswagen SA (Pty) Ltd v Koorts NO and others 2011 (32) ILJ 1892 (LAC).
" legally able to give effect to the parties' requirement that a private arbitrator render an award which is "rational and justifiable, or any other review standard for that matter. Unless the error thus vitiates the award a review Court is bound to measure the product of private arbitration proceedings against the narrow grounds of review encapsulated in the Arbitration Act of 1965" [58][52] Harms JA in Telcordia supra referred to Dickenson & Brown v Fisher's Executors[59] where reference was made to the general principle that when parties select an arbitrator as the judge of fact and law, the award is final and conclusive, irrespective of how erroneous, factually or legally, the decision was unless the mistake was so gross and manifest that it could not have been made without some degree of misconduct or partiality, in which event the award would be set aside not because of the mistake, but because of misconduct.[60]
Amalgamated Clothing and Textile Workers Union of South Africa v Veldspun (Pty) Ltd 1994 (1) SA 162 (A).
" it is clear that the word [misconduct] does not extend to bona fide mistakes the arbitrator may make whether as to fact or law. It is only when a mistake is so gross or manifest that it would be evidence of misconduct or partiality that a Court might be moved to vacate an award: Dickenson & Brown v Fishers's Executors 1915 AD 166 at 174-81. It was held in Donner v Ehrlich 1928, WLD 159 at 161 that even a gross mistake, unless it establishes mala fides or partiality, would be insufficient to warrant interference[62]
Stocks Civil Engineering (Pty) Ltd v Rip NO and Another [2002] 3 BLLR 189 (LAC).
An error of law or fact may be evidence of the above in given circumstances, but may in others merely be part of the incorrect reasoning leading to an incorrect result. In short, material malfunctioning is reviewable, a wrong result per se not (unless it evidences malfunctioning). If the malfunctioning is in relation to his duties, that would be misconduct by the arbitrator as it would be a breach of the implied terms of his appointment. [96]
SACCAWU and Others v Pick 'n Pay Retailers (Pty) Ltd and Others [2012] 1 BLLR 71 (LC).
Put differently, if an arbitrator was caused by inappropriate means to reach one conclusion whereas if he had adopted appropriate means he might have reached another conclusion favourable to the applicant, then the award is reviewable.[98]
JR558/16
Naidoo v Liberty Holdings (JR558/16) [2019] ZALCJHB 56 (19 March 2019)
"May refer to arbitration"
[13] The arbitrator correctly adhered to that the decision to actually refer the matter to private arbitration (or not to refer a dispute at all), lies with the applicant. Once the appropriate route is determined to be that of private arbitration, the CCMA steps aside and the aggrieved party has the recourse of private arbitration, if he so wishes to proceed with his dispute.
the respondent imposed a restrictions or require him to pay the insurance excess amount should the vehicle be damaged in a collision. ignored the ultimatum and refused to sign the contract.
It was unreasonable for the appellant to refuse to accept the respondents offer of employment on the basis of the terms as set out in the contract of employment, was necessary for the respondents business requirements
The court held that the statutory requirements for a final award had not been met and the commissioner was accordingly not functus officio on the issue of the retrospective application of the award. When he sent the email, did not intend to issue an award as he said that he was about to issue the award.
electronic signature was without merit as there had not been compliance with s 13 of the Electronic Communications and Transactions Act 25 of 2002.
