Archive for the ‘Uncategorized’ Category

Enforcement of Arbitration Awards

Posted: November 26, 2015 in Uncategorized

The Labour Court per Phatshoane AJ on 6 November 2015 in MBS Transport CC vs Commission for Conciliation, Mediation & Others and Bheka Management Services vs Kekana & Others found that clause 19.1.8 of the CCMA’s Practice and Procedure Manual which states that, ‘. . . Once an Award is certified, it can be executed upon delivery to the Sheriff and in terms of the LRA Amendments of 2014, and as such there is no need to approach the Labour Court for a writ to be issued first’ was ultra vires and that as such the CCMA has not been statutorily assigned with the authority to issue writs.

UPDATE: The CCMA has applied for leave to appeal against the judgments

 

In Myathaza v Johannesburg Metropolitan Bus Service (Soc) Limited t/a Metrobus; Mazibuko v Concor Plant; Cellucity (Pty) Ltd v CWU obo Peters [2015] ZALAC 45, the Labour Appeal Court (LAC) confirmed a widely held view, i.e. that:

 

‘Even though, generally, an arbitration award under the LRA is not a “judgment debt” under the Prescription Act, it comfortably satisfies the definitional criteria of a mere “debt” under that Act. The other categories of debt in the Prescription Act are clearly not applicable. Accordingly, a three year prescriptive period is applicable to such arbitration awards (i.e. the debts embodied in them) generally.’

 

The LAC however further stressed that ‘[c]ertification therefore has nothing to do with whether the award is due or not, but is part of the process of executing an award as if it is an order of the Labour Court’.  As such neither the application to certify an award nor the certification of an award stays prescription.

 

The LAC finally concluded that:

‘. . . a review to set aside an award is not “process whereby the creditor claims payment of the debt”. On the contrary, it is a process whereby the debtor seeks to set aside the debt. Such a review, therefore, does not interrupt prescription. But for the amendment contained in section 145(9), the same principle would have pertained to reviews in respect of awards made after January 2015.’

 

Knowledge of Misconduct

Posted: November 24, 2015 in Uncategorized

The Labour Appeal Court (LAC) in Western Platinum Refinery Ltd v Hlebela (2015) 36 ILJ 2280 (LAC) at para 20 held that:

 

‘. . . an appropriate way to discipline an employee who has actual knowledge of the wrongdoing of others or who has actual knowledge of information which the employee subjectively knows is relevant to unlawful conduct against the employer’s interests would be to charge that employee with a material breach of the duty of good faith, particularising the knowledge allegedly possessed and alleging a culpable non-disclosure.’

The LAC thus made it clear that an employee’s duty of good faith arises once he obtains knowledge and not only when the employer perform an inquiry.  The duty further extends to the employee’s own misconduct.

The LAC however stressed that a duty of good faith is not something which can arise through the employee’s negligence.  An employee can thus not be held liable where he should reasonably have known about misconduct committed, but did not.

The Labour Appeal Court has recently in Herhold v Nedbank Limited [2012] 9 BLLR 857 (LAC); (2012) 33 ILJ 1789 (LAC) adopted the view that a latent defect or irregularity (or process related unreasonableness) would include an instance “[w] here a commissioner fails to have regard to material facts,… [as] this will constitute a gross irregularity in the conduct of the arbitration proceedings because the commissioner would have unreasonably failed to perform his or her mandate and thereby have prevented the aggrieved party from having its case fully and fairly determined” (at § [36]).

 

This view as based on the minority judgment in Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] ZACC 22; 2008 (2) SA 24 (CC) at § [267] where Ngobo J held that “‘[f]airness in the conduct of the proceedings requires a commissioner to apply his or her mind to the issues that are material to the determination of the dispute. One of the duties of a commissioner in conducting an arbitration is to determine the material facts and then to apply the provisions of the LRA to those facts in answering the question whether the dismissal was for a fair reason. In my judgment, where a commissioner fails to apply his or her mind to a matter which is material to the determination of the fairness of the sanction, it can hardly be said that there was a fair trial of issues”.

 

The Supreme Court of Appeal now in Herhold v Nedbank Limited [2013] ZASCA 97, found that the views held by Ngobo J was contrary to that of the majority approach and rejected the such “additional” ground of review inter alia as it led a situation where the “[t]he threshold for interference with the award is lower than in terms of the judgment in Sidumo” and it would lead to a situation where it would be “immaterial whether the result reached by the arbitrator is one that could reasonably be reached on the material before the arbitrator. The mere possibility of prejudice will suffice to warrant interference” (at §§ [17] to [20]).  The Court however stressed that this “does not mean that a latent irregularity, as Schreiner J originally used that term in the Goldfield Investments case, is not a gross irregularity within the meaning of s 145(2)(a)(ii). It is, but only in the limited sense mentioned earlier, where the decision-maker has undertaken the wrong enquiry or undertaken the enquiry in the wrong manner” (at § [22]).

 

The SCA further rejected the so-called “dialectical unreasonablenesss” review ground, i.e. “unreasonableness flowing from the process of reasoning adopted by the arbitrator” and indeed as the said “approach is also based on a dictum by Ngcobo J, this time in New Clicks, that reads: ‘There is obviously an overlap between the ground of review based on failure to take into consideration a relevant factor and one based on the unreasonableness of the decision. A consideration of the factors that a decision-maker is bound to take into account is essential to a reasonable decision. If a decisionmaker fails to take into account a factor that he or she is bound to take into consideration, the resulting decision can hardly be said to be that of a reasonable decisionmaker.’ The first thing to note about this dictum is that it expressly relates to the provisions of PAJA and the manner in which they are to be applied. As PAJA does not apply to reviews under s 145(2) of the LRA it is of no application to CCMA awards. Second, if applied by considering the reasoning of a CCMA arbitrator and determining that the reasons given for making an award are not such as to justify that award, its effect is to resuscitate this court’s decision in Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation, Mediation and Arbitration, supra, even though that decision was expressly overruled in Sidumo. Once again that is not a permissible development of the law” (at §§ [23] and [24]).

 

The court concluded in surmising that “[a]review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable” (at § [25]).

  1. It is trite that condonation is not merely for the asking and that in determining whether condonation should be granted the court will judicially exercise a discretion to determine whether the granting of condonation would be in the interest of justice by considering inter alia the following facts and circumstances: –[1]

 

“the nature of the relief sought,

 

the extent and cause of the delay,

 

the effect of the delay on the administration of justice and other litigants,

 

the reasonableness of the explanation for the delay,

 

the importance of the issue to be raised…

 

[a]nd the prospects of success”.

 

  1. Where the delay is extensive, the applicant is required to provide a satisfactory explanation for the full period or every period of the delay[2] and must make reference to “the date, duration and extent of any obstacle on which reliance is placed”.[3] 

 

  1. If no acceptable explanation is provided for the delay or no explanation provided for certain periods of the delay then condonation will be refused irrespective as to how good the prospects of success might be[4] Similarly and where there are no prospects of success condonation will be refused irrespective as to how good an explanation for the delay might be provided.[5]


[1]           Van Wyk v Unitas Hospital and Another [2007] ZACC 24; 2008 (2) SA 472 (CC); [2008] (4) BCLR 442 (CC) at § [20]; Also Melane v Santam Ins urance Co Ltd 1962 (4) SA 531 (A) at 532C – F.

[2]           eThekwini Municipality and Ingonyama Trust [2013] ZACC 7; 2013 (5) BCLR 497 (CC) per Jafta J at § [28]; Van Wyk v Unitas Hospital and Another supra at [22]; National Union of Metalworkers of South Africa v Hillside Aluminium [2005] 6 BLLR 601 (LC) per Murphy AJ (as he was then)

[3]           Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at § [6].

[4]           P E Bosman Transport Works Committee v Piet Bosman Transport (Pty) Ltd 1980 (4) SA 794 (AD) at 799D-E per Muller JA; Inter alia quoted with approval in Ferreira v Ntshingila 1990 (4) SA 271 (AD) at 281D-282A

[5]           Chetty v Law Society, Transvaal 1985 (2) 756 (A) at 765 A-C; National Union of Mineworkers & others v Western Holdings Gold Mine (1994) 15 ILJ 610 (LAC) at 613E; National Union of Mineworkers v Council for Mineral Technology [1999] 3 BLLR 209 (LAC) at 211G-I per Myburgh JP

A national bargaining council for the civil engineering industry has officially been launched following its first annual general meeting last week, the South African Federation of Civil Engineering Contractors (Safcec) announced on Monday.

The National Bargaining Council for the Civil Engineering Industry (BCCEI) is tasked with negotiating minimum wages, social benefits, and conditions of employment, solving labour disputes and developing proposals on labour laws and policies.

Safcec, the National Union of Mineworkers and the Building Construction and Allied Workers Union would be responsible for the development and operation of the council, which was expected to represent in excess of 175 000 employees in the future.

The first “substantive negotiations” for the industry were expected to start in July, after the process and clarification meetings, due to start shortly, concluded.

Safcec applied to the Department of Labour in 2011 to establish BCCEI, in a bid to improve and standardise conditions of employment and create stability within the industry.

 

Taken from Cramer Media, Engineering News

http://www.engineeringnews.co.za/article/civil-engineering-bargaining-council-launched-2013-07-01?utm_source=Creamer+Media+FDE+service&utm_medium=email&utm_campaign=EngineeringNews%3A+Prasa+set+to+spend+R150bn+over+next+ten+years+as+it+upgrades%2C+expands&utm_term=http%3A%2F%2Fwww.engineeringnews.co.za%2Farticle%2Fcivil-engineering-bargaining-council-launched-2013-07-01

Yesterday (Monday 1 July 2013) Minister of Labour Mildred Oliphant, acting in accordance with Section 6(3) of the Basic Conditions of Employment Act, increased the annual earnings threshold to R193 805.00 from the previous figure of R183 008.00. 

The Labour Appeal Court very recently in National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2013] ZALAC 10 per Ndhlovu JA held that “[e]ven if it were to be accepted that Selemela’s previous written warning, final or not, had lapsed that fact should not have relieved the commissioner from taking the written warning into account in determining whether or not the dismissal was fair, particularly bearing in mind that the previous transgressions were only five months old and, more importantly, startlingly similar to the present misconducts, namely, failing to obey a lawful instruction and leaving the workplace without permission. Such persistent insubordinate behavioural conduct could justifiably not be tolerated by any employer”

 

The principle that regard may be had to “lapsed” warnings stems from the dicta of Nicholson AJ in Gcwensha v Commission for Conciliation, Mediation & Others (2006) 27 ILJ 927 (LAC) where he stated that “[i]t must also be recalled that there was in existence a written warning dating from March the previous year with a 12-month duration [which lapsed prior to the transgression]. The appellant has a deplorable employment record and there is a litany of transgressions to which I have alluded. An employer is always entitled to take into account the cumulative effect of these acts of negligence, inefficiency and/or misconduct. To hold otherwise would be to open an employer to the duty to continue employing a worker who regularly commits a series of transgressions at suitable intervals, falling outside the periods of applicability of final written warnings.An employee’s duties include the careful execution of his work. An employee who continuously and repeatedly breaches such a duty is not carrying out his obligations in terms of his employment contract and can be dismissed in appropriate circumstances… I accept that the purpose of a warning is to impress upon the employee the seriousness of his actions as well as the possible future consequences which might ensue if he misbehaves again, namely that a repetition of misconduct could lead to his dismissal. That seems to be the purpose of the warning issued in October to the appellant. I am of the view that an employer is always entitled to look at the cumulative effect of the misconduct of the employee.”


NEW EVIDENCE DURING ARBITRATION

Posted: January 31, 2013 in Uncategorized

It very often happens that an employer or employee attempts to present evidence at arbitration, which evidence was not presented during a disciplinary- or incapacity enquiry.

 

The Labour Appeal Court in County Fair Foods (PtyLtd v CCMA & others (1999) 20 ILJ 1701 (LAC) (“Country Fair”) found that “[t]he decision of the commissioner as to the fairness or unfairness of the employer’s decision is not reached with reference to the evidential material that was before the employer at the time of its decision but on the basis of all the evidential material before the arbitrator. To that extent, the [arbitration] proceedings are a hearing de novo.”

 

This despite, the CCMA tends to follow the view expressed in French v Compuware Corporation Southern Africa 2003 (23) ILJ 2001 (CCMA), i.e. that Country Fair merely meant that the arbitration proceedings did not constitute an appeal and that as such all previously led evidence had to be presented de novo.  Commissioners thus favoured the view that evidence not led at the disciplinary hearing could not be led during the arbitration is the only case which says you cannot present evidence not presented at the initial disciplinary hearing.

 

The Constitutional Court however in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC) ; (2007) 28 ILJ 2405 (CC) at [§59] found that “[t]his determination [whether a disputed dismissal was fair] and the assessment  of  fairness  is  not  limited  to  what  occurred  in  the disciplinary hearing”.

 

In Wasteman Group v SAMWU & Others (2011) 32 ILJ 1057 (LAC) Davies JA similarly concluded that “[t]he commissioner is required to come to an independent decision as to whether the employers decision was fair in the circumstances, these circumstances being established by the factual matrix confronting the commissioner”.

 

It was however only recently in IMATU obo Strydom v Witzenburg Municipality & others [2012] ZALAC 1;  [2012] 7 BLLR 660 (LAC); (2012) 33 ILJ 1081 (LAC) where the Labour Appeal Court for the first time directly dealt with the question of new evidence being presented at an arbitration hearing.  In the said matter the employee was dismissed for incapacity and led evidence at the arbitration hearing which was not presented (or for that matter available) at the incapacity enquiry.  The Commissioner concluded that such evidence had to be disregarded.  Molemela AJA however (at [§15]) recorded that [o]n the understanding of what an arbitration hearing entails, one would have expected that the commissioner would listen to evidence afresh and then make a determination as to the fairness or otherwise of the employee’s dismissal. Instead of doing so, the commissioner sought to confine himself only to the evidence that was available as at the time of the enquiry notwithstanding the fact that new evidence was adduced before him, both documentary and oral. The latter approach was wrong as it equated an arbitration hearing with an appeal hearing of some sort, quite far removed from the principle enunciated in the afore-mentioned cases”.

 

From the above it is thus clear that new evidence may be led at an arbitration hearing.  One should however be careful as the reliance on such evidence might render the initial enquiry procedurally unfair, e.g. where a party intentionally elected not to confront the other party with damning evidence which were available during the initial inquiry.

SATAWU and Others v Moloto NO & Others the constitutional court had to consider if a strike notice conformed to section 64 of the Labour Relations Act and specifically whether the notice identified those intending participating.

 

In esse SATAWU issued a strike notice in terms whereof it stated that it was intent on commencing strike action on a certain date.  Equity Aviation (the employer) accepted the SATAWU strike to be protected but the participation by non-SATAWU members as unprotected.  Equity Aviation consequently dismissed the non-SATAWU strikers.

 

The constitutional court was split five judges to four judges in favour of finding that the strike notice also covered the non-SATAWU strikers.  It is thus pertinent to understand both judgments.

 

The minority judgment (per Maya AJ) placed great reliance on the judgment of the Supreme Court of Appeal which court drew largely on the chaos which would arise if notice needed not be given by / on behalf of all strikers.  The majority judgment stressed that there existed an agency shop agreement between SATAWU and Equity Aviation which on the common cause fact made SATAWU the agent of all workers employed by Equity Aviation.  The majority thus found that Equity Aviation could not have laboured under the misconception that the strike notice was only intended to cover the SATAWU members and concluded that “the union, which represented the dismissed strikers in the wage negotiations and in the referral for attempted conciliation under section 64(1)(a) before embarking on strike action, was competent also to give the single notice required under section 64(1)(b). Our concluding observation is this: to hold otherwise would place a greater restriction on the right to strike of non-unionised employees and minority union employees than on majority union employees. It is these employees, much more than those who are unionised or represented by a majority union, who will feel the lash of a more onerous requirement. There is no warrant for that where they were already denied the right to bargain collectively on their own behalf in the preceding process”.