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.