- June 5, 2023
- |Concise Law Reports (CLR), Labour Law
Ruling: Practice Directive 61
The applicants (employees) were appointed during 2018/2019 as senior investigating officers with the first respondent (ACC). Since the positions were advertised without the benefit of vehicle allowance, the applicants lodged a complaint with the third respondent (the Public Service Commission/PSC) seeking the same benefits as that of their colleagues appointed earlier. The applicants referred a dispute to the Labour Commissioner’s Office on 1 October 2019 after receiving an unfavorable response from the third respondent. The referral to the Labour Commissioner was held to be premature as the applicants needed to exhaust all the internal remedies available to them. This dispute was withdrawn by the applicants on 29 July 2020 to enable them to comply with section 33 of the Public Service Act, 13 of 1995. On 9 September 2020, the applicants referred a fresh dispute to the Labour Commission. A notice of conciliation and arbitration was issued on 8 December 2020 for a meeting to be held on 23 March 2021 before the fourth respondent (the Arbitrator). At the meeting, the respondents expressed their intention to raise specific points in limine. If upheld, the points in limine would dispose of the dispute.
The parties agreed that the fourth respondent, Ms. Katjivena, should adjudicate the points in limine based on the heads of argument only, without the need to hear evidence. On 16 April 2021, the respondents raised their points in limine and filed their heads of arguments. The points in limine were lack of locus standi, non-joinder, no relief sought, the validity of the collective agreement, and employment vis-à-vis the principle of legality, undue delay, prescription, and vague and embarrassing.
The arbitrator had to deliver her ruling on the points in limine within 30 days from the date of reply by the respondents. Nine months later, on 16 February 2022, she delivered an arbitration award in terms of which she made a finding that ‘the points in limine are dilatory in nature and would not take the matter further forward’. She did not deal any further with the points in limine raised by the first to third respondents and, out of her own motion, proceeded to decide the merits of the matter, although not argued. Having done so, the fourth respondent held that the dispute lodged by the applicants was without merit and proceeded to dismiss the complaint.
The applicants brought an application seeking to review the arbitration award of the arbitrator in which she dismissed their complaint as being without merit. The applicants based their application on the grounds that the fourth respondent’s conduct and attitude denied the applicants the opportunity to present their case and receive a fair hearing; the merits of the case need to be presented before a determination on it can be made, as the papers were not comprehensive enough to consider the dispute in full context; the fourth respondent committed a gross irregularity in the conduct of the arbitration proceedings; and that the applicants were prejudiced as a consequence of the conduct of the fourth respondent, as they were deprived of a fair hearing.
In opposition to the above, the respondents raised one main point in limine in opposition to the current relief sought by the applicants, which is that the review application brought by the applicants is defective and not in compliance with rule 14(4) of the Labour Court Rules, in that the notice was not directed or delivered to the Minister concerned and the Executive Director of the Ministry responsible for labour. The respondents further reiterated the points in limine raised during the arbitration proceedings.
Prinsloo J discussed the matter as follows:
‘Discussion
Point in limine raised by the respondents
[10] In respect of the complaint raised by the respondents that the application is defective as there is no compliance with r 14(4) of the Labour Court Rules, Ms. Alexander pointed out that the application by the applicants is misunderstood as the review is aimed at the conduct of the arbitrator (r 14(1)(a)). Therefore the reliance on r 14(4) is misplaced.
[11] Rule 14(4) of the Labour Court Rules reads as follows:
‘(4) The notice must be directed and delivered to the arbitrator, the Minister, the Permanent Secretary, the Commissioner, or to any other body or official, as the case may be, and to all other persons directly affected-
a) calling upon such persons to show cause why such proceedings or decisions should not be reviewed and corrected or set aside; and
(b) where appropriate, calling upon the arbitrator, the Minister, the Permanent Secretary, the Commissioner, or any other body or official, as the case may be, to despatch, within 15 days after receipt of the notice, to the registrar the record of the proceedings sought to be corrected or set aside, together with such reasons as he or she desires or is by law required to give or make, and to notify the applicant that he or she has done so.’ (my emphasis)
[12] Mr. Ncube disagreed with the submissions made by Ms. Alexander and submitted that r 14(4) is a strict provision, and the notice of review had to be delivered to the arbitrator, the Minister, the Permanent Secretary, and the Commissioner. Mr. Ncube argued that the parties upon which the notice had to be served should not be read in the alternative but should be read consecutively. As a result, r 14(4) is mandatory, and failure to comply with it is fatal.
[13] I can’t entirely agree with Mr Ncube in this regard. Mr. Ncube relies on the punctuation and, in essence, invites the court to effectively read into every comma the word ‘and’. In my view, this does not make logical sense as the words ‘arbitrator, the Minister, the Permanent Secretary, the Commissioner’ are followed with the words ‘or to any other body or official, as the case may be, and to all other persons directly affected’. There is clearly a choice to be exercised by the applicants regarding which of these parties to cite during the review proceedings. The Minister and the Executive Directors are not parties to the present review application, as the said application was launched against the arbitration award made by the arbitrator.
[14] In my view, the point in limine cannot be upheld.
The points in limine raised at the arbitration
[15] The points in limine that served before the arbitrator was argued afresh by Mr Ncube. Ms. Alexander submitted that the arguments advanced on behalf of the respondents are premature as the court is expected to step into the shoes of the arbitrator to adjudicate these points in limine. I must agree with Ms. Alexander’s contention.
[16] The issues raised as the points in limine will, in due course, serve before this court, but that will be in the context of the court of appeal and not in the context of a court of first instance.
Merits of the review application
[17] It is common cause between the parties that the merits of the dispute were never placed before the arbitrator, nor was she requested to decide the merits of the dispute. It is unclear where the arbitrator obtained the facts on which she made her findings. One can only infer that it was obtained from the summary of the dispute filed with the Labour Commissioner, the LC21.
[18] I also need to add that the arbitrator decided that the points in limine were dilatory in nature and left it at that. She did not advance reasons for this finding despite the fact that the respondents raised several points in limine. In my view, the points in limine at the arbitration were never properly determined.
[19] The conduct of the arbitrator was irregular. The order granted by the arbitrator on the merits without having any evidence or arguments placed before her must be set aside. Both parties suffer extreme prejudice by not having their matter properly adjudicated on the merits and on the points in limine for that matter.
Therefore, it was held that:
- The ruling of the fourth respondent under case CRWK 934/20 dated 16 February 2022 is reviewed, corrected, and set aside.
- The matter is referred back to the fifth respondent and the fifth respondent is directed to designate another Arbitrator to hear the matter de novo.
- No order as to costs.’