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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

CASE NO: J 2258/13

JR 3359/10

DATE: 18 NOVEMBER 2013

NOT REPORTABLE

In the matter between:

G4S SECURITY SERVICES (PTY) LTD …................................................APPLICANT

And

SATAWU OBO JM TSEKI................................................................1ST RESPONDENT

NATIONAL BARGAINING COUNCIL

FOR THE ROAD FREIGHT INDUSTRY …...................................2ND RESPONDENT

TREVOW WILKES NO....................................................................3RD RESPONDENT

Date heard: 31 October 2013

Judgment delivered: 18 November 2013

JUDGMENT

VAN NIEKERK J

[1] On 17 October 2013 the court made an order postponing matter number J 2258/13, an urgent application brought to stay pending arbitration proceedings. The application was postponed to enable the matter to be heard with a rescission application filed under case number JR 3359/10, a matter in which heads of argument had been filed and which was ripe for hearing. The reason for the postponement was that it became apparent that the outcome of the rescission application would effectively determine the fate of the urgent application, and with the consent of the registrar, both applications were argued on 31 October 2013.

[2] The material facts are not in dispute. The individual employee on whose behalf the first respondent in the rescission application acts was employed as a security officer in May 2006. He was dismissed in May 2010 after being found guilty of a charge of negligence relating to the handling of cash in transit. The matter proceeded to arbitration on 15 October 2010. The arbitrator came to the conclusion that the employee’s dismissal was substantively and procedurally fair and upheld his dismissal.

[3] On 5 December 2012, this court granted an order in terms of which the Commissioner’s decision was reviewed and set aside. In terms of the order, the employee was reinstated into his position without loss of benefits.

[4] The employee reported for work on 13 December 2012 and avers that he was subsequently reinstated. During the course of January 2013, after having become fully apprised of the reviewing court’s ruling and its implications, the applicant advised the employee of its intention to institute these proceedings and refused him access to its property. As a consequence, the employee referred an unfair labour practice dispute to the bargaining council. A pending arbitration hearing was postponed on a number of occasions it would seem pending the outcome of the application for rescission

[5] The application filed under case number JR 3359/10 seeks to rescind the order granted on 5 December 2012. In the application for rescission, the applicant records that the review application was served on or about 15 December 2010 by registered post, and that after receiving the review and condonation applications, no further documents were received by the applicant. The applicant states that it became aware of the court order only on 12 December 2012 and to the extent that the rescission application was filed late (it was filed on 19 February 2013), the applicant seeks condonation.

[6] The application is some 30 days late, which is not substantial having regard to the December holiday period, during which the applicant experienced difficulty in instructing its legal representatives in relation to the application. In my view, the period of delay is not significant and explanation that has been proffered is not unreasonable. In the circumstances, the late filing of the application is condoned.

[7] It is incumbent on the applicant in an application for rescission to establish that it was not in willful default by failing to attend court when the order that is the subject of these proceedings was granted, and that it has a bona fide defence to the application.

[8] It is not seriously disputed that the applicant received only the application for review and that no further documents were received including the application for late filing of the review application and a notice in terms of Rule 7A (8). It is also not seriously disputed that the applicant did not receive the notice of set down of the proceedings on 5 December 2012. The applicant avers that it laboured under the belief that the employee had elected not to prosecute the review application. In terms of the rules, the applicant was required to enter a notice of intention to oppose only after receipt of the notice in terms of Rule 7A (8), a notice that as I have indicated, the applicant avers it never received.

[9] In so far as a bona fide defence is concerned, the applicant deals in some detail with the merits of the employees dismissal and submits that on a prima facie basis the employee’s dismissal was correctly upheld and that it has good prospects of persuading the reviewing court that the commissioner’s ruling ought to be upheld. In my view, it is not necessary to canvass the merits relating to the circumstances of the employees dismissal. The reviewing court gave an ex tempore judgment in which inter alia it was found that the arbitrator, in arriving at his finding, failed properly to apply his mind to the issues before him and to consider properly the factors that he was bound to take into account. Further, it is apparent that the award was set aside on the basis that the arbitrator failed to take into account that the case before him was one where dismissal was not the appropriate sanction in the absence of any dishonesty and any evidence that the relationship between the parties had irretrievably broken down. In short, the basis on which the award was set aside was that the arbitrator had failed to apply his mind to a number of material issues relevant to the determination of the fairness of the dismissal and that he accordingly committed a gross irregularity in the conduct of the arbitration proceedings.

[10] The legal principles on which that conclusion was reached relied on an interpretation of the judgment of the Constitutional Court in Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC) that recognised a so-called right of review on the basis of process-related irregularity. In the recent decision of Heroldt v Nedbank Ltd (701/2012, 5 September 2013) the Supreme Court of Appeal held that this approach constituted an incorrect application of the principles established in Sidumo and that the proper approach was one that required the reviewing court to determine only whether the arbitrator misconceived the nature of the enquiry or arrived at an unreasonable result. In so far as the latter is concerned, the court held that a result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all of the available material. In these circumstances, material errors of fact and the weight and relevance to be attached to particular facts are not in themselves sufficient for an arbitration award to be set aside. This approach was recently applied by the Labour Appeal Court in Goldfields Mining v CCMA (JA 2/1012) where the court specifically regarded a piecemeal approach to an arbitration award by a reviewing court is improper and at variance with the purpose of review.

[11] To the extent that the reviewing court in setting aside the commissioner’s award relied on principles which have since been found to be at variance with the principles in Sidumo, in my view, the applicant must have reasonable prospects of success in the review application and for present purposes, has satisfied the requirement that it establish a bona fide defence.

[12] In these circumstances, the application to rescind the order made on 5 December 2012 succeeds. It follows that the arbitration proceedings that are the subject of the application under case number J 2258/13 ought to be stayed.

[13] In so far as costs are concerned, the court has a broad discretion in terms of section 162 to make orders for costs on the grounds of lawfulness and fairness. In the present instance, given that the application for rescission has succeeded largely on the basis of a decision by the supreme Court of Appeal not available to the parties at the time the application was instituted, and having regard to the fact that the matter concerns a trade union acting on behalf of its member, it is appropriate that there be no order as to costs.

I make the following order:

1. In case number JR 3359/10, the order granted by this court on 5 December 2012 is rescinded.

2. In case number J 2258/13, the arbitration proceedings under case number GPRFBC 25335-13 are stayed.

3. There is no order as to costs.

ANDRE VAN NIEKERK

JUDGE OF THE LABOUR COURT

APPEARANCES

For the applicant: Adv. L Franck, instructed by Blake Bester

For the respondent: Mr S Mabaso, Mabaso Attormeys

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