---

Of interest to other judges

THE LABOUR COURT OF SOUTH AFRICA

HELD AT CAPE TOWN

         Case: C 738-2017

In the matter between:

AMCU obo YVEN TENGAPHI                                                                  First Applicant

and

S H CHRISTIE (N.O.)                                                                                    First Respondent

BARGAINING COUNCIL FOR THE                                                         Second Respondent

CIVIL ENGINEERING INDUSTRY

UMZALI CIVILS (PTY) LTD                                                                       Third Respondent

Date of Hearing: 29 July 2021

Date of Judgment:  This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 12H00 on 30 July 2021

Summary: (review application-refusal to postpone arbitration hearing-absence of union representative-appropriate considerations arbitrator should consider- misdirection of postponement inquiry a reviewable irregularity denying employee a fair hearing – review only necessary because of union’s failure to assist employee after representative could not attend – costs)

JUDGMENT

LAGRANGE J

Introduction

[1]        This is a two-part application to condone the late filing of the record of arbitration proceedings with the registrar and, if condonation is granted reviewing an arbitration award on the basis that the arbitrator committed a reviewable irregularity in failing to postpone the proceedings when the individual employee’s union representative failed to attend.

[2]        In July 2017, Mr Y Yenghapi (‘Yenghapi’) was dismissed for five days absence without the leave after failing to return to work at the end of compassionate leave to attend the funeral of his mother.

[3]        His unfair dismissal case was set down for arbitration on 24 July 2017 before the second respondent for arbitration. The day before the arbitration, a national organizer of the applicant union (‘AMCU’), Mr D Nkalitshane (‘Nkalitshane’), received news of his own mother’s passing, and as a result was not able to represent Yengaphi at the arbitration, as intended. He had previously appeared on behalf of Yengaphi at the conciliation proceedings.

[4]        In the founding affidavit in the review application, Nkalitshane claimed that on the same day he had requested the postponement of the arbitration on account of his sudden bereavement. However, the request was denied by the bargaining council. In the answering affidavit of Mr. D Pienaar (‘Pienaar’), who performed HR functions for the third respondent (‘Umzali’), he admits that the request was made but claims that Nkalitshane incorrectly advised the council that Umzali had agreed to the postponement. It is only in his replying affidavit that Nkalitshane claims for the first time that the union was of the view that Umzali had agreed to the postponement “after the phone call discussion and given that the circumstances were beyond anyone’s control”. There was no reference in the founding affidavit or in the answering affidavit of any phone call discussion between Nkalitshane and any representative of Umzali, nor did he claim that the employer had agreed to the postponement of the arbitration. A communication from the union to the Bargaining council and Umzali, which was supposed to be annexed to the founding affidavit of Nkalitshane as Annexure “D”, does not appear in the pleadings.

[5]        It is evident from the transcript of the arbitration hearing that Yengaphi was unaware of any attempt to postpone the hearing by the union. The only document from the union, which the arbitrator read into the record, was sent by another union official, Mr JK Mphahlehle. The letter was addressed to Pienaar and stated:

“Dear Donn, request for postponement of cases 24 and 28 August 2 017. Your telephonic conversation with our Mr.Dumisani Nkalitshane refers. We hereby confirm a postponement of the Bargaining council matters which was scheduled at the BCCEI , Cape Town Offices on 24 and 28 2017. This request is due to the sudden passing of the mother of our Mr. Nkalitshane we confirm that both parties Umzali  and AMCU had agreed to these postponements in the above-mentioned reasons. Your cooperation is appreciated.”

[6]        At the arbitration, the company disputed that there had been any verbal or other communication with the union, which could have been understood as an agreement to a postponement. It is also common cause that the council itself promptly refused to postpone the matter, albeit because the application had not been brought earlier in terms of the council procedures. The arbitrator rightly found the council’s reason for rejecting a postponement to be inappropriate given that the death of Nkalitshane’s mother had only occurred the day before and could not have been anticipated.

[7]        It is apparent from the transcript that Yengaphi was reluctant to make any representations or give any evidence of any kind in the absence of a representative from the union. The situation confronting the arbitrator was that she had to consider whether or not to postpone the arbitration hearing, notwithstanding the bargaining council’s refusal to postpone the matter beforehand on receiving the document from the union about a purported agreement to postpone the matter, the day before the hearing.

[8]        The arbitrator questioned Yengaphi in an apparent effort to determine whether or not Nkalitshane would have been in a position to represent him on the basis of any prior preparation they had done. She concluded that Nkalitshane would probably have been unprepared and would be ‘winging it’ if he had been there to defend Yengaphi in the arbitration. On that basis, she implicitly concluded that Yengaphi would probably not be any better off if Nkalitshane had been present and therefore he was not particularly disadvantaged by his absence. Further, given the nature of the reason for the dismissal, it concerned factual issues which Yengaphi himself ought to be able to respond to.

[9]        The arbitrator also attempted to get a sense of the relative strength of the parties’ respective cases, which she viewed as an important factor in determining whether or not to grant the postponement. Mr. R Carelse (‘Carelse’), who was representing Umzali, made extensive representations in this regard. At the end of Carelse’s representations, Yengaphi asked if the arbitration was now underway, but the arbitrator tried to reassure him that she simply wanted to make a broad assessment of their respective cases. She stressed to Yengaphi that he needed to set out broadly what his case was because she was not going to grant a postponement if his case was “hopeless”, but if it was “a goodish one“ a “plan” could be made. Once again, Yengaphi emphasized that Nkalitshane was the one who was supposed to respond on his behalf.

[10]    To try and assist Yengaphi, notwithstanding the absence of representation, the arbitrator proposed that the company lead evidence and she would transcribe her notes and forward for them to both parties. The union would then be given an opportunity to make written submissions and the company could reply. Once this was explained to Yengaphi by the interpreter, he made it clear that if that is how the matter was going to proceed he could not participate in the proceedings and Nkalitshane would make representations. It is evident that even Carelse was not entirely sure how the matter would be conducted by means of the proposed combination of evidence and representations.

[11]    The arbitrator then heard the oral evidence of Pienaar and the evidence of Mr A Beling, a site agent. The latter testified telephonically. During the course of their evidence, Yengaphi was not specifically invited to cross-examine them. It is noteworthy that Carelse himself queried whether the union would have an opportunity to cross-examine the evidence given by Umzali’s witnesses, and the arbitrator replied in the negative.

[12]    It was at the end of Beling’s evidence in chief that Yengaphi received a call, apparently from a shop steward, advising him that there was an agreement to postpone the matter. In the light of that communication, Yengaphi then left the arbitration hearing, despite being warned not to by the arbitrator.

[13]    Although the opportunity was provided to the union to make written representations as outlined by the arbitrator, no representations were made and the arbitrator handed down her reward finding that Yengaphi’s dismissal was substantively and procedurally fair.

[14]    On 16 November 2017, the union launched review proceedings on Yengaphi’s behalf and founding of answering and replying affidavits were filed, in due course. The record was also served timeously on Umzali on 28 February 2018. However, it was only on 7 November 2019 that it became apparent that the record had not been filed with the court. After some toing and froing between the attorneys and a paralegal officer of the union handling review matters the record was filed with the court on 4 December 2019, some 21 months’ late. Once the condonation application had been filed the matter was then set down for hearing.

[15]    Umzali does not oppose the condonation application for the late filing of the record, but in its heads of argument it raised an objection that, even if the late filing of the record with the court could be condoned, the union had also failed to comply with clause 11.2.7 of the labour court practice manual. In terms of clause 11.2.7 the union ought to have filed all the necessary papers within twelve months of launching the application and to have informed the registrar in writing that the application may be set down for hearing, failing which the application would be archived and considered to have lapsed. This should have been done by 17 November 2018. However, it was only just over a year later that the registrar was approached to enrol the application. Although the union lost legal administrators, who were responsible in one way or another for the handling of reviews, by early May 2019, it knew the matter was ripe for hearing. No real explanation is provided why nothing was done until the union realised in October that year that the record had not been filed with the court.

[16]    In the course of argument, the lapsing of the review application in terms of clause 11.2.7 became apparent. The lapsing would remain in effect even if the failure to comply with clause 11.2.3 of the practice manual was condoned. Accordingly, in the absence the review application being retrieved from its archived status under clause 11.2.7, the court would still not be able to entertain the application. One consequence of this would be that the application enrolled before the court would have to be struck off following the authority of the Labour Appeal Court in Macsteel Trading Wadeville v Van der Merwe NO & others (2019) 40 ILJ 798 (LAC)[1] . The matter would then fester in limbo pending the inevitable launching of a fresh application to remove the review application from the archive. The result would most probably have been that both parties would then incur further significant legal costs in dealing with that application on top of the legal costs incurred to date in dealing with the review and condonation applications. When this prospect was raised, the applicant then agreed, wisely in my view, that it would not persist with any opposition to the matter being revived on account of having lapsed under clause 11.2.7 and that the merits of the review could be considered.

Evaluation

[17]    I can understand that the arbitrator felt that as far as possible the opportunity to arbitrate the dispute should not be lost. She was clearly mindful of the costs to the bargaining council of convening the arbitration and the inconvenience suffered by Umzali of having arranged to have witnesses available, albeit that Beling was only telephonically available. She also clearly felt that this was a simple case because the nature of the misconduct was very straightforward. Further, any explanation why Yengaphi did not return to work when he should have, was something that he was best placed to testify to. At best for the AMCU, there was a clear dispute about whether the employer had agreed to postpone the arbitration. The fact that both Umzali’s representative and a witness attended the arbitration, strongly suggests that it was unlikely that it believed that the matter would not proceed. Correspondingly, it is far less likely it had agreed to a postponement. Therefore, it was not unreasonable of the arbitrator to conclude that there had been no agreement, on what was before her. It is also evident that no substitute representative had been arranged by the union when Nkalitshane could not attend.

[18]    The arbitrator also found that Yengaphi had declined representation at his disciplinary inquiry even though he had been given an opportunity for a union representative to defend him, and that he had given no evidence after pleading not guilty. On the face of the record, the only basis for this finding were the representations of Carelse in the course of outlining Umzali’s case. The arbitrator also specifically asked Carelse if he had been present at the internal inquiry, but he replied he had not. Neither Pienaar nor Beling were asked to confirm what had transpired at the inquiry, Thus, strictly speaking, there was no proper evidence before the arbitrator to confidently draw an inference that Yengaphi had waived his right to representation at the disciplinary inquiry. This finding also plainly played a role in her decision to refuse the postponement.

[19]    Nonetheless, it was plain that before Yengaphi learned at the arbitration that Nkalitshane would not be present to defend him, he had no reason to approach the union to ensure he was represented. He had come to the arbitration expecting to be represented and was naturally reluctant to engage in the process without assistance. Umzali was represented by Carelse, an attorney, as a member of an employer organization. It should be mentioned that there is no reason to believe the arbitrator realised Carelse was an attorney, but she did not seem to consider if it was fair to proceed with the hearing in circumstances where the employee had been abandoned by his union, and the employer was represented by an external representative with evident expertise.

[20]    In Free State Gambling & Liquor Authority v Pehelo Motane N.O.,[2] Thlothlalemaje J summarised the considerations applicable to postponements of arbitration proceedings:

(15) In Carephone (Pty) Ltd v Marcus NO and Others^[3], Froneman DJP (as he then was) reiterated that an application for postponement was not a matter of right. It is an indulgence granted by the court to a litigant in the exercise of a judicial discretion^[4]. With regards to proceedings before the CCMA, Froneman DJP further held that:

“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. . . ”^[5]

(16) Emanating from the above and other jurisprudence, it is apparent that:

a)    postponements at arbitration hearings are not to be readily granted^[6].

b)    postponements in arbitrations should be granted on “less generous basis.” This approach is informed by the recognition that the LRA requires that labour disputes need to be resolved expeditiously and thus arbitrators have a wide discretion in granting or refusing to grant a postponement;^[7]

c)     where fundamental fairness and justice justifies a postponement, the arbitrator may in appropriate cases, allow such an application even if it was not timeously made;

d)    the Labour Court sitting in review will adopt a stringent and restricted approach to interfering with the refusal to grant postponements by arbitrators;

e)    it is only when a compelling case has been made for interfering with the exercise of the discretion of the arbitrator, will the court interfere with the refusal to grant a postponement. This can be in instances where the arbitrator was influenced by wrong principles or misdirection on the facts, or where the decision reached could not reasonably have been made by an arbitrator properly directing him/herself to all the relevant facts and principles.”

(Emphasis added and original footnotes incorporated as footnotes 3 to 7 in this judgment)

[21]     Mr. Cook, appearing for the applicant, referred to the decision in Myburgh Transport v Botha t/a SA Truck Bodies 1991 (3) SA 310 (NmS). The judgement dealt with an appeal against a refusal to grant a postponement, and was cited with approval in  National Coalition for Gay and Lesbian Equality and Others v Minister of Home Affairs and Others 2000 (2) SYengaphi (CC).[8] In Myburgh, the principles applicable to setting aside a postponement ruling on appeal were summarised thus:

“The legal principles of application

The relevant legal principles of application in considering this appeal may be stated as follows:

1.   The trial Judge has a discretion as to whether an application for a postponement should be granted or refused (R v Zackey 1945 AD 505).

2.   That discretion must be exercised judicially. It should not be exercised capriciously or upon any wrong principle, but for substantial reasons. (R v Zackey (supra ); Madnitsky v Rosenberg 1949 (2) SA 392 (A) at 398 - 9; Joshua v Joshua 1961 (1) SA 455 (GW) at 457D.) 

3.   An appeal Court is not entitled to set aside the decision of a trial Court granting or refusing a postponement in the exercise of its discretion merely on the ground that if the members of the Court of appeal had been sitting as a trial Court they would have exercised their discretion differently.

4.   An appeal Court is, however, entitled to, and will in an appropriate case, set aside the decision of a trial Court granting or refusing a postponement where it appears that the trial Court had not exercised its discretion judicially, or that it had been influenced by wrong principles or a misdirection on the facts, or that it has reached a decision which in the result could not reasonably have been made by a Court properly directing itself to all the relevant facts and principles. (Prinsloo v Saaiman 1984 (2) SA 56 (O); cf Northwest Townships (Pty) Ltd v Administrator, Transvaal, and Another 1975 (4) SYengaphi (T) at 8E - G; Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SYengaphi32 (A) B at 152.)

5.   A Court should be slow to refuse a postponement where the true reason for a party's non-preparedness has been fully explained, where his unreadiness to proceed is not due to delaying tactics and where justice demands that he should have further time for the purpose of presenting his case. Madnitsky v Rosenberg (supra at 398 - 9).

6.   An application for a postponement must be made timeously, as soon as the circumstances which might justify such an application become known to the applicant. Greyvenstein v Neethling 1952 (1) SA 463 (C). Where, however, fundamental fairness and justice justifies a postponement, the Court may in an appropriate case allow such an application for postponement, even if the application was not so timeously made. Greyvenstein v Neethling (supra at 467F).

7.   An application for postponement must always be bona fide and not used simply as a tactical manoeuvre for the purposes of obtaining an advantage to which the applicant is not legitimately entitled.

8.   Considerations of prejudice will ordinarily constitute the dominant component of the total structure in terms of which the discretion of a Court will be exercised. What the Court has primarily to consider is whether any prejudice caused by a postponement to the adversary of the applicant for a postponement can fairly be compensated by an appropriate order of costs or any other ancillary mechanisms. (Herbstein and Van Winsen The Civil Practice of the Superior Courts in South Africa 3rd ed at 453.)

9.   The Court should weigh the prejudice which will be caused to the respondent in such an application if the postponement is granted against the prejudice which will be caused to the applicant if it is not.

10. Where the applicant for a postponement has not made his application timeously, or is otherwise to blame with respect to the procedure which he has followed, but justice nevertheless justifies a postponement in the particular circumstances of a case, the Court in its discretion might allow the postponement but direct the applicant in a suitable case to pay the wasted costs of the respondent occasioned to such a respondent on the scale of attorney and client. Such an applicant might even be directed to pay the costs of his adversary before he is allowed to proceed with his action or defence in the action, as the case may be. Van Dyk v Conradie and Another 1963 (2) SA 413 (C) at 418; Tarry & Co Ltd v J Matatiele Municipality 1965 (3) SYengaphi31 (E) at 137.’

(emphasis added)

[22]    The application of the principles set out in Myburgh obviously needs to be done in the context of arbitration proceedings under the Labour Relations Act, 66 of 1995, which are intended to be expeditious in nature, and where an award of costs will not always be a feasible measure to offset some of the prejudice to the party opposing a postponement.

[23]    In essence, Yengaphi complains that the arbitrator’s decision not to postpone the hearing in the circumstances before her was a decision that no reasonable arbitrator would have taken in the judicial exercise of their discretion in deciding the application.

[24]    The arbitrator was understandably frustrated by the obstacles in the way of conducting the arbitration hearing in the ordinary manner, given the unexpected absence of Nkalitshane, and Yengaphi’s unwillingness to play any role in the hearing without him. She cannot be criticized for attempting to find a way of taking the arbitration forward by adapting the procedure for conducting the hearing.

[25]    However, there were some serious difficulties with the approach she adopted. Firstly, in so far as she did consider the relative prejudice to the parties of postponing the arbitration, she appears to have collapsed this question into an inquiry about the relative prospective merits of the parties’ cases. This approach meant that she failed to consider whether Yengaphi would have a fair hearing if he had to conduct his case alone, having come to the arbitration in the belief that his representative would be there to act on his behalf and that he could rely on him to represent his best interests. She also failed to consider whether he had a reasonable opportunity to obtain alternative representation on his own initiative. It was obvious to the Commissioner that he was caught unawares by his representative’s absence. Further, she misconstrued his reluctance to make representations in the absence of his representative as an obdurate obstruction to the hearing proceeding. It is evident from the record that he believed the arbitrator was in the process of canvassing evidence from the parties when she asked them to make representations on the relative strengths of their cases. As it turns out, that belief was not entirely wrong, as shown by the arbitrator’s subsequent reliance on Carelse’s representations about what allegedly transpired at the internal inquiry. 

[26]    Also, the arbitrator adopted the view that even though she acknowledged that Yengaphi had been unexpectedly left in the lurch by the union (thereby implicitly acknowledging he was prejudiced by this), she went on to consider if Nkalitshane’s presence would have made any difference to Yengaphi. It was pointed out in argument that even if the arbitrator might have surmised that Yengaphi merely needed to provide the explanation for his unauthorised absence, which was a matter within his knowledge, that is not the only factor which might have affected the outcome of the arbitration. For example, it was possible that a representative might have argued why a previous final warning for striking should not have played a role in deciding to dismiss Yengaphi, or whether dismissal was the only appropriate sanction if his absence could not be justified.

[27]    Lastly, the solution adopted by the arbitrator to try and give Yengaphi some opportunity to compensate for the absence of Nkalitshane at the hearing could not reasonably be said to offset the prejudice he faced if the postponement was refused. In effect, the alternative arrangement meant that the union would only have an opportunity to make representations and submissions, without Yengaphi having had the benefit of his union representative cross-examining Umzali’s witnesses. It is true as Mr de Kock, who represented Umzali, argued that the union could have attempted to persuade the arbitrator re-open the arbitration for cross-examination and leading of Yengaphi’s evidence, but the fact remains that the arbitrator had made a ruling on how the matter would proceed. However, the union’s failure to try and intervene at this juncture is relevant to the issue of costs.

[28]    In all the circumstances, it cannot be said that the arbitrator gave proper consideration to the relative prejudice to the parties of granting a postponement, in circumstances where the events giving rise to Nkalitshane’s absence had been unexpected and on the eve of the arbitration. Even if they had been a misrepresentation by him of an agreement to postpone the hearing, that did not detract from the fact that the reason for his absence was understandable.

[29]    What the union can be criticized for is not making any alternative arrangement for someone to even phone the arbitrator in an attempt to postpone the proceeding on the day the hearing was convened. If that was not done because the official who sent the letter confirming the purported agreement to postpone the inquiry was ignorant of the fact that there was actually no agreement, then that is the fault of Nkalitshane as Yengaphi’s union representative. On the pleadings, the only plausible interpretation is that there was no agreement reached between Nkalitshane and Pienaar that the arbitration should be postponed. Had the union made a conscientious effort to address the crisis created by Nkalitshane’s bereavement and made direct representations to the Commissioner on why the matter should be postponed, along the lines argued by counsel in these application proceedings, it is unlikely this review application would have been necessary.

[30]    In conclusion, I am satisfied that the arbitrator’s failure to weigh up the prejudice to Yengaphi’s right to a fair hearing and her emphasis on assessing the merits of his case reflected a misdirection on her part, causing Yengaphi to be denied his right to a fair hearing. Consequently, the only feasible remedy is to set aside the arbitrator’s award and remit the matter back for a hearing de novo. To the extent that the late enrolment of the review application could prejudice Umzali in the event of the arbitrator making a finding in favour of Yengaphi, that is something the arbitrator will have to consider.

[31]    On the question of costs, even though Yengaphi is ultimately successful, as I have mentioned above this application would in all probability have been avoided had the union not simply left Yengaphi to his own devices on the day of the hearing, but had sent someone to address the Commissioner on the postponement question. Similarly, it adopted a passive stance when the matter was still incomplete and when it could have made representations to permit the cross-examination of Umzali’s witnesses. In the circumstances, the requirements of law and fairness require the union to pay Umzali’s costs of the review application.

Order

[1]        The Applicant’s late filing of the record of the arbitration with the Registrar of the Labour Court and its failure to request the enrolment of the matter within twelve months of the review application being launched is condoned, and to the extent that the review application is deemed to have been withdrawn or lapsed in terms of the provisions of the Labour Court Practice Manual, the review application is reinstated.

[2]        The award of the First Respondent under case number CCEI 332-17 is reviewed and set aside.

[3]        The Second Respondent must enrol the Applicant’s unfair dismissal claim for arbitration before an arbitrator other than the First Respondent, within 30 days of being served with a copy of this judgment.

[4]        The Applicant must pay the Third Respondent’s costs of opposing the review application, on the ordinary opposed scale.

Lagrange J

Judge of the Labour Court of South Africa

Appearances/Representatives 

For the Applicant                              A Cook instructed by LDA Attorneys

For the Third Respondent                 C de Kock instructed by Carelse Khan Inc. 

[1] At 805, para [28].

---