Transcript Slide 1

PRACTICE AND PROCEDURE
PETER LE ROUX
1
CCMA Guidelines on misconduct arbitration:
• Guidelines come into effect on 1 January 2012.
• Useful and detailed guidelines as to how arbitration
should be conducted.
• Aimed at arbitrators but will impact on how parties
conduct arbitrations.
• Seems to envisage a more active role for arbitrators.
• Interesting guidelines dealing with procedural fairness,
the assessment of evidence and determining the sanction
to be applied.
Current Labour Law
2
Justifying dismissal:
NEHAWU obo Motsoage v SARS [2010] 10 BALR 1076
(CCMA)
Madonsela v SARS [2011] 8 BALR 829 (CCMA)
• It is important to lead evidence to show why dismissal
was an appropriate sanction.
• See also CCMA guidelines – paragraph 93 et seq.
Current Labour Law
3
Con-Arb:
Rule 17(4)
If a party fails to appear or be represented at a hearing
scheduled in terms of subrule (1), the commissioner must
conduct the conciliation on the date specified in the notice.
Current Labour Law
4
Con-Arb:
Inzuzu IT Consulting (Pty) Ltd v CCMA and Others
[2010] 12 BLLR 1288 (LC)
If a party fails to appears at the con-arb the commissioner
is not empowered to proceed with the arbitration.
Current Labour Law
5
Con-Arb:
Pioneer Foods (Pty) Ltd v CCMA [2011] 8 BLLR 771 (LC)
• Section 191(5A) provides that the council or
Commission must commence the arbitration immediately
after certifying that the dispute remains unresolved.
• If no party has objected to con-arb, the Commissioner
must conduct the conciliation on the scheduled date,
even if a party fails to appear or be represented.
• The Commissioner will then inevitably issue a certificate
that the dispute remains unresolved.
Current Labour Law
6
Con-Arb:
Pioneer Foods (Pty) Ltd v CCMA [2011] 8 BLLR 771 (LC)
• The Commissioner must then commence the arbitration.
• Having commenced the arbitration, the Commissioner
retains the discretion to adjourn it to a later date.
Current Labour Law
7
Jurisdiction of the Labour Court:
Cruse v Gijima AST (Pty) Ltd v CCMA (2010) 31 ILJ
1898 (LC)
Labour Court has jurisdiction to hear disputes regarding
“collateral agreements” – in this case a contractual claim
for severance benefits.
Current Labour Law
8
Factual findings of arbitrators:
Sasol Mining (Pty) Ltd v Commissioner Nggeleni and
Others [2011] 4 BLLR 404 (LC)
[7] Regrettably, the commissioner’s logic (or, more
accurately, the lack of it) permeates many of the
awards that are the subject of review proceedings in
this court. Some commissioners appear wholly
incapable of dealing with disputes of fact – their awards
comprise an often detailed summary of the evidence,
followed by an “analysis” that is little more than a
truncated regurgitation of that summary accompanied
by a few gratuitous remarks on the evidence, followed
by a conclusion that bears no logical or legal
relationship to what precedes it.
Current Labour Law
9
Factual findings of arbitrators:
Sasol Mining (Pty) Ltd v Commissioner Nggeleni and
Others [2011] 4 BLLR 404 (LC)
What is missing from these awards (the award under
review in these proceedings is one of them) are the
essential ingredients of an assessment of the credibility
of the witnesses, a consideration of the inherent
probability or improbability of the version that is
proffered by the witnesses, and an assessment of the
probabilities of the irreconcilable versions before the
commissioner.”
Current Labour Law
10
Factual findings of arbitrators:
See also:
• Network Field Marketing (Pty) Ltd v Mngezana NO
and Others [2011] 7 BLLR 699 (LC);
• See paragraphs 55-56 of the CCMA guidelines.
Current Labour Law
11
Costs order against CCMA in review proceedings:
Inzuzu IT Consulting (Pty) Ltd v CCMA and Others
[2010] 12 BLLR 1288 (LC)
The CCMA as well as arbitrators and commissioners clearly
ought to be protected against costs orders being granted in
instances where bona fide mistakes have been made, or in
instances where a measure of negligence has occurred.
Current Labour Law
12
Costs order against CCMA in review proceedings:
Inzuzu IT Consulting (Pty) Ltd v CCMA and Others
[2010] 12 BLLR 1288 (LC)
If a commissioner or arbitrator acts in a frivolous or
vexatious manner, acts maliciously or mala fide, commits a
gross dereliction of duty or is grossly negligent it would be
unfair to deprive an aggrieved litigant of a costs order.
Current Labour Law
13
Lifting the corporate veil:
Zeman v Quickelberge and Another (1) (2011) 32 ILJ 453
(LC)
• Employee found to have been unfairly dismissed by the
employer – a close corporation. The sole member was Q.
• Shortly after date of award the CC, represented by Q,
sold its assets to the Q Family Trust. When Sheriff
attempted to execute a writ on the assets of the CC, he
was informed that the trust paid no money for the assets
because the trust had previously loaned the CC an
amount of money equal to the value of the assets.
Current Labour Law
14
Lifting the corporate veil:
Zeman v Quickelberge and Another (1) (2011) 32 ILJ 453
(LC)
• The assets (ie. kitchen and restaurant equipment used to
run a restaurant) were never taken possession of by the
Trust and were simply left with the restaurant which had
“the privilege to use the attached assets”. Q on behalf of
the CC had guaranteed that the assets were free of any
security or attachment from claims from third parties.
• Q knew, or ought to have known, that when he signed the
agreement transferring the assets to the trust, that a debt
was owed to the employee.
Current Labour Law
15
Lifting the corporate veil:
Zeman v Quickelberge and Another (1) (2011) 32 ILJ 453
(LC)
• The Court finds that the inference was inescapable, that
the sale was done for a fraudulent purpose and was, at
the very least, an abusive of corporate personality.
• Q, as signatory to the deed of sale, guaranteed that the
assets of the employer were free of any claims from third
parties. Alternatively he was grossly negligent or reckless
in circumstances where he ought to have known that an
attachment claim from third parties was in existence in
the form of an arbitration award against him.
Current Labour Law
16
Lifting the corporate veil:
Zeman v Quickelberge and Another (1) (2011) 32 ILJ 453
(LC)
• Q was acting as a “puppet master”, and using the
separate corporate personality of CC to avoid paying the
debts of CC, and at the same time keeping the CC
operating the restaurant as though nothing had
happened.
Current Labour Law
17
Lifting the corporate veil:
Zeman v Quickelberge and Another (1) (2011) 32 ILJ 453
(LC)
• The corporate veil should be lifted and Q held personally
liable for the debt of the CC.
Current Labour Law
18
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
• Contract of employment providing for private arbitration
at the cost of the employer – arbitrator to be appointed by
Tokiso.
• Employee referred unfair dismissal dispute to the
Bargaining council.
• Employer argued that the dispute should be referred to
private arbitration.
• Arbitrator held that it should deal with the dispute and
relied on section 191 of the LRA.
Current Labour Law
19
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
Section 23(3) of the LRA states that –
“Where applicable, a collective agreement varies any
contract of employment between an employee and
employer who are both bound by the collective
agreement.”
Current Labour Law
20
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
Clause 5 of the bargaining council dispute resolution
agreement provides that –
“All disputes shall, if required by the Act [the LRA], be
referred to the Council for conciliation and arbitration.”
Current Labour Law
21
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
Section 191 provides that –
“(1) A contract of employment, … may not…
(b) permit an employee to be treated in a manner, or
to be granted any benefit, that is less favourable
than that prescribed by that collective agreement
or arbitration award; or
Current Labour Law
22
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
(c) waive the application of any provision of that
collective agreement or arbitration award.
(2) A provision in any contract that purports to permit or
grant any payment, treatment, benefit, waiver or
exclusion prohibited by subsection (1) is invalid.”
Current Labour Law
23
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
• Clause 5 did not require an employee to refer the dispute
to the bargaining council. It therefore did not impact on
the contractual provision relating to private arbitration.
• There was no waiver of a right.
Current Labour Law
24
Challenging private arbitration clauses:
Bargaining Councils
Carlbank Mining Contract (Pty) Ltd v NBCRFI [2010] 11
BLLR 1142 (LC)
• The employee had not been treated less favourably. In
this instance the benefit or treatment for the purposes of
section 199(1)(b) is not to the right to refer a dispute to a
bargaining council – it is to have an employment dispute
expeditiously determined by an independent third party
at no cost. The private arbitration agreement met this
test.
See also MEC, Dept of Health v Van Der Walt [2011] 3
BLLR 258 (LC).But see SACWU obo Stinise v Dakbor
Clothing (Pty) Ltd & others (2007) 28 ILJ 1318 (LC).
Current Labour Law
25
Practice and Procedure:
Process-related unreasonableness:
Mzi Gaga v Anglo Platinum Ltd and Others (unreported
JA44/10 dated 20/10/2011)
“[44] Where a commissioner fails properly to apply his mind
to material facts and unduly narrows the enquiry by
incorrectly construing the scope of an applicable rule,
he will not fully and fairly determine the case before
him. The ensuing decision inevitably will be tainted by
dialectical
unreasonableness
(process-related
unreasonableness), characteristically resulting in a
lack of rational connection between the decision and
the evidence and most likely an unreasonable
outcome (substantive unreasonableness).
Current Labour Law
26
Practice and Procedure:
Process-related unreasonableness:
Mzi Gaga v Anglo Platinum Ltd and Others (unreported
JA44/10 dated 20/10/2011)
There will often be an overlap between the ground of
review based on the failure to take into consideration
a relevant factor, and one based on the
unreasonableness of a decision. If a commissioner
does not take into account a factor that he is bound to
take into account, his or her decision inevitably will be
unreasonable. The flaw in process alone will usually
be sufficient to set aside the award on the grounds of
it being a latent gross irregularity, permitting a review
in terms of section 145(1) read with section
145(2)(a)(ii) of the LRA.”
Current Labour Law
27