Super Group Trading (Pty) Ltd t/a Supergroup Dealerships v NUMSA obo Carolus and Others (LC) (unreported case no C06/2021, 22-7-2022) (Leslie AJ)

The first respondent, trade union referred an unfair dismissal dispute to the bargaining council, the Dispute Resolution Centre of the Motor Industry Bargaining Council. Arbitration was set down for 10 December 2020. On 8 December 2020, the union wrote to the bargaining council and applicant, advising that the official who was scheduled to attend the arbitration had taken ill and, therefore, a request for postponement was made. In addition, the union stated that all union officials were engaged in other matters on the day. Attached to the letter was a medical sick note confirming the trade union official was booked off.

On the same day the applicant responded, opposed the request for postponement.

On 10 December 2020, the applicant’s attorney, together with witnesses, attended the arbitration. Neither the dismissed employee nor any official from the union were in attendance.

On 24 December 2020, the arbitrator delivered a ruling postponing the matter. In his ruling the arbitrator found that it stood to reason that the employee did not attend the arbitration having been informed of the official’s medical incapacity had hence his absence was not wilful.

Presumably, before the arbitration commenced, alternatively before it concluded; the applicant launched an application to have the ruling set aside. The matter was unopposed.

At the hearing the court began by dealing with s 158(1B) of the Labour Relations Act 66 of 1995, which states:

‘The Labour Court may not review any decision or ruling made during conciliation or arbitration proceedings conducted under the auspices of the Commission or any bargaining council in terms of the provisions of this Act before the issue in dispute has been finally determined by the Commission or the bargaining council, as the case may be, except if the Labour Court (LC) is of the opinion that it is just and equitable to review the decision or ruling made before the issue in dispute has been finally determined’.

In terms of this section, the general rule is that the LC would refrain from hearing an application to review a ruling, until such time as the dispute itself (be it an unfair dismissal or unfair labour practice dispute) had been finally determined and an award to such an effect had been delivered. The purpose of the section was to deter parties bringing piecemeal review applications which ultimately resulted in arbitrations being stayed pending the review of a ruling being finalised.

The court, however, noted that the exception to the general rule was when there were exceptional circumstances, which rendered the court’s intervention, prior to the arbitration being finalised, just and equitable.

As to the notion of ‘just and equitable’, the court aligned itself with a Constitutional Court decision (Electoral Commission v Mhlope and Others 2016 (5) SA 1 (CC)) wherein the court held: ‘Whatever considerations of justice and equity point to as the appropriate solution to a particular problem, it may justifiably be used to remedy that problem.’

Referring to the bargaining council’s rules, wherein it is stated that an arbitrator must dismiss a dispute if the referring party does not attend arbitration proceedings and adopting the approach of just and equitable as set out above, the court held:

‘I am satisfied that it would be just and equitable to entertain the review application at this stage of the proceedings. But for the postponement, the matter would have been dismissed on 10 December 2020. If the applicant were to be compelled, nevertheless, to await the final outcome of the arbitration before approaching this court for relief, it would effectively lose its right to challenge the postponement ruling. For all intents and purposes, the postponement ruling would be moot. This distinguishes this case from other interlocutory rulings where, for example, an arbitrator has determined that he or she has jurisdiction, which can always be revisited by a reviewing court once the merits of the dispute have been finally determined.’

The court went further to consider the merits under circumstances where it was within the arbitrator’s discretion to grant postponement or not.

Having been alive to the fact that the applicant opposed the postponement, yet by simply not attending proceedings, the first respondent’s approach, as stated by the court, was that the postponement was going to be granted as a matter of course. However, this was an incorrect attitude when requesting postponement. A request for postponements is not for the taking and is always subject to the discretion of the decision-maker.

In the absence of the employee or any other official from the union, the arbitrator’s findings were purely speculation. Additionally the arbitrator simply accepted the union’s version that all its other officials were not available to attend the arbitration, as being factually correct.

In conclusion the court held:

‘It makes a mockery of the dispute resolution process that a postponement could have been granted in these circumstances. The arbitrator’s ruling to this effect was so unreasonable that no reasonable decision-maker could have made it, and it falls to be reviewed and set aside on this ground.’

The postponement ruling was set aside and replaced with a finding that the applicant’s unfair dismissal dispute be dismissed. There was no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2022 (Oct) DR 37.