LAC/REV/74/05
IN THE LABOUR APPEAL COURT OF LESOTHO
HELD AT MASERU
In the matter between
LESOTHO HIGH LANDS DEVELOPMENT AUTHORITY APPLICANT
AND
THE DIRECTORATE FOR DISPUTE
PREVENTION AND RESOLUTION 1st RESPONDENT
MATS'ELISO MAKHALEMELE 2nd RESPONDENT
CORAM: THE HON. MR. ACTING JUSTICE K.E. MOSITO
ASSESSORS: MR J. Tau
MR M. Makhetha
HEARD: 30 August 2006
DELIVERED: 5 SEPTEMBER 2006
SUMMARY
Review of Arbitral proceedings - Labour and employment matters -Application Absolution from instance -Arbitrator Not appreciating the
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nature of matter her - Effect thereof - Court having not been addressed on costs - Application dismissed - no order as to costs.
JUDGEMENT
This is an application for an order in the following terms:
Directing and Ordering the 1st respondent to dispatch a record of proceedings (both the manuscript and tape recorded proceedings) in the case A0343/04, a matter of the Directorate of Dispute Prevention and Resolution, to the Registrar of the above Honourable Court within fourteen (14) days hereof.
Directing and Ordering the 1st respondent to dispatch the decision on the merits canvassed by both the applicant and the 2nd respondent in the proceedings.
Declaring that the decision of the 1st respondent in A0323/04 delivered on the 19th April 2005 as an interlocutory decision warranting that the decision on the merits canvassed be delivered.
Declaring that the decision of the 1st respondent in A0323/04 to refer the matter to the Labour Court to decide issues that deal with discrimination and victimisation irregular without delivering a decision on the issue of underpayments as a result 1st respondent's
decision should be reviewed and set aside.
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That the 2nd respondent pay costs hereof in the event of opposition.
That the applicant be granted such further and / or alternative relief.
The facts of this application are straightforward and are not in dispute. They are as follows:
On or about the 24th March 2004, 2nd respondent filed a claim of underpayments under case number AO323/2004 with the 1st respondent.
The matter was scheduled for hearing before Arbitrator Monoko.
2nd respondent later filed an application for the Recusal of Arbitrator Monoko, claiming that Monoko showed glimpses of bias against her and had prejudiced the issues in her case. That, she (2nd respondent) became apprehensive that the Arbitrator would not have an open mind on the issues of underpayments brought before him, and shall stand no chance of succeeding in the matter.
On the 24th November 2004, the award in the application for Recusal was entered in favour of the 2nd respondent.
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At the time when applicant had prepared itself, to defend and argue the merits on the issues of underpayments, 2nd respondent filed yet another application under the same case number. This time around she filed and application for Joinder of Issues. ' The source of complain in the application was underpayments being borne out of discrimination mated out against her by the applicant and thus charged that applicant was involved in Unfair Labour Practices against her. In essence she complained that she was being underpaid as a result of discrimination practices against her.
Applicant opposed the application and the matter was argued before Arbitrator Malebanye on the 05th March 2005. Applicant's Counsel argued that the DDPR had no jurisdiction to entertain or to hear an application that dealt with issues of Discrimination and of Unfair Labour Practice. That the right forum was the Labour Court of Lesotho. The DDPR upheld this. objection, (see page 10 of the record)
The Arbitrator (Malebanye) immediately after dismissing the application, demanded the parties to proceed on the merits of the main case of underpayments. Applicant's Counsel applied for postponement and asked the Arbitrator to give this matter a chance for negotiations for amicable settlement out of Court, the application was granted, (see pages 10 and 33 of the record)
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The negotiations for amicable settlement failed and on the 24th March 2005 the matter was heard before Arbitrator Malebanye.
2nd respondent evidence was challenged and the defence of estoppel was put to her. It was put to her that she was estopped from filing a claim of underpayments a year after she had been offered, accepted and enjoyed the fruits of payments by the applicant that were meant to remedy and settle the issue of underpayments. It was put to her that by her conduct she had acquiesced the payments made to her after one year period and that the filing of the claim was improper.
On or about March 2005, Arbitrator Malebanye on resuming the proceedings asked Counsel for applicant to lead applicant's defence.
An application for absolution from the instance was filed. It was argued that the 2nd respondent had failed to prove that applicant
had underpaid her. The DDPR's attention was brought to the fact that no evidence was brought to its attention proving underpayments. It was argued that 2nd respondent failed to discharge the evidential burden that reposed on her. The onus of proof was not discharged
either.
The Arbitrator was also requested to look into the issue of estoppel as an objection (see page 65 of record) The matter was adjourned and the Arbitrator said that she was going to consider the application for absolution from the instance and
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the objection of estoppel, and that she would deliver the judgement in due course.
On the 17th day of April 2005 applicant received a copy of an award from DDPR. Arbitrator Malebanye had delivered the award. This award dismissed 2nd respondent's application on the issue of discrimination and Unfair Labour Practice. No ruling on the merits
of the matter of underpayments had been made. In other words the application for absolution from the instance and objection on the issue of estoppel had not been considered. The award gives the 2nd respondent an opportunity to file a case of underpayments again in the Labour Court, this was an irregularity committed by the Arbitrator.
Section 228F (3) provides that, the Labour Appeal Court may set aside an award on any grounds permissible in law and any mistake of law that materially affects the decision. The phrase, "any grounds permissible in law " is not defined in the Act. Against this background it is necessary to consider what this phrase entails for purposes of this Court, thereby determining the grounds upon which the Labour Appeal Court is empowered to review the proceedings of the DDPR (and also those of the Labour Court).
In JD Trading (PTY) LTD t/a Supreme Furnishers v M. Monoko and two Others LAC/REV/39/04, (delivered on the
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same date as the present judgement), this Court considered the sources and the extent of its power of review. It pointed out inter alia that, Section 228F (3) provides that, the Labour Appeal Court may set aside an award on any grounds permissible in law and any mistake of law that materially affects the decision. It went on to considered a number of authorities such as, Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A-E , and held in line therewith that, in order to establish review grounds it may have to be shown that the tribunal failed to apply its mind to the relevant issues in accordance with the "behests of the statute and the tenets of natural justice" (see National Transport Commission and Another v Chetty's Motor Transport (Pty) Ltd 1972 (3) SA 726 (A) at 735F-G; Johannesburg Local Road Transportation Board and Others v David Morton Transport (Pty) Ltd 1972 (3) SA 726 (A) at 895B-C; Theron en Andere v Ring van Wellington van die NG Sendingkerk in Suid-Afrika en Andere 1972 (3) SA 726 (A) at 14F-G). Thus in Johannesburg Stock Exchange and Another v Witwatersrand Nigel Ltd and Another 1988 (3) SA 132 (A) at 152A-E.
We now turn to the merits of the present case. This is a typical example of such a case. The arbitrator simply failed to appreciate
the nature of the issue she had to decide, and consequently, she failed to apply her mind to the relevant
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issues in accordance with the "behests of the statute and the tenets of natural justice". This was a clear misdirection.
We do not believe that the justice of this matter can be met by referring the matter to the same arbitrator again.
The awards of the arbitrator are consequently hereby reviewed and set aside.
This Court orders that, the matter is sent back to the DDPR for consideration de novo by a different arbitrator.
We do not believe that the second respondent is to blame for the arbitrator's misdirection to warrant being punished with costs.
Costs will be costs in the cause.
K. E. MOSITO
JUDGE OF THE LABOUR APPEAL COURT
Mr. J. Tau I agree
Mr. M. Makhetha I agree
DATED AT MASERU THIS 5th DAY OF SEPTEMBER 2006
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For the applicant: Advocate. S. Mathe
For the first and second respondents: Advocate. B. Thabane