IN THE LABOUR COURT OF LESOTHO
LC/REV/107/2012
A0264/2012
HELD AT MASERU
In the matter between:
FAHHIDA SUPERMARKET (PTY) LTD
APPLICANT
And
IKHETHELENG SIBOLLA
THE ARBITRATOR DDPR (MR. KALAKE)
1st RESPONDENT
2nd RESPONDENT
JUDGMENT
Hearing Date: 30th October 2013
Application for review of the 2nd Respondent arbitral award.
Applicant having raised four grounds of review. Court finding merit
in only one of the grounds raised – Court finding that Arbitrator did
not consider the explanation for failure to attend – failure to
consider explanation amounts to a gross irregularity warranting
the granting of a review application. Review being granted and
Court directing that the matter be remitted to the DDPR for a
determination of the rescission application. No order as to costs
being made.
BACKGROUND OF THE ISSUE
1. This is an application for the review of the 2nd Respondent
arbitral award. it was heard on this day and judgment was
reserved. Applicant was represented by Adv. Ramohlanka while
1st Respondent was represented by Adv. ‘Nono. The brief
background of this matter is that, 1st Respondent had referred
a claim for unpaid wages with the DDPR. The matter proceeded
in default of Applicant and an award was subsequent thereto
made in favour of 1st Respondent. Applicant then filed an
application for rescission of the said award. The rescission
application was also dismissed in default of Applicant, leading
to the initiation of the current review proceedings.
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2. Four grounds of review have been raised on behalf of
Applicant, in terms of which it seeks to the have the 2nd
Respondent arbitral award reviewed, corrected or set aside.
Both parties were given the opportunity to make representation
and having considered their submissions, Our judgment is
therefore in the following.
SUBMISSIONS AND FINDINGS
3. It was submitted on behalf of Applicant that the learned
Arbitrator had erred in that He did not consider the options
prescribed under section 227(8) of the Labour Code
(Amendment) Act 3 of 2000, in dismissing the rescission
application. It was further submitted that in terms of the said
section, the learned Arbitrator had an option to either
postpone, dismiss or grant the matter in default. It was added
that rather than to consider the said options, He simply
outlined them and then arbitrarily elected to dismiss the
matter.
4. In reply, it was submitted that the learned Arbitrator had
considered all the options, prior to the decision to dismiss the
referral. The Court was referred to paragraphs 3, 4 and 5 of the
arbitral award, where the learned Arbitrator had reasoned his
conclusion. It was submitted that among His reasons to
dismiss, was the lack of a convincing explanation for failure to
attend and the casual attitude of Applicant in the matter. It
was concluded that the decision was therefore fair under the
circumstances.
5. We are in agreement with 1st Respondent that the learned
Arbitrator considered all the options laid out under section
227(8) of the Labour Code Act (supra). While He may have
outlined them at paragraph 5 of the arbitral award, but His
election to dismiss was reasoned. As righty pointed out by 1st
Respondent, the reasons for the elected option are reflected
under paragraphs 3, 4 and 5 of the arbitral award. We
therefore find no irregularity in the conduct to the learned
Arbitrator and accordingly dismiss this review ground.
6. The second ground of review was that the learned Arbitrator
had erred in that He did not consider the explanation given on
behalf of Applicant for failure to attend the proceedings. It was
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submitted that the Human Resources Manager had been sent
to convey the message that one Mr. Abdulla, who was handling
the matter, could not be able to attend due to illness. It was
argued that had this explanation been considered, it would
have influenced the learned Arbitrator to find otherwise.
7. In reply, 1st Respondent submitted that explanation was
considered by the learned Arbitrator hence the finding that it
was not sufficient to warrant its granting. The Court was
referred to paragraph 3 of the arbitral award recorded as
follows,
“She neither advanced any convincing reasons of the reason
that she sought his application to be postponed.”
It was added the explanation given was tantamount to no
explanation at all as the person who offered it had no authority
to appear on behalf of Applicant.
8. At paragraph 3 of the arbitral award, the learned Arbitrator
notes the following,
“Only a certain Mrs ‘Matseliso Nkhetse appeared as the
applicant’s Human Resource Officer and intimated before the
tribunal that she came to seek a postponement alleging that a
certain Mr. Abdulla was sick and could not attend the hearing.
However, Mrs. Nkhets’e did not have the authority to represent
the applicant, neither had she filed it ... She neither advanced
any convincing reasons of the reason that she sought his
application to be postponed ”
9. Having noted the explanation given for failure to attend on the
part of the said Abdulla, the learned Arbitrator ignores same
and proceeds to address the issue of the authority to represent
of a messenger and eventually decides to dismiss the referral.
Clearly, the explanation given was ignored as the reason for the
dismissal of the referral has no connection at all to the given
reason. The learned Arbitrator does address the issue of the
alleged incapacity of Applicant’s representative. Essentially the
learned Arbitrator ignored the real issue before Him.
10. In the case of Thabo Mohlobo & others v Lesotho Highlands
Development Authority LAC/CIV/A/05/2010, the Court held
that failure by presiding officers to direct their thoughts to the
relevant data or relevant principles as well as their reliance on
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irrelevant considerations amounts to an irregularity worthy or
being reviewed. We are therefore find that the learned
Arbitrator committed an irregularity contemplated by the above
authority, in that rather than to consider the explanation for
failure to attend, He concentrated on the absence of an
authority to represent. Further, that if the explanation given
had been considered, it may have altered the decision of the
learned Arbitrator. We therefore find that this is an irregularity
so grave that it warrants interference with the award.
11. The third ground of review was that the learned Arbitrator
had committed an irregularity by ignoring the explanation
given for failure to attend due to the absence of an authority to
represent by the Human Resources Officer. It was submitted in
support that the Human Resources Officer had been sent to
merely convey the message that the person who had been
properly elected to represent Applicant, was indisposed. It was
added that there is no requirement that a messenger who is
not a representative must submit an authority to represent
when conveying a message on behalf of the representative.
12. In reply, it was submitted that the learned Arbitrator was
right in finding that the representative needed an authority to
represent when she conveyed the message about the incapacity
of Applicant’s representative. It was added that the learned
Arbitrator could not have been expected to rely on
communication from a person with no right of audience. It was
further submitted that the said document would have served
as proof that the Human Resources Officer had been duly
authorised to communicate the information that she did to the
tribunal.
1. We wish to note that it is Our view that this grounds is an
appeal as opposed to a review ground. We say this because, it
seeks to challenge the decision of the learned Arbitrator to
require an authority to represent from a messenger. There is
no allegation of an irregularity in the conduct of the learned
Arbitrator during the proceedings, nor do We find any. The
distinction between an appeal and a review was made in the
case of JD Trading (Pty) Ltd t/a Supreme Furnishers v M.
Monoko & others LAC/REV/39/2004, as follows,
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“Where the reason for wanting to have the judgment set aside is
that the court came to the wrong conclusion on the facts or the
law, the appropriate remedy is by way of appeal. Where, on the
other hand, the real grievance is against the method of the trial,
it is proper to bring a case on review. An appeal is thus in reality
a re-evaluation of the record of proceedings in the court a quo.”
(Also see Thabo Mohlobo & others v Lesotho Highlands
Development Authority LAC/CIV/A/05/2010)
13. In view of the above authority, this ground cannot sustain
for want of jurisdiction as this is only vested with review and
not appeal powers. However, We wish to comment on the
submissions made, in order to set the position of the law
straight, on the issue of an authority to represent. In the
proceedings before the DDPR, a representative is a person
appointed in terms of section 228A of the Labour Code
(Amendment) Act 3 of 2000. It is thus only in circumstances
contemplated under section 228A of the Labour Code Act
(supra), that an authority to represent is necessary.
14. In casu, the Human Resources Officer was not a
representative as she had merely appeared to inform the
learned Arbitrator of the inability of the person appointed, in
terms of section 228A of the Labour Code Act (supra), to
appear. This was clearly communicated to the learned
Arbitrator as he has also acknowledged the communication in
His arbitral award. Consequently, the Human Resources
Manager was not in law required to submit an authority to
represent.
15. The last ground of review was that the learned Arbitrator
failed to consider the Applicants pleadings before dismissing
the application for rescission for want of prosecution. It was
submitted that, in particular, the learned Arbitrator ought to
have considered the prospects of success in the matter.
Further that if He had, He would have been inclined to
postpone the matter on account of fairness to both parties.
16. In reply, it was submitted that in terms of section 227(8) of
the Labour Code Act (supra) as well section 19 (1) of Labour
Code (DDPR Regulations) of 2001, there is no requirement that
where a party has defaulted, the learned Arbitrator must
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consider the pleadings before resolving to dismiss the matter. It
was added that the provisions of these legal instruments are
clear that failure to attend requires an election between
dismissal, granting and postponement.
17. We are in agreement with 1st Respondent that there is no
legal requirement that the pleadings must be considered when
acting in terms of section 227 (8) of the Labour Code Act (supra)
and the DDPR Regulations (supra). Rather, the learned
Arbitrator is obliged to consider the circumstances
surrounding the failure to attend on the side of either party,
before making an election under these instruments. It is only
where no consideration of the circumstances has been made
that the learned Arbitrator may be held to have committed an
irregularity. Consequently, this ground fails.
AWARD
We therefore make an award in the following terms:
a) The application for review is granted;
b) The matter is remitted to the DDPR for a determination of the
rescission application.
c) That this award must be complied with within 30 days of
receipt herewith; and
d) There is no order as to costs.
THUS DONE AND DATED AT MASERU ON THIS 11th DAY OF
NOVEMBER 2013.
T. C. RAMOSEME
DEPUTY PRESIDENT (a.i)
THE LABOUR COURT OF LESOTHO
Mr. S KAO
MEMBER
I CONCUR
Mrs. L. RAMASHAMOLE
MEMBER
I CONCUR
FOR APPLICANT:
FOR RESPONDENT:
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ADV. RAMOHLANKA
ADV. ‘NONO