Muller v Public Investment Corporation (SOC) Limited (PIC) and others
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Moshoana J |
| Judgment Date | 23 May 2022 |
| Citation | 2023 JDR 2379 (LC) |
| Hearing Date | 15 February 2022 |
| Docket Number | JR 3021/19 |
| Court | Labour Court |
Moshoana J:
Introduction
2023 JDR 2379 p2
Moshoana J
The legislature in section 138 (7) of the Labour Relations Act (LRA) [1] decreed that within 14 days of the conclusion of the arbitration proceedings, the commissioner must issue an arbitration award with brief reasons. This notwithstanding, there is a growing tendency for commissioners to render what appears to be erudite and scholarly arbitration awards. In casu, the impugned arbitration award comprises of 40 pages. This in a matter that involves a simple dispute of an alleged unfair labour practice. As it shall be demonstrated later in this judgment, some of the issues canvassed in the impugned arbitration award were not necessary and did not come for decision. The message this judgment sends is that it remains the solitary duty of a commissioner to resolve a dispute, which the parties present before him or her.
That said, this is a review application brought by Mr Mervin Muller (Muller), the former employee of the Public Investment Corporation (SOC) Ltd (PIC). Muller seeks to review and set aside an arbitration award issued by Commissioner Lebea (Lebea) in terms of which, Lebea found that the unfair labour practice alleged by Muller against the PIC based on the alleged unfairness of the directive issued by the Minister or the Minister’s alleged unfair conduct was dismissed due to non-joinder. Lebea further found that the alleged unfair labour practice against the PIC based on the alleged direct conduct of the PIC is dismissed.
Background facts
To a greater degree, the facts pertinent to this dispute are common cause. Muller was employed by the PIC as Executive Head: Private Equity and Structured Investment Products. His employment as such commenced on 15 March 2017. Prior thereto, he was employed by the PIC for a period spanning over 10 years.
2023 JDR 2379 p3
Moshoana J
On 4 December 2018, the erstwhile Minister of Finance, the Honourable Tito Mboweni (Minister) revised the PIC’s proposed Short Term Incentives (STI) allocated to the individual executive managers of the PIC. Additionally, the Minister deferred the approval of the Long Term Incentives (LTI) which were payable in December of 2018. In respect of Muller, the STI was revised from an amount of R1 849 999.71 to R989 229.71. That revision short-changed Muller by an amount of R860 700.00. Additionally, an amount of R2 416 880.00, in respect of the LTI was deferred and not paid to him when it became due in December 2018.
The revision and the deferment resulting in the short-payment of the STI and the non-payment of the LTI aggrieved Muller. He lodged an internal grievance, which was not resolved to his satisfaction. Resultantly, he resigned from his position on 14 March 2019 and alleged that the revision and the deferment, which led to the non-payment of the STI balance and the LTI, amounted to a breach of his contract of employment and reserved his rights to sue the PIC for damages. Prior to his resignation, on 6 March 2019, Muller had referred a dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA) and alleged an unfair labour practice in relation to the payments of the STI and LTI (the benefits).
Conciliation failed to resolve the dispute. Muller requested the CCMA to resolve the dispute through arbitration. Lebea was appointed by the CCMA to resolve the dispute through arbitration. Arbitration happened on 17 July; 31 October and 01 November 2019 respectively. On 19 November 2019, Lebea published the impugned arbitration award. As indicated above, Muller was aggrieved and he launched the present application. The PIC duly opposes the present application.
Grounds of review
2023 JDR 2379 p4
Moshoana J
Muller contends that the finding that the Minister should be joined is a reviewable irregularity and a material error of law. Additionally, he contends that it was not competent of Lebea to dismiss his case due to non-joinder. Lebea also committed an error in finding that no unfair labour practice has been committed in relation to the direct conduct of the PIC.
The PIC contends that there is no merit in the grounds punted for by Muller. Accordingly, the impugned arbitration award is one that a reasonable decision maker may reach regard being had to the evidence presented before Lebea.
Evaluation
The parties outlined the road map of the dispute in a pre-arbitration agreement concluded on 4 June 2019. Two issues were brought for the decision of Lebea; namely (a) the jurisdictional powers of the CCMA; and (b) whether there is an unfair labour practice as defined in section 186 (2) (a) of the LRA. Muller sought as a relief the payment of the STI and the LTI. On the other hand, PIC sought the dismissal of the dispute. On 22 August 2019, Lebea in a written ruling resolved the dispute over the jurisdictional powers. He concluded that the CCMA retained jurisdiction to arbitrate the dispute – whether there was an unfair labour practice as defined in section 186 (2) (a) of the LRA. This ruling was not challenged by the PIC.
A pre-arbitration agreement binds the parties and the commissioner in so far as the dispute is concerned. In Telkom SA SOC Limited v Van Staden and Others [2] , the Labour Appeal Court (LAC) concluded that:
A pre-trial agreement is a consensual document which narrows down the issues in dispute between the parties so as to limit the scope of litigation. Such an agreement binds the parties and the court in the same way as pleadings. . .
2023 JDR 2379 p5
Moshoana J
Given the status of a pre-trial agreement as a contract entered into between the parties, I am satisfied that the approach taken in CEPPWAWU is correct. . .”
In light of the above legal position, Lebea was not authorised to determine the issue of non-joinder. Having done so, he committed a gross irregularity, which vitiates the arbitration award.
Is non-joinder raised and destructive of the claim of Muller?
Assuming that Lebea was authorised to determine the issue of non-joinder, the veritable question is whether non-joinder was pleaded or raised and whether its success obliterates the case of Muller. At the CCMA, there are no pleadings. Owing to that, there is no...
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