Lesotho Highlands Development Authority v Mohlobo and Others (LC/REV 9 of 12) [2012] LSLC 11 (22 October 2012)

IN THE LABOUR COURT OF LESOTHO LC/REV/09/12 A0649/2008 HELD AT MASERU In the matter between: LESOTHO HIGHLANDS DEVELOPMENT AUTHORITY APPLICANT And THABO MOHLOBO & 19 OTHERS RESPONDENTS JUDGMENT Date: 20th September 2012 Application for review of arbitration award. Court finding other grounds as constituting an appeal disguised as a review. Applicant failing to substantiate grounds qualifying as review grounds. Review application being dismissed. Respondent failing to justify an award of costs in favour. Court making no order as to costs. BACKGROUND OF THE ISSUE 1. This is an application for the review of an arbitration award of the DDPR. It was heard on the 20th September 2012 and judgment was reserved for a later date. In this application, Applicant seeks to have the arbitration award handed down on the 12th December 2011, reviewed and set aside. This application was duly opposed and both parties made representations. At the commencement of the proceedings, it was brought to the attention of the Court that there was a point in limine raised by Respondent. The point in limine was to the effect that the grounds raised by Applicant were not review but appeal grounds. However, parties made a special request that, rather than to adopt the convention approach of arguing the point in limine separately from the merits, they would argue them together in their submissions. It is on these bases that the review was heard on this date. 1 | P a g e SUBMISSIONS 2. There are six grounds of review of the award in referral A0649/2008, that have been raised on behalf of Applicant, as follows: “29.1 As a matter of law on the evidence, the material factual conclusions of the Arbitrator are so manifestly wrong that they are conclusions which no reasonable court could have arrived at. Accordingly, the said conclusions constitute a mistake of law as contemplated by section 228F(3) of the code; and/or 29.2 The process of reasoning followed by the Honourable Arbitrator is so flawed that she did not properly exercise the process entrusted to her; and/or 29.3 On the evidence before her, the factual conclusions that she arrived at, caused her to reach legal conclusions which resulted in her award not being in accordance with the law; and/or 29.4 In deciding the facts of the matter, she failed to take material evidence into account, alternatively she had regard to and relied upon evidence that was irrelevant, all of which resulted in factual conclusions which no reasonable court could have arrived at; and/or 29.5 The award and determination reached on the correct acts, is so wrong that it is unfair and hence the Arbitrator acted outside her authority and mandate as conferred upon her by section 228C of the Code. This section enjoins her to determine the dispute fairly. As a result of her misdirection in this regard, her award constitutes misconduct rendering the award a nullity; and/or 29.6 The Honourable Arbitrator, in arriving at her conclusions did not properly apply her mind to the matter. In particular, she failed to appreciate the relevant and credible facts and the law or she failed to direct her thoughts to the relevant and truthful evidence or the relevant principles and/or she relied on relevant considerations and/or her approach was arbitrary and hence the gross irregularity.” In amplification of these grounds, Applicant has not made any specific submissions to each and every one of them but has rather generalised their submissions, in the points below. As a result, I will deal with them in the generalised manner adopted by Applicant. 3. Applicant submitted that the learned Arbitrator’s conclusions are so wrong that no reasonable Court could have arrived at. The premises of this argument is that whereas there was evidence that Respondent herein were employees of the Government of Lesotho, the learned Arbitrator nonetheless made a factual conclusion that they were not, but the employees of Applicant herein. It was 2 | P a g e argued that this constitutes a reviewable ground. Reference was made to the conclusions of the Labour Appeal Court in Mantsoe vs. R LAC (1990) 193 at 195,where the Court had this to say, “ The only conceivable basis on which an attack on the factual conclusions of the court a quo “involve a question of law” would be if these were conclusions which no reasonable court could have arrived at.” 4. Respondent replied that Applicant’s arguments are grounds for appeal and not a review, which jurisdiction this Court does not have. It was argued that these grounds are purely based on the decision of the learned Arbitrator, which Applicant is unhappy about. Respondent further argued that without admitting that the grounds raised are review grounds, there was evidence to the effect that Respondents herein were employees of Applicant and not the Lesotho Government. It was further argued that in fact, no evidence at all was availed to show that Respondents were employees of the Lesotho Government as suggested. 5. Review applications are brought before this Court in terms of section 228F(3) of the Labour Code Order 24 of 1992 as amended. In terms of this section, “The Labour Court may set aside an award on any grounds permissible in law and any mistake of law that materially affects it.” An attempt has been made in several judgments of this Court and other superior Courts to interpret the provisions of section 228F(3), and in particular what is meant by “any grounds permissible in law.” In the case of Lesotho Electricity Corporation vs. Ramoqopo & Others LAC/REV/121/2006, the Court concluded that the phrase should be interpreted to mean various common law grounds of review. 6. It is important at this juncture to define what is meant by a review. This subject is not new as it has been dealt with previously by this court when it sought to highlight the distinction between an appeal and a review. A review is thus a process that is concerned with the process or the procedure in which the conclusions were made (see Thabo Mohlobo & Others vs. Lesotho Highlands Development Authority LAC/CIV/A/05/2010). The effect of Thabo Mohlobo case and Lesotho Electricity cases (supra), is to suggest that the phrase any grounds permissible in law must be interpreted within the context of the definition of a review. That is to say, any ground permissible in law must relate to the process or procedure adopted by the decision maker in arriving at the conclusions that form the subject of challenge. This therefore means that even the argument that that the Court arrived at a conclusion that no reasonable 3 | P a g e court could have arrived at, must be related to the processes and procedure of arriving at the conclusion in issue. 7. In the case at hand, no reference has been made by Applicant to the any processes or procedural irregularity on the part of the leaned Arbitrator. The premise of Applicant’s argument has simply been that the conclusions were so unreasonable that no court could have arrived at. This in my opinion means that a different Court in the same circumstances could have reached a different conclusion. This clearly indicates a dissatisfaction with the conclusions of the leaned Arbitrator. This is clearly not a ground for review but that of appeal. In Coetzee vs. Lebea NO and Another (1999) 20 ILJ, 129 (LC) at page 130, the court concluded that where the argument is that, on the basis of the present facts a different decision could have been arrived at, that constitutes a ground for appeal. This case was cited with approval in the case of Lesotho Highlands Development Authority vs. Rosalika Ramoholi and Another LC/REV/33/2012. Consequently, this ground fails on this premise alone. 8. It was further argued on behalf of Applicant that the learned Arbitrator relied on section 3 of the Labour Code, to come to the conclusion that Respondents were employees of Applicant, yet section 3 was never argued or relied upon by any of the parties. Applicant maintained that it was thus wrong for her, to have relied on legal considerations for which no argument was heard. It was further submitted that even in assuming that it was legally permissible for the learned Arbitrator to base her conclusion on the provisions of section 3 of the Labour Code, her interpretation of the section was so wrong that it led her into an incorrect conclusion. Respondent replied that it is not true that the definition of an employee was not argued or that it was a misdirection of law on the part of the Learned arbitrator to make the conclusion that she made. 9. In reviewing the decision of an inferior court, among the considerations to make is whether the decision reached was rationally justifiable. This principle was highlighted in the case of County Fair Foods (Pty) Ltd vs. Commissioner for Conciliation and Others 1999 20 ILJ 1701 and cited with approval in the case of Global Garments vs. Mosemoli Morojele LC/REV/354/2006. This in essence means that the decision maker in an inferior Court, must provide justification for the conclusions that he or she makes. In my view, I do not find any irregularity in the approach of the Learned Arbitrator to have made reference to section 3 of the Labour Coder Order (supra), to justify her decision, that Respondents were employees of Applicant. I have gone through the record of 4 | P a g e proceedings before the DDPR as well as the arbitration award and have found that the issue of whether Respondents were employees or not, was raised and argued. Therefore, I find no irregularity in this regard. 10. It was furthermore submitted that the learned Arbitrator, in deciding that Respondents were employees of Applicant, was wrong to have concluded that they were ordinary or normal employees of Respondent. She ought to have found that they were a special group or class of Respondent employees, on whom the Human Resources Management manual did not apply. It was also submitted that there was truthful and reliable evidence to this effect. Respondent replied that there was no evidence to suggest any classifications of employees within the LHDA as put by Applicant. Further, it was submitted that there was no evidence that Respondents had been exempted from the application of manual. Consequently, there was no basis for the learned Arbitrator to have concluded that the manual did not apply to Respondents. 11. It was also submitted that should it be found that the learned Arbitrator was correct in finding that Respondents were Applicant employees and that the Human Resources Management manual applied to them, the learned Arbitrator misdirected herself in holding that Respondents were entitled to payment of mountain allowance/deprivation allowance of M1800.00. It was further argued that the learned Arbitrator should have found on proper reading of clause 20.3.4 of the manual, that Respondents were not entitled to mountain allowance or it did not apply to them. Respondent rejected this argument on the ground that it does not constitute a ground for review but an appeal. It was further stated that all evidence surrounding this argument were raised and deliberated before the court a quo so that there was no misdirection on the part of the learned Arbitrator. 12. My understanding of these grounds of review is that Applicant is dissatisfied with the conclusions of the learned Arbitrator about the status of Respondent and their relationship with the Human Resources Management manual as well s their entitlement to mountain/deprivation allowance. There is nothing to suggest an irregularity on the part of the learned arbitrator in the processes or procedures she adopted to formulate this conclusion. Applicant is simply making submissions based on what its anticipated outcome was in relation to these issues. I have satisfied myself that all these issues were raised and argued in the initial arbitration hearing and that the learned Arbitrator considered them in making her conclusion. I have already pronounced myself in relation to the dissatisfaction of Applicant about the conclusion of the 5 | P a g e learned Arbitrator and therefore see no point in reiterating myself. As a result and in the same vein, these grounds fail as they are appeal and not review grounds. I therefore find no reason to deliberate on it further. 13. It also argued that there is clause 2.4.2 of the manual which provides that “where these policies and procedures are in conflict with the terms and conditions of contracts for employees, the contracts shall prevail, unless agreed otherwise between such employees and the LHDA.” 14. In the context of this clause, Applicant argued that the learned Arbitrator overlooked or ignored the correct facts which showed that the terms of the contracts and the manual conflicted, in that the contracts provided for M300.00 while the manual provided for a different amount. Applicant further argued that the learned Arbitrator should have applied the express terms of the provision of the manual in which case, she would have dismissed Respondent claims. Further, it was submitted that the learned arbitrator side stepped clause 2.4.2 of the manual by suggesting contrary evidence that employees contracts on mountain allowance came later than the clause conferring upon them the right to mountain allowance of M1,800.00. Furthermore, Applicant submitted on this basis the learned Arbitrator came to the wrong conclusion that a right given cannot be taken away without the concerned employees consent. It was said that the right alleged to have been taken away was never conferred and as such the approach adopted by the learned Arbitrator was completely arbitrary. Respondent replied that this is an appeal ground, for the reason that the Honourable Arbitrator did apply her mind to the question of the applicability of clause 2.4.2 and all other clauses of the manual, including the evidence led before her. 15. I have gone through both the record of proceedings before the DDPR as well as the arbitration award and have found that evidence was indeed led as parties suggest. Further, I have found that the issue of clause 2.4.2 of Applicant Manual, was considered by the learned Arbitrator in formulating her decision. This learned arbitrator’s finding on this issue has been that clause 2.4.2 had the effect of depriving Applicants of their existing rights as suggested by Applicant. She then came to the conclusion that Respondents were entitled to a mountain allowance of M1,800.00. As a result, there is nothing that the learned Arbitrator overlooked or ignored safe that she only came to a different conclusion from that anticipated by Applicant. 6 | P a g e 16. It was furthermore argued that the learned arbitrator was not justified in relying on clause 2.5 of the manual which empowers the Respondent to exempt certain persons from its applicability. According to the said clause, there has to be a written authorisation of exemption by the Human Resources branch. The learned Arbitrator concluded that no such exemption was granted so that the manual applied to Respondents. It was submitted that if clause 2.5 applied on these bases, so then did clause 2.4.2 which provided that the contacts shall apply in the event that there is conflict with the manual. The effect of this would be that all Respondents were not entitled to mountain allowance of M1,800.00 per the manual but the M300.00 per their contracts. Respondent relied that clause 2.5 was relevant to the issue in hand and as such the learned Arbitrator was justified in relying on it to determine if Respondents were exempt from applicability of the manual. 17. Applicants argument on this point is incomplete for the reason that there is a bare allegation that the learned Arbitrator was not justified in relying on clause 2.5. No further submissions have been made to indicate how this could have resulted into an irregularity. Rather, what happened is that Applicant uses the conclusion of learned Arbitrator to suggest that if clause 2.5 applied and so did 2.4.2. Even the Respondent was not much of help on this point of whether the learned Arbitrator was justified or not in relying on clause 2.5. Rather, Respondent went on to advance their augment in relation to this clause. I have already dealt with the issue of clause 2.4.2 and as such I find that it would be a unnecessary to dwell on it again. The argument about cause 2.5 of the manual falls off, on the grounds that it is unsubstantiated. COSTS Respondent prayed that this review application be dismissed with costs for want of merit on attorney and client scale. Respondent opposed the application on the ground that their application has merit and that it should succeed as the learned Arbitrator clearly misdirected herself. In spite of the submissions of the parties, I decline to make an award of costs. My view is based on the fact that costs are awarded in extreme circumstances. The intention behind making an ward of costs is not to intimidate parties away from enforcing their rights but mainly to discourage abuse of court processes. I do not find the current circumstances to justify an award of costs, more so in the light of the fact that Respondent has not given this Court enough justification to awards costs in their favour. 7 | P a g e AWARD Having heard the submissions of parties, I hereby make an award in the following terms: a) That the review application is dismissed; and b) That there is no order as to costs. THUS DONE AND DATED AT MASERU ON THIS 22nd DAY OF OCTOBER 2012, .................................... T. C. RAMOSEME DEPUTY PRESIDENT OF THE LABOUR COURT OF LESOTHO (AI) .............................. Mrs. L. RAMASHAMOLE MEMBER ............................. Mr. L. MATELA MEMBER FOR APPLICANT: FOR RESPONDENT: ADV. WOKER H. ADV. SEKONYELA B. I CONCUR I CONCUR 8 | P a g e