Tsebo Sepetla v Lesotho Brewing Company (Pty) Ltd and Another (LC/REV 60 of 2009) [2012] LSLC 24 (12 November 2012)

IN THE LABOUR COURT OF LESOTHO LC/REV/60/2009 A0558/2005 HELD AT MASERU In the matter between: TSEBO SEPETLA And APPLICANT LESOTHO BREWING COMPANY (PTY) LTD DDPR 1ST RESPONDENT 2ND RESPONDENT JUDGMENT Date: 13th November 2012 Application for review of arbitration award. Condonation for late filing of review application having been earlier granted – Review application being heard in the merits. Court finding it irregular for learned Arbitrator to have reopened an issue that he had earlier made a ruling on for argument. Court also finding it irregular for the learned Arbitrator to have made a conclusion on a factual issue without hearing facts. Application for review being granted. 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 this day and judgment was reserved for a later date. In this application, Applicant seeks to have the arbitration award handed down on the 18th June 2009, reviewed, corrected and set aside. This matter was initially before the late President of the Labour Court, Judge President L. A. Lethobane. The matter had finalised in that He had dealt with both the application for condonation and the merits of this matter. 2. However, by the time of his untimely passing he had only dealt with and granted the condonation application and had not pronounced himself on the merits. As a result, the matter started afresh in relation to the merits only. This application is premised on two grounds of review namely that the learned Arbitrator erred in law by allowing a finalised matter to be argued 1 | P a g e for the second time; and that He relied on submissions only to dismiss Applicant’s claim when he ought to heard viva voce evidence as well. The application was argued and the ruling and reasons are in the following. SUBMISSIONS 3. It was submitted on behalf of Applicant that in the matter under review, the learned Arbitrator had raised a preliminary issue that one cannot accept his terminal benefits and later challenge that fairness of their dismissal. According Applicant, the learned Arbitrator had premised his contention on the decision of the Court in the case of Tšeliso Moiloa vs Total Print House LC/REV/524/2006. The learned Arbitrator was addressed by both counsels on the matter and they in agreement submitted that the matter before him was distinguishable from the Tšeliso Moiloa case (supra) and they requested that the matter proceed in the merits. Their request was accepted by the learned Arbitrator who made a ruling that the matter would proceed in the merits on the next date of hearing. 4. On the next date of hearing, the same preliminary issue was raised again by 1st Respondent. Despite their objection to the matter being raised for the second time, it was nonetheless entertained and a ruling was made dismissing their unfair dismissal claim. In this application, Applicant thus argued that it was unprocedural and irregular for the learned Arbitrator to have allowed a finalised issue, on which he had pronounced himself, to be re-opened more so when it related to the same augment and submission earlier made before him. It was further argued that the conduct of the learned Arbitrator was a gross mistake of law which materially affected his decision. 5. Furthermore, it was argued having decided to re-open the matter, the learned Arbitrator erred in law by relying only on the submissions of parties without viva voce evidence. Had he heard viva voce evidence, He would have discovered that acceptance of a cheque paid to Applicant did not bar him from challenging the fairness of his dismissal. It was submitted that in this matter the cheque was accepted after the matter had been referred to the DDPR whereas in the Tšeliso Moiloa case (supra), which His decision was based on, the money had been accepted before a referral was made and with the intention to settle the matter. It was thus argued that the circumstances of the two cases are different and incomparable. 6. Reference was made to the case of ‘Nokoane Mokhatla vs. Lesotho Brewing Company and Another LC/REV/65/2012 where the Court made a 2 | P a g e distinction between the facts of matter before it and the Tšeliso Moiloa case (supra). It was submitted that the facts of the ‘Nokoane Mokhatla case (supra) are similar to the facts of the case before this Court in that both cases relate to an irregularity on the part of the learned Arbitrator by making factual conclusions on the basis of submissions and without hearing supporting facts. 7. In response, 1st Respondent representative submitted that they did not object to review application being granted. It was submitted that at the time that the review application was made, the ‘Nokoane Mokhatla (supra) decision had not yet been delivered. For the reason that the facts and circumstances in the present matter and in the ‘Nokoane Mokhatla (supra) are similar and in view of the decision of this Court in that case, it would be an unnecessary exercise that would attract costs on their side if they pursued the matter further. 8. This Court has considered the submissions of both parties on the issues raised and has the following to say. In relation to the first ground of review, this Court is in agreement with the submissions by Applicant that it was both irregular and unprocedural for the learned Arbitrator to have re- opened a finalised matter for argument. In our view the conduct of the learned arbitrator in this instance was tantamount the appeal or review of its own decision, a prerogative left only with superior courts. In our view, this is a gross mistake that materially affected the learned Arbitrator’s decision to dismiss Applicant’s claim. As a result, this matter stands to be reviewed and set aside on this point alone. 9. However, since both points have been argued, we have also considered the second ground of review. We have come to the conclusion that the issue of whether or not acceptance of the cheque by Applicant from 1st Respondent constituted a settlement of the matter, is a matter that required the leading of evidence. This Court has pronounced itself on this issue in the case of ‘Nokoane Mokhatla (supra) as referred to by Applicant above. We have satisfied ourselves that the facts and surrounding circumstances are similar on both the Nokoane Mokhatla case (supra) and the present matters. We have further satisfied ourselves that the circumstances of the Tšeliso Moiloa case (supra) and the Applicant’s claim are the DDPR were not the same and thus incomparable. As a result, it was wrong for the learned Arbitrator to have made a conclusion without first hearing viva voce evidence as suggested by Applicant. Consequently, this matter warrants the granting of the review application as sought by Applicant. 3 | P a g e AWARD Having heard the submissions of parties, I hereby make an award in the following terms: a) That this application is granted; b) That referral A0558/2005 be heard de novo before a different arbitrator; and c) That there is no order as to costs. THUS DONE AND DATED AT MASERU ON THIS 23rd DAY OF NOVEMBER 2012. T. C. RAMOSEME DEPUTY PRESIDENT OF THE LABOUR COURT OF LESOTHO (AI) Mr. R. MOTHEPU MEMBER Mr. S. KAO MEMBER FOR APPLICANT: FOR RESPONDENT: ADV. MOKEBISA ADV. MABULA I CONCUR I CONCUR 4 | P a g e