Fishing outside the scope of the Pre-Arbitration Minute

By David Short and Ciara Pillay

In a recent ruling, the Labour Appeal Court (LAC) in Mbeje and Others v Department of Health: KwaZulu-Natal and Others [2024] ZALAC underscored the importance of respecting the boundaries set in a Pre-Arbitration Minute. Much like casting a fishing line beyond permitted waters, the appellants in this case attempted to introduce new issues outside the agreed scope. The LAC reaffirmed that once a pre-arbitration minute is settled, parties must stay within its parameters unless exceptional circumstances arise.

This decision serves as a vital reminder for all parties to fully understand the implications of these documents, as venturing too far off-course can leave them empty-handed.

Casting the Line: The Facts of the Case

The appellants were employed by the Department of Health: KwaZulu-Natal in its Emergency Medical Services (EMS) unit. After participating in an unprotected strike, they were dismissed. According to section 65 of the Labour Relations Act 66 of 1995 (LRA), essential service employees, such as EMS workers, are not allowed to strike.

Following the strike, the appellants were issued a first ultimatum to return to work, followed by a notice to attend a disciplinary hearing and a second ultimatum. Employees who adhered to the second ultimatum received final written warnings, while those who ignored it were dismissed.

Caught in the Net: The Bargaining Council and Arbitration

The appellants referred the dismissal to the Bargaining Council as an unfair dismissal dispute. Both parties agreed on a pre-arbitration minute, limiting the issue to the severity of the sanction in relation to the offence.

However, despite the agreed-upon scope, the appellants tried to introduce new issues during arbitration, such as claims that they never received the ultimatums or the notice for a disciplinary hearing. They also argued that the dismissal was applied inconsistently.

Although the arbitrator acknowledged the limited scope of the pre-arbitration minute, they still addressed the new inconsistency claim, ultimately siding with the Department of Health’s version of events. The arbitrator ruled that the unprotected strike caused significant disruption, justifying dismissal.

The Labour Court and Labour Appeal Court

The Labour Court followed the arbitrator’s lead, considering the new issues raised by the appellants despite the restrictions of the pre-arbitration minute. The court also agreed that the Department’s version – that the appellants received the second ultimatum and disciplinary hearing notice – was more probable.

However, the Labour Appeal Court took a different approach, focusing on whether the arbitrator’s decision was reasonable within the scope of the pre-arbitration minute. The LAC highlighted the importance of sticking strictly to the issues agreed upon in the pre-arbitration minute.

Staying Within Boundaries: The Binding Effect of Pre-Arbitration Minutes

The LAC clarified that once a pre-arbitration minute is agreed upon by both parties, it becomes a binding document. Its purpose is to define the key issues for trial and guide the arbitrator or court in making a decision. Parties cannot deviate from it unless there are exceptional circumstances.

The pre-arbitration minute is crucial because it narrows the dispute to specific issues, helping the presiding officer focus on what needs to be determined. It’s essential that parties draft these minutes carefully to avoid narrowing the scope too much or omitting important issues.

Avoiding Overreach: Key Takeaways

Parties often view pre-arbitration or pre-trial conferences as routine procedures, but this case demonstrates how critical they are. The Pre-Arbitration Minute should be carefully prepared, as it defines the parameters of the trial. Waiting until the trial to raise new issues can result in those issues being excluded from consideration.

The LAC has issued a clear warning: appeals will be adjudicated strictly based on the issues outlined in the pre-arbitration or pre-trial minute. Therefore, it’s vital for parties to thoroughly prepare before these conferences to ensure all relevant issues are included.