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[2011] ZASCA 210
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Fawu obo Mbatha and Others v Pioneer Foods (Pty) Ltd t/a Sasko Milling and Baking and Others (827/10) [2011] ZASCA 210; (2011) 32 ILJ 2916 (SCA); [2012] 4 BLLR 317 (SCA) (29 November 2011)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 827/10
FAWU O B O MBATHA &
11 OTHERS
…...............................................................
Appellants
and
PIONEER FOODS (PTY)
LTD t/a SASKO MILLING
…..................................
First
Respondent
& BAKING
COMMISSION FOR
CONCILIATION MEDIATION
…...............................
Second
Respondent
&
ARBITRATION
COMMISSIONER
LINDA MATYILA
…..........................................................
Third
Respondent
______________________________________________________________
Neutral citation:
FAWU v Pioneer Foods (Pty) Ltd t/a Sasko Milling & others
(827/10)
[2011] ZASCA 210
(29 November 2011)
CORAM:
Navsa, Heher, Van Heerden, Wallis JJA and Petse AJA
HEARD:
17 November
2011
DELIVERED:
29
November 2011
SUMMARY: Application
for leave to appeal a decision of the Labour Court ─ test in
National Union of Metalworkers of SA v
Fry’s Metals (Pty) Ltd
2005 (5)
SA 433
(SCA) to be rigorously applied ─ even where there has
only been a refusal by the LAC of an application for leave to appeal
─ alleged misapplication of the test in
Sidumo
v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC) not sufficient in itself to justify an appeal to the
SCA ─ consequences of contrary approach discussed.
______________________________________________________________
______________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Labour Court (Durban) (Gush AJ sitting as court of first instance):
The application for leave
to appeal is dismissed with costs.
______________________________________________________________
JUDGMENT
______________________________________________________________
NAVSA JA (HEHER, VAN
HEERDEN, WALLIS JJA and PETSE AJA concurring)
[1] This application for
leave to appeal was referred by this court for oral argument in terms
of s 21(3)
(c)
(ii) of
the Supreme Court Act 50 of 1959. The parties were informed to be
prepared, if called upon to do so, to address the court
on the
merits. On the 17 November 2011 we heard oral argument in respect of
the application for leave to appeal. On the same day
we made an order
dismissing the application for leave to appeal with costs and
indicated that reasons for doing so would be provided
before the end
of the court term. The background to the application and the reasons
for its dismissal are set out hereafter.
[2] The application for
leave to appeal was directed against a judgment of the Labour Court
(Gush AJ), in terms of which he set
aside that part of an award of
the third respondent, a Commissioner at the Commission for
Conciliation, Mediation and Arbitration,
in which she held that the
dismissal of the second to twelfth applicants by the first
respondent, Pioneer Foods (Pty) Limited (Pioneer
Foods) was
substantively unfair and that they were entitled to be reinstated.
The Commissioner had already found that the dismissal
was
procedurally fair. That part of her award was uncontested. The first
applicant is the Food and Allied Workers Union and is
the trade union
to which the second to twelfth applicants belong and who at all
material times represented their cause. I shall,
for the sake of
convenience, refer to the second to twelfth applicants as the
applicants and to the first applicant as the Union.
[3] Aggrieved at the
finding that the dismissal was substantively unfair, Pioneer Foods
applied to the Labour Court to review and
set aside that part of the
award in terms of which the applicants were reinstated. In his
judgment setting aside the award, Gush
AJ recorded that the
applicants had been subjected to a disciplinary enquiry by Pioneer
Foods and had been charged with failure
to comply with the latter’s
safety regulations (emergency procedures) and insubordination arising
from their refusal to obey
instructions. The disciplinary enquiry
followed on what had happened during and following on a gas leak that
had occurred on 25
May 2005 at Pioneer Foods’ mill, at which
the applicants were employed.
[4] Pioneer Foods’
emergency evacuation procedures are as follows:
‘
3.1
When the emergency occurs an alarm bell is set off as a warning to
all employees inside the mill.
3.2 In addition an
announcement is made over the intercom.
3.3 In response to these
alarms all employees are immediately required to leave their work
stations and proceed to a designated
assembly point.
3.4 At the assembly point
the Applicant’s management and/or safety teams conduct a roll
call to determine that all employees
are at the assembly point and
that no employees are left in the mill; at the same time safety teams
wearing protective equipment
are sent into the mill to ensure all
employees have vacated the area.
3.5 If any employees are
found not be present after the roll call another safety team, wearing
the necessary safety equipment is
dispatched into the mill to look
for those employees who are not at the assembly point to ensure that
they leave the affected area
immediately.
3.6 All employees
including management are required to remain at the assembly point
until an all clear is given by management or
a safety team. The all
clear means that the danger has passed and the employees are then
free to return to the affected or restricted
area.’
[5] On the day of the gas
leak the alarm was sounded and an announcement was made. The gas leak
was very serious and dangerous.
That too is uncontested. It appears
from the record that a passer-by, suffering from asthma, had died as
a result of the gas leak.
It was not in dispute that all personnel
had been trained in the emergency procedures. Subsequent to the alarm
being sounded and
the announcement being made, one of the applicants,
Mr Mkhize, did not follow the very first step of leaving the affected
area
and proceeding to an assembly point. After a roll call it was
determined that Mr Mkhize was not at the assembly point. The other
applicants and fellow employees were at the assembly point. A safety
team equipped with gas masks had in terms of the emergency
procedures
already been dispatched to determine whether any employees were left
in the affected area. The team came across Mr Mkhize
and two other
employees who were in the change rooms and they were instructed to
join the others at the assembly point.
[6] In the interim other
employees, including the other applicants, had been instructed to
remain at the assembly point until the
all clear was sounded. Despite
this very specific instruction the remaining applicants left the
assembly point before the all clear
signal and re-entered the
affected area to clock-out. Thereafter they departed the premises to
go home.
[7] After ascertaining
that Mr Mkhize had not reported at the assembly point as instructed,
a second safety team was dispatched
to look for him. They found him
still at the ablution facility, approximately twenty minutes after he
had been instructed by the
first safety team to go to the assembly
point. The second team instructed Mr Mkhize, under pain of
disciplinary action, immediately
to comply with the instruction to
follow the emergency procedure. It is common cause that Mr Mkhize did
not comply with the instruction
and went directly home.
[8] Unsurprisingly,
management preferred charges against all errant employees, including
the applicants. Disciplinary enquiries
were conducted during June and
July 2005. Mr Mkhize was charged as follows:
‘
Charge
1 ─ Non-compliance with safety regulations and any other legal
or internal regulations in connection with safety of
employees and
committing any unsafe act endangering lives or company property;
Charge 2 ─ Refusal
to carry out any reasonable work order issued officially by an
authorized person; Alternatively, Gross
insubordination by failing to
obey a lawful and reasonable command of your employer issued by both
Neil Wiggle and Walter Mayberry.’
The other applicants were
charged as follows:
‘
Charge
1 ─
Gross
misconduct
in
contravening company’s emergency evacuation procedure
Charge 2 ─
Gross
insubordination
by disobeying a lawful and
reasonable instruction by entering the mill at a time when it was
unsafe to do so. Alternatively,
failure to
obey
a lawful and reasonable command of your
employer issued by both Neil Wiggle, the mill manager and Walter
Mayberry, the production
manager.’
[9] The result of the
disciplinary enquiry was that it was found that all of the employees
concerned had contravened Pioneer Foods’
safety regulations and
had been guilty of gross insubordination. The penalty imposed on the
applicants was dismissal. The Union,
on behalf of the applicants,
referred the matter to the CCMA.
[10] Some of the
applicants were shop-stewards. There was discontent on the part of
the Union at what they considered to be a failure
on the part of
Premier Foods to consult with the Union about shop-stewards being
disciplined. In her award, the Commissioner recorded
that there had
been numerous attempts by Pioneer Foods to involve the Union. She
found that the Union itself had done very little
to engage Pioneer
Foods. Furthermore, the Union had complained that Pioneer Foods had
not allowed it to represent the applicants
at the disciplinary
enquiry. The Commissioner in her award was harshly critical of the
Union on this aspect. She labelled the Union
arrogant. In her view it
adopted the attitude that Pioneer Foods had to wait indefinitely
whilst Union officials considered their
availability. The
Commissioner stated that she was appalled at the Union’s
behaviour. She recommended that the conduct of
a Union official who
adopted that attitude on behalf of the Union be investigated.
[11] A total of sixteen
employees, including the applicants, had been charged with
misconduct. Four employees had chosen to co-operate
with the
disciplinary enquiry and had remained in attendance. They had
acknowledged their guilt, apologised for their misconduct
and had
undertaken to obey workplace rules in the future and as a result had
received final written warnings. The applicants, on
the other hand,
left the disciplinary enquiry and took no further part in it. As
stated above they were all dismissed.
[12] The Commissioner,
having dealt with the procedural points raised by the applicants and
having found them to be without any
substance, went on to consider
the substantive merits of the dismissal. She accepted that Pioneer
Foods by way of two safety teams
had issued the instructions to Mr
Mkhize to go to the assembly point. She found that by not complying
Mr Mkhize had been guilty
of misconduct and gross insubordination. It
is necessary to consider the relevant paragraphs of the
Commissioner’s award
in which she deals with the misconduct and
the appropriate sanction:
’
Mkhize
denied ever being told to go to the assembly point by the 2 sets of
managers. I do not accept his version because he was
evasive
throughout his cross-examination. I cautioned him several times on
how he responded to questions, but he continued along
the said line.
I therefore prefer the version by Mayberry, which was corroborated by
Williams that Mkhize was informed. However,
both Mayberry and
Williams observed that Mkhize did not take the matter seriously,
meaning that he did not think the matter was
serious. I therefore do
not think it was blatant disregard for company rules, but rather
ignorance brought about by him not taking
the matter seriously. Also,
the Zulu demonstrated by Williams at the arbitration was not clear at
all, therefore I am giving Mkhize
the benefit of the doubt that it is
possible that he could not have understood Williams. The versions of
both Mayberry and Williams
were consistent and remained so even in
cross-examination. My conclusion is that Mkhize committed the offence
complained of against
him.
However, Mkhize’s
conduct was not sufficiently serous to warrant a penalty of dismissal
being imposed on him. I say this for
the following reasons: It was
his normal knock off time and whilst he was the respondent’s
responsibility until he left the
premises, this was not grossly
serious to have attracted the sanction of dismissal. Furthermore,
Mkhize obviously did not fully
understand the extent of the
instruction to go to the assembly point, because Mayberry testified
that he laughed and Mayberry had
to threaten him with discipline in
order for him to take the matter seriously. Also, Mkhize did not
knock off work with the other
employees who were in the change rooms,
hence him behaving as if the instruction did not apply to him. I do
accept though that
Mayberry, Fagan, Williams and Vorster directly
instructed him to go to the assembly point and he ignored said
instruction and instead
went home. Finally, I am mindful of the fact
that the issue of the gas smell was very dangerous and could have
attracted serous
criminal and civil penalties against the respondent,
I have to emphasise that even though Mkhize knew about the
respondent’s
safety procedures, that incident of the gas smell
was not a simulation, but a real life incident and it happened
unexpectedly and
could have created confusion on the part of Mkhize.
I reject the assertion by the applicants that management was confused
on this
day, because it is abundantly evident from the surveillance
and management witnesses that management was in charge of the
situation,
and my conclusion henceforth is that the applicants could
have been confused. I am not saying this because management caused
them
to be confused, but they could have been confused because all
the witnesses testified that it was the first time an incident of
this nature ever occurred in the workplace.
I think that the reason
for Mkhize being dismissed had to do with his deliberate refusal to
attend the disciplinary hearing which
he was summoned to attend.
Otherwise, if he attended the hearing, on a careful conspectus of the
facts, the worst case scenario
would have been a final written
warning. Based on this, I find that the sanction of dismissal was too
harsh under the circumstances.
It consequently follows that Mkhize’s
dismissal was substantively unfair.’
[13] Significantly, on
the same theme, the Commissioner, on her way to determining whether
the sanction imposed by Pioneer Foods
was justifiable,
contradictorily, said the following:
‘
The
applicants ended up being dismissed because they were, I conclude
from the evidence, obstinate and disrespectful. I however
believe
that they were misled in behaving in this manner, though I am not
saying that they were without guilt. I have already dealt
with their
culpability. I accordingly believe that the applicants have learned
their lesson in being out of work for over a year
with no income.’
[14] In para 29 of his
judgment, Gush AJ summarised his view of the Commissioner’s
reasoning as follows:
’
The
Second Respondent however came to the conclusion that the dismissal
of Mkhize was substantively unfair in that his conduct was
not
sufficiently serious to warrant a sanction of dismissal. The reasons
proffered by the Second Respondent as to why this was
so are
variously as follows:
29.1 Mkhize did not think
that the matter was serious; that it was not “
a
blatant disregard for company rules but rather ignorance brought
about by not taking matters seriously
”
;
29.2 That Mkhize did not
fully understand the extent of the instruction to go to the assembly
point;
29.3 [She] accepted that
the safety teams had “
directly
instructed him to go to the assembly point and that he ignored the
said instruction and instead went home
”
;
29.4 [She also accepted]
that Mkhize could have been confused although his confusion was not a
fault of management and that in any
event “
it
was his normal knock off time
”
.’
(Emphasis in original.)
[15] In para 30 Gush AJ,
correctly, in my view, said the following:
‘
The
Second Respondent thereafter somewhat startlingly came to the
conclusion that the reason for Mkhize’s dismissal was “
his
deliberate refusal to attend the disciplinary hearing he was summoned
to attend
”
.
This was despite the fact that there was no evidence to support this
conclusion. This was despite accepting that the emergency
was serious
and that the issue of the gas smell was very dangerous and could have
attracted serious criminal and civil penalties.’
(Emphasis in
original.)
[16] The following eight
paragraphs of the Labour Court’s judgment bear repeating:
’
Taking
the above reasons into account and the Second Respondent’s
somewhat confused logic it seems to be abundantly clear
that the
Second Respondent did not properly apply her mind to the material
that was before her when making the award which inevitably
leads to
the conclusions that:
“
the
award was not one that a reasonable decision maker could arrive at
considering the material placed before her.
”
Edcon v Pillemer
(199/2008)
[2009] ZASCA 135
at para 15 and
16.
When dealing with the
substantive fairness of the dismissal of the remaining Respondents
the Second Respondent rejects the evidence
given on their behalf at
the Arbitration. The Second Respondent specifically, as with Mkhize,
accepted the evidence given by the
Applicant’s witnesses and in
particular found that the instruction given to the remaining
Respondents not to leave their
assembly point was unequivocal and
understood.
In this regard the Second
Respondent finds specifically that the Respondents were in breach of
the company emergency safety procedures
and that they acted in a
grossly insubordinate manner.
The Second Respondent
then considered specifically the question of consistency in the light
of the fact that four of the Applicant’s
employees who had also
disregarded the instruction to remain at the assembly point had been
given a final written warning.
The Second Respondent
found:
“
the
[Applicant] did not act unreasonably because all the employees were
charged but the outcomes were different because of how the
employees
responded to the discipline”
And that therefore the
Third Respondent’s allegation of inconsistency could not be
sustained.
The Second Respondent
then turns to the appropriateness of the penalty [and] concludes
that, despite her finding on consistency
set out above that
“
I
do not believe that the sanction applied is reasonable and fair
considering that the other employees committed the same offence
were
issued with a final warning”.
Despite having found that
the Respondents acted in a grossly insubordinate manner the Second
Respondent concluded that the employment
relationship between the
Respondents and the Applicant is not irretrievably broken because
“the Union and management continue
to have a healthy
relationship”. This conclusion ignores the effect the
misconduct had on the employment relationship between
the Applicant
and the Respondents.
As with her conclusions
regarding Mkhize her conclusion that the remainder of the
Respondents’ dismissal was unfair is not
commensurate with the
facts and the evidence (material) placed before her and her award is
not one that a reasonable decision maker
could arrive at.’
[17] Gush AJ dismissed an
application by the applicants for leave to appeal his judgment. An
application for leave to appeal was
subsequently refused by the LAC.
[18] Before us counsel
for the applicants conceded that their case is based on the alleged
misapplication by Gush AJ of the now
firmly established test for
review of awards by the CCMA, set by the Constitutional Court in
Sidumo v Rustenburg Platinum Mines Ltd
2008
(2) SA 24
(CC) para 110:
‘
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?’
[19] I have difficulty in
seeing why this case is deserving of the attention of this court. In
National Union of Metalworkers of SA &
others v Fry’s Metals (Pty) Ltd
2005
(5) SA 433
(SCA) para 43 this court stated:
‘
The
procedures for applying for leave to appeal, and the factors relevant
to obtaining special leave, are well established. They
are set out in
the Supreme Court Act 59 of 1959 and in the decisions of this Court,
including
Westinghouse
Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd
1986
(2) SA 555
(A). The criterion for grant of special leave to appeal is
not merely that there is a reasonable prospect that the decision of
the LAC will be reversed ─ but whether the applicants have
established “some additional factor or criterion”.
One is
“(w)here the matter, though depending mainly on factual issues,
is of very great importance to the parties or of great
public
importance”. No doubt every appeal is of great importance to
one or both parties, but this Court must be satisfied,
notwithstanding that there has already been an appeal to a specialist
tribunal, and that the public interest demands that labour
disputes
be resolved speedily, that the matter is objectively of such
importance to the parties or the public that special leave
should be
granted. We emphasise that the fact that applicants have already
enjoyed a full appeal before the LAC will normally weigh
heavily
against the grant of leave. And the demands of expedition in the
labour field will add further weight to that.’
[20] It is true that in
Fry’s Metals
there
had been a full hearing before the LAC, which usually weighs heavily
against the granting of leave to appeal. Still, in the
present
matter, the labour court, a specialist tribunal, decided the matter
and thereafter refused the application for leave to
appeal. Then the
LAC, a specialist appeal tribunal, thought there were no prospects of
success. In
Republican Press (Pty) Ltd v
Chemical Energy Printing Paper and Wood & Allied Workers Union
2008 (1) SA 404
(SCA), (2007) 28 ILJ 2503
(SCA) para 3, this court held that the same considerations as set out
in
Fry’s Metals
should
apply where there had been a refusal by the LAC of an application for
leave to appeal. As recently as August 2010 this court,
in
Rawlins
v Kemp t/a Centralmed
(2010) 31 ILJ
2325 (SCA),
[2011] 1 BLLR 9
(SCA) para 17, referring to
Fry’s Metals
,
stated the following:
‘
Now
that the appeal is before us I mention that decision only to indicate
that the principle upon which it is founded is that this
court will
not lightly interfere with the decisions of the specialist tribunal
that has been established to hear appeals in labour
disputes. That is
consistent with the observation by the Constitutional Court in
Dudley
v City of Cape Town & another
that
–
“
[t]he
LAC is a specialised appellate court that functions in the area of
labour law. Both the LAC and the Labour Court were established
to
administer labour legislation. They are charged with the
responsibility for overseeing the ongoing interpretation and
application
of labour laws and the development of labour
jurisprudence.” ‘
1
[21] I am of the view
that the Union has not given careful enough thought to the
implications that follow on an acceptance that
a misapplication of
the test in
Sidumo
should
per se constitute the basis of an appeal to this court or to the LAC.
Employers with their usually greater resources would
then also be
free to challenge virtually every decision by a Commissioner all the
way up
the litigation line,
including a more-than-once appeal.
2
Acceding to the request
by the applicants to entertain appeals before this court on the basis
of a misapplication of the
Sidumo
test
would invite an appellate challenge to be mounted in every case in
which a party was aggrieved at the Labour Court’s
view of an
award, and further down the line, against the view taken by the LAC.
The review test in
Sidumo
is one
that should not lend itself to frivolous challenges to CCMA awards ─
the opposite was intended. Given how easily a
challenge on the basis
suggested by the applicants could, at least in theory, be constructed
there would be no limit to the ensuing
flood of appellate litigation,
with consequent delays that are inevitable in extended litigation. As
has been stated in numerous
cases, the
Labour Relations Act 66 of
1995
intended that labour disputes be resolved speedily. Specialist
tribunals were created to that end. In the present case the matter
has dragged on for approximately six years. Judgment in the Labour
Court was delivered in January 2010, approximately 22 months
ago.
Thus, close to two years have passed, pending appellate procedures.
[22] This case, as many
others before it, demonstrates, once again, how difficult it is to
keep the dividing line between appeal
and review. This is so because,
almost inevitably, in reviewing a Commissioner’s award the
labour court deals with the merits
of a case. Yet that dividing line
has to be kept. See
Sidumo
paras
109 and 244 and the decision of this court in
Shoprite
Checkers (Pty) Ltd v CCMA
2009
(3) SA 493
para 28. In
Shoprite
para 30, this court
stated the following in relation to the review powers of the Labour
Court:
‘
Its
warrant for interference with the award of the arbitrator was
narrowly confined.’
It was referring to the
powers of review that are fairly circumscribed in
s 145(2)
of
the
Labour Relations Act.
>
[23] When, however, an
award fails, or, depending on how one looks at it, meets the
Sidumo
test it should be set aside. The Labour Court
in this instance carefully considered the award, its inherently
contradictory nature
and flawed logic and the evidence before the
Commissioner and concluded that the award fell to be set aside. The
Labour Court’s
reasoning appears impeccable. Counsel for the
applicants urged us to consider that the length of service of the
applicants varied
from 12 to 36 years’ service and that factor
by itself meant that a grave injustice flowed from the sanction of
dismissal,
which in constitutional terms, obliged this court to
entertain the appeal. He also submitted that although the apology to
management
on behalf of the applicants was somewhat muted, as found
by the Commissioner, it nevertheless showed contrition, deserving of
the
substituted sanction imposed by the Commissioner.
[24] It is important to
note that the Union’s referral of the matter to the CCMA did
not mention the length of service of
any of the applicants as a
factor on which the applicants’ case was based. As to the
challenge on the merits of the dismissal,
the following is stated on
LRA form 7.11 (the referral form):
‘
The
issue that led to the dismissal is not justifiable.’
[25] In the affidavit
filed in support of the applicants’ application for leave to
appeal to this court, the
following are said to be the justiciable issues:
‘
It
is accordingly submitted that there are special circumstances which
merit the Supreme Court of Appeal considering the present
application
for leave to appeal. In particular, the Supreme Court of Appeal in
this matter will have to consider at least the following:
(a) the application of
the test of reasonableness, as conceived by the Constitutional Court,
to CCMA awards.
(b) Whether the correct
review principles have been applied in the present case.’
[26] In any event, the
submissions on behalf of the appellants, referred to in para 23, are
in my view unfounded. Indisputably,
all employees were trained in the
emergency procedures which impact on the safety and thus the lives of
the workforce. No-one could
have been under any illusions about their
importance. The specific instructions on the day in question would
have brought that
home. On the fateful day someone had died. The gas
leak involved the safety, not only of the applicants, but also of
safety teams
and fellow workers. The Labour Court’s conclusion
that the Commissioner’s reasoning and conclusions were at odds
with
the evidence before her appears justified.
[27] Insofar as the
apology allegedly tendered on behalf of the applicants is concerned
it had been half-hearted and conditional:
‘
It
was not the intention to break the rules. We apologise if we made a
mistake ─ the people were totally confused as they
had not
experienced the gas smell before.’
[28] Furthermore, the
applicants chose not to engage with the disciplinary enquiry and they
and the Union, so the Commissioner found,
were obstructive. Not only
was trust breached but Pioneer Foods would find it difficult in the
future to impose discipline in a
vital area, that of the safety of
all workers in their mill and the surrounding area, particularly with
employees such as the applicants
who have still not displayed an
appreciation of the danger of their attitudes to safety in the
workplace. Employers are on occasion
rightly criticised for failing
to ensure the safety of their workers. When they make an effort to
secure the health and safety
of their employees they should be
commended for doing so.
[29] As stated in
Fry’s
Metals
para 46, the starting point, even
before the question of special circumstances is considered, is
whether the applicants have a reasonable
prospect of success. For all
the reasons set out above neither question can be answered in the
applicants’ favour. These
are the reasons for having dismissed
the application for leave to appeal.
_________________
M S NAVSA
JUDGE OF APPEAL
APPEARANCES:
For Appellant: D B
Ntsebeza SC
T N Ngcukaitobi
Instructed by
Jafta Incorporated Durban
Matsepes Inc Bloemfontein
For Respondent: M
Pillemer SC
Instructed by
A P Shangase &
Associates Durban
Mthembu & Van Vuuren
Inc Bloemfontein
1
Dudley
v City of Cape Town & another
2005 (5) SA 429
(CC).
2
Paul
Benjamin in ‘Friend or Foe? The impact of Judicial Decisions
on the operation of the CCMA’
(2007)
28
ILJ
1,
correctly states that the dispute resolution procedure introduced by
the LRA sought to incorporate review proceedings of arbitration
awards by the labour courts in a manner that would not undermine the
purposes of a system of expeditious dispute resolution.
He points
out that the exclusion of a right to appeal against a decision of an
arbitrator was designed to speed up the process
and free it from the
legalism that accompanies appeals as well as to avoid inordinate
delays and high costs that flow from appeal
hearings. The learned
author refers to
s 145
of the LRA and correctly states that it was
intended to create a narrow ground of review, subject to shorter
time periods. He
rightly concludes that the institution of a review
does effectively constitute a major delay to the resolution of the
disputes.
At the time of the article the average time taken for the
Labour Court to hear a review application was 23 months from the
date
of the arbitration award. Statistics provided by the author
shows how extensively, before the Constitutional Court judgment in
Sidumo
,
employers used review applications. Dealing with this Court’s
judgment in
Sidumo
before
its ultimate hearing in the Constitutional Court, the author
contemplates whether the flood of review applications would
be
reduced by this court’s decision. He concluded that it is more
likely that it would increase the number of reviews.
In the event of
the submissions by the applicants being upheld the system would, in
my view, be flooded, with the likelihood
of a greater number of
reviews being brought by employers.