Librapac CC v Fedcraw and others Labour Court (JA49/98) [1999] ZALAC 6 (11 March 1999)

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[1999] ZALAC 6
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Librapac CC v Fedcraw and others Labour Court (JA49/98) [1999] ZALAC 6; [1999] 6 BLLR 540 (LAC); (1999) 20 ILJ 1510 (LAC) (11 March 1999)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
(HELD AT JOHANNESBURG)
APPEAL CASE NO : JA 49/98
In the matter between :
LIBRAPAC CC Appellant
and
FEDCRAW & OTHERS
Respondents
JUDGMENT
[1] This is an appeal against
an order made by Tip AJ in the Labour Court whereby an arbitration
award made by a commissioner for
the Commission for Conciliation,
Mediation and Arbitration (the CCMA) was made an order of the Labour
Court, albeit in somewhat modified
form. The effect of his order
also disposed of an application for the review of the arbitration
award.
[2] The appellant (Librapac)
dismissed the second and further respondents (the employees) on 9
May 1997. Conciliation in terms
of the Labour Relations Act 66 of
1995 (the LRA) failed and a certificate to this effect was issued on
20 June. Arbitration followed.
The arbitration hearings took place
on 5 and 6 August. On 25 August the commissioner handed down his
award, finding that the
dismissals were procedurally and
substantively unfair. He ordered the reinstatement of 23 employees
whose names appeared on a
list furnished to him. Twenty employees
presented themselves for reinstatement on 2 September. Librapac
refused to reinstate
them on the basis that it disputed the award
and that they had to apply to the Labour Court for the award to be
made an order of
Court. This was done. The application was filed
on 19 September, but only served on Librapac on 17 October.
Librapac filed its
answering affidavit on 12 December, together with
the review application already referred to. The matter came before
Tip AJ on
2 March 1998. He directed Librapac to apply for
condonation for the late filing of the review application. The
condonation application
was filed on 4 March and heard by Tip AJ on
9 March.
[3] Tip AJ found that the
review application was not brought within a reasonable time. He
also refused to exercise his discretion
(to grant condonation
nevertheless) holding that Librapac’s prospects of success in
showing that the dismissals were fair were
not good.
[4] What he did do, however,
was to restrict his order (making the arbitration award an order of
court) to only twelve employees,
instead of the twenty-three
employees named in the arbitration award. The stated reason for
this was that the original referral
to conciliation was only done on
behalf of sixteen employees, four of whom had, on the papers before
him, signed statements admitting
theft. In respect of these four,
he ordered a remittal to the CCMA for a fresh arbitration hearing
before another commissioner.
[5] On appeal Librapac
attacked Tip AJ’s finding on various grounds which will be dealt
with later. There is no cross-appeal
on behalf of the eleven
employees who fell off the table in the course of the process in the
court below.
Condonation for late
review
[6] Review of arbitration
under the auspices of the CCMA must proceed in terms of section 145
of the LRA (
Carephone (Pty) Ltd v Marcus NO and others
[1998]
11 BLLR (1093) LAC; (1998) 19 ILJ 1423 (LAC); para’s [23]-[29]).
Except in cases of alleged corruption the review application
must be
brought in the Labour Court within six weeks of the date that the
award was served on the person applying for review (section
145(1)
(a) of the LRA).
[7] Librapac received the
reasons for the award on 26 August 1997. It therefore had to apply
for review within six weeks, that
is, at the latest, by 7 October.
The review application was only filed on 12 December, more than two
months late.
[8] The explanation for the
delay is a brazen one. The view adopted by Librapac, on the advice
of its attorneys, was to ignore
the arbitration award and not to
institute review proceedings until the employees sought to compel
enforcement of the award by
seeking to make it an order of court in
terms of section 158(1)(c) of the LRA.
[9] Section 143 of the LRA
provides that an arbitration award is final and binding. The
award’s lawfulness does not depend on
it being made an order of
the Labour Court. The latter step is only an aid to its practical
enforcement.
[10] Librapac’s delay in
bringing the application for review was thus based on a deliberate,
wilful decision not to comply with
a lawful and binding award in
terms of the Act. It amounted to a flagrant and cynical disregard
for the express provisions and
underlying purpose and structure of
the LRA. I am not aware of authority that countenances behaviour of
this kind.
[11] In the court below Tip AJ
considered the matter on the basis that an arbitration award could
be reviewed under section 158
(1) (g) of the LRA, where no time
limit is set. He nevertheless found the delay to be unreasonable
and I fully agree with his
finding. Even in such cases the degree
of unreasonableness of the delay may be of such a nature so as to
justify the refusal of
a condonation application (
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit Kaapstad
1978 (1) SA 13
(A)
at 41 A-C).
[12] However, as already
mentioned, the review proceedings should have been brought under
section 145 of the LRA, which sets a time
limit of six weeks from
the date of the award within which a review application must be
brought. Assuming, without deciding, that
condonation of this
statutory time period may be granted by the Labour Court (an issue
on which I express no view), this is a case
where, in view of the
wilful and deliberate decision not to bring the review application
earlier, condonation should be refused
without further enquiry
into the merits, or prospects of success (
Allround Tooling (Pty)
Ltd v NUMSA
[1998] 8 BLLR 847
(LAC) para. 10, and the cases
cited there).
[13] There are also further
grounds for refusing to condone Librapac’s wilful and deliberate
delay in bringing review proceedings.
The application for
condonation should have been brought as soon as it became apparent
that there had been a delay (
Allround Tooling (Pty) Ltd v NUMSA
,
above, at para. 8). It did not do so and only brought the
application when ordered to do so by the judge in the court below.

There is no proper explanation why it was not done earlier.
[14] It follows that the
appeal against the implicit dismissal of the condonation and review
applications in the court below must
fail.
Enforcement of the
arbitration award
[15] What remains is the
appeal against the (partial) enforcement of the arbitration award by
it being made an order of the Labour
Court.
[16] Whether it is permissible
to revisit all the issues determined at the arbitration at the stage
when enforcement of the award
is sought in the Labour Court (in the
absence of a review application) or whether only the possible
nullity of the award may be
raised (compare for example
Van
Zijl v Von Haebler
1993 (3) SA 654
(SE) ), was not fully
debated on appeal. In view of the conclusion reached it is not
necessary to decide this issue. For the
purposes of this judgment I
have assumed (again without expressing any view on it) that the
wider enquiry is permissible.
[17] Essentially two points
were relied upon, namely
(1) that because only one
employee signed the application for referral of the dispute for
conciliation, the commissioner lacked
jurisdiction to arbitrate the
issue in respect of the other employees, and
(2) that given the
circumstances set out in the affidavits in the proceedings in the
court below, the commissioner’s finding of
an unfair dismissal
could not stand. Neither point has merit.
[18] There is no evidence that
objection was made, at the conciliation stage, to the participation
and standing of the sixteen employees
who were then part of the
proceedings. It is apparent from the referral form that the person
who signed the form purported to
do so on behalf of everyone listed
on the form. Failure to object at that stage amounted to
acquiescence in their right to be
parties to the dispute. That
could not be undone later.
[19] No evidence, other than
unsubstantiated hearsay of unidentified persons, was presented at
the arbitration hearing which individually
implicated any of the
employees in dishonesty. The commissioner’s findings of an unfair
dismissal was thus not without objective
foundation. There existed
no valid reason not to enforce his award by making it an order of
court.
[20] The appeal must therefore
be dismissed.
[21] The respondent’s heads
of argument were delivered late, with the flimsiest of excuses for
doing so. As a mark of displeasure
the costs of preparation of
these heads will not be allowed.
[22] The appeal is dismissed
with costs, except for the costs relating to the preparation of
respondent’s heads of argument.
Froneman DJP
I agree,
Ngcobo AJP
I agree,
Kroon JA
Counsel for the appellant
: Mr Snyman of Snyman Van Der Heever Heyns Inc.
Counsel for respondent : Mr
Makinta of E.S. Makinta Attorneys
Date of hearing : 4 March
1999
Date of judgment : 11 March
1999