Score Supermarket v Myra Kente (JA11/99) [1999] ZALAC 21 (16 September 1999)

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[1999] ZALAC 21
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Score Supermarket v Kente (JA11/99) [1999] ZALAC 21; [1999] 12 BLLR 1261 (LAC) (16 September 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
CASE NO.: JA11/99
In the matter between:
SCORE SUPERMARKET
Appellant
and
MYRA KENTE
Respondent
JUDGMENT
CONRADIE JA
[1] The respondent was, so it seems,
suspected of complicity in a robbery which occurred at the
appellant’s store at Taung. Her
dismissal was substantively and
procedurally unfair; that much was conceded at the pre-trial
conference. The trial proceeded on two
procedural points, on the
quantum
of the respondent’s compensation, and on the costs
award in the court
a quo
. The two procedural points were
dismissed following a preliminary hearing. Judgment was handed down
on 20 October 1998. Subsequently,
at a later hearing the respondent
was awarded R 48 015,35 and costs on the magistrates’ court party
and party scale.
[2] In a notice of appeal delivered
on 9 November 1998, the appellant raised two issues: the
compensation awarded was unreasonable
and costs should not have been
awarded to the respondent. Much later, on 9 June 1999, an amended,
or supplemented, notice of appeal
saw the light of day. It raised
the two procedural points which had been dismissed at the first
hearing. The amended notice of
appeal was not accompanied by an
application for condonation. That came later still. When it did
come, on 30 July 1999, it also
dealt with the late filing of the
record of appeal and the late filing of the heads of argument. The
reasons for the omission from
the earlier notice of appeal of the
two procedural points are not entirely satisfactory. The procedural
points were not new. They
were argued before and dismissed by
Pienaar SM on 19 January 1998. Their exclusion from the earlier
notice of appeal was due to
carelessness. Carelessness is not in the
ordinary course a sufficient excuse. However, the appeal raises
intricate questions of
interpretation of the Labour Relations Act 28
of 1956 (‘the Act’) and, being arguable, I think that the
application for condonation
of all the procedural defects should be
granted.
[3] An application for the
establishment of a conciliation board was received by the
authorities on 10 January 1996. The board was,
however, never
convened. This had also at one time been raised by the appellant as
an objection. It was withdrawn after the presiding
officer had
indicated that he did not consider it to be any good.
[4] The point which is now taken by
the appellant is that the dispute was referred to the industrial
court before a conciliation
board had been established and that this
vitiated the proceedings before the court
a quo
. Mr Beaton
argued on behalf of the appellant that section 46(9) of the Act
contemplates a referral of a dispute to the industrial
court only
after the referral thereof to conciliation (by an industrial council
or conciliation board) and, moreover, only after
the relevant body,
in this case the conciliation board, had failed to settle the
dispute.
[5] The proceedings before the
industrial court were vitiated, so Mr Beaton argued, because the
application for the establishment
of the conciliation board did not
amount to a referral of the dispute to the board. Such a referral
could only, at best for the
applicant, occur when the inspector
charged by section 35 with the establishment of the board determined
its terms of reference.
Mr Beaton was ready to concede that, in
practice, no further step which could be construed as a ‘referral’
was taken by an
applicant. The predicament of an applicant for a
conciliation board, faced with tardiness by an inspector in
establishing such
a board, was that the time period started to run
from the date of the application for the establishment of the
board. The board
was required to attempt to settle the dispute
within thirty days of this date. Within ninety days of the expiry of
the first thirty
days, an applicant was obliged, if the matter was
not settled and he or she wished to proceed, to refer it to the
industrial court.
If this was not done, the industrial court could
not hear the matter without having granted condonation for the late
lodging of
such a referral.
[6]
In casu
the conciliation
board was eventually established on 9 September 1996. By this time
the notice of application – the respondent’s
statement of case -
had already (on 12 June 1996) been referred to the industrial court.
It is evident from the facts recited above
that, although there was
a referral to a conciliation board and to the industrial court,
these events followed the wrong sequence.
[7] Section 46(9)(a) of the Labour
Relations Act 28 of 1956 (‘the Act’) provided that –
‘
The industrial court shall not
determine a dispute regarding an unfair labour practice unless such
dispute has been referred for
conciliation
¼
to a conciliation board.’
Paragraph (ii) set out the sequence
in which the dispute resolution procedure should occur. Once a board
had failed to settle a
dispute, it had, within a certain time frame,
to be referred to the industrial court ‘for determination.’
[8] I think that in order to solve
the puzzle of what to make of sections 35, 36 and 46(9) of the Act,
one should look carefully
at the structure of, particularly, section
46(9). The opening – and I think principal - injunction is that
‘the industrial
court shall not determine a dispute regarding an
alleged labour practice unless such dispute has been referred for
conciliation
to
¼
a conciliation board.’ (s46(9)(a)) The emphasis, plainly, is on
the
determination
of the dispute. That would appear to have
been the principal object of the Act: the industrial court was not
to embark on a hearing
of the dispute until that dispute had been
subjected to mediation. It is true that s 46(9)(b)(ii) then provides
that if a dispute
has been referred to a conciliation board, and
that board has failed to settle the dispute, it might be referred to
the industrial
court for determination. This makes it appear as
though the referral to the conciliation board had necessarily to
preceed the referral
(by which I meant the filing and service of the
notice of application) to the industrial court. In the light of the
legislative
purpose expressed in ss (a), the remaining provisions –
which are ancillary provisions dealing with the mechanics of a
referral
– are not to be read as meaning that it was imperative
for the sequence set out therein to be followed. As long as there
had
been conciliation, the industrial court was entitled, and
obliged, to determine the dispute. I do not think that, had there
been
no conciliation, it would have been beyond the court’s powers
to send the dispute for conciliation before allowing it to be
determined.
[9] The provisions requiring a
referral to the industrial court within certain time frames after
the failure to settle a dispute
were there to ensure the expeditious
determination of disputes. I do not think that it does violence to
the legislative intent
to hold that a referral to the industrial
court might precede the establishment of a conciliation board. If
the authorities failed
to establish such a board, an applicant would
have no other option. (Cf.
Ulac Prints (Pty) Ltd v Bulbulia NO &
Others
(1988) 9 ILJ 408 (W). Brassey et al,
The New Labour
Law
p.40;
Wepener v Natalse Landboukoöperasie Bpk
(1989)
10 ILJ 1173 (IC)). Even if an applicant failed to apply for the
establishment of a conciliation board, the only danger he
would run
was that the industrial court would refuse to determine a dispute
which came before it without it having been referred
to
conciliation. The determination process might not be started before
there had been a referral to conciliation. That process
started in
court. It did not begin with the preliminary procedure of referring
the dispute to the court.
[10] The second point which is, by
way of the condonation application, sought to be raised on appeal is
not stronger. In fact, it
is a good deal weaker. It is contended in
the alternative that the statement of case was filed late and that,
although it was accompanied
by an affidavit seeking condonation,
condonation was not granted. My view is that where the court dealt
with the dispute without
explicitly granting condonation it must be
considered to have been implicitly granted.
[11] It was not contended before us
that the industrial court incorrectly applied the principles
relating to compensation. It awarded
compensation on the footing
that the respondent was entitled to two and a half years’ salary.
She had by the time of the determination
been out of work for over
three years. She tried to find other work. Her evidence was that
each prospective employer (of whom there
were six) turned down her
application after, so she thought, having sought a testimonial on
her from the appellant. Of course,
the respondent could not know for
certain whether each prospective employer had done so, but the
probabilities favour the assumption
that each of them did. If the
appellant told such a prospective employer that the respondent was
suspected of complicity in a
robbery, it would explain why she
could find no other work. If it did not do so, I think that it
should have laid such evidence
before the court in order to
demonstrate that the respondent’s failure to find another job was
not of its making. In the absence
of evidence from its side, one
must assume that the appellant told prospective employers about the
respondent that which it has
never denied believing about her.
[12] I have no hesitation in saying
that I consider the industrial court’s award of compensation to
have been fair. I see no reason,
either, to interfere with the
court’s award of costs. The award rested on an acceptance of the
contention that the appellant
had a hopeless case and therefore
should not have pursued it. I do not think that if I had been in the
presiding member’s shoes
I would have rested my decision on quite
this basis. But I should certainly have found it unfair that a
respondent who conceded
having substantively and procedurally
unfairly dismissed an applicant should not pay that applicant’s
costs. The procedural points
and the quantum of the compensation
were not issues which should, in all fairness, have been canvassed
at the respondent’s expense.
I am therefore not inclined to
interfere with the discretion of the court
a quo
in its award
of costs.
The application for condonation is
dismissed with costs.
The appeal against the award of
compensation and the order for costs is dismissed with costs.
_____________
CONRADIE JA
I agree
_______________
NICHOLSON JA
I agree
_______________
MOGOENG AJA
9