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[2000] ZALAC 27
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JDG Trading (Pty) Ltd t/a Bradlows Furnishers v Laka NO and Others (JA8/2000) [2000] ZALAC 27; [2001] 3 BLLR 294 (LAC); (2001) 22 ILJ 641 (LAC) (14 December 2000)
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IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JA8/2000
JDG
TRADING (PTY) LTD t/a BRADLOWS FURNISHERS Appellant
and
LAKA,
AP NOMINE OFFICII First Respondent
PHUNGWAYO,
CHRISTINE Second Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION Third Respondent
J
U D G M E N T
________________________________________________________________________
DAVIS
AJA:
[1] First
respondent handed down an arbitration award on 14 April 1997 ordering
appellant to reinstate second respondent as an employee
"with
immediate effect without any loss of benefits".
[2]
Appellant failed to reinstate second respondent immediately and
initially sought to set aside the award. It however withdrew its
application and eventually reinstated second respondent on 14
November 1997 and paid her for the period between the date of her
dismissal
and reinstatement. Apart from the salary, she had earned
commission at the time of her dismissal but nothing was paid in
respect
thereof for the period concerned.
[3]
This led second respondent to apply to third respondent "to
interpret the arbitration award whether or not the employer party
complied therewith". She contended that she was entitled to be
paid average commission as part of the benefits due to her calculated
on the basis that she had been in the employ of appellant during the
period when the latter had barred her and prevented her from
so
working.
[4]
Second respondent subsequently made an order which read as follows:
"This
is how the award should be interpreted. That applicant must be
reinstated as she is, that she be paid her basic salary
as she was,
further that
, she be paid commission for the period she was
not paid same. That such commission shall be average commission to be
worked on the
basis of 52 week period prior to her dismissal in terms
of respondent's policy". This award was served on appellant on
23 April
1998.
[5]
In an application of 2 June 1998 to the Labour Court, appellant
sought to set aside both awards . Francis AJ
dismissed the
application and made no award as to costs. The learned judge decided
that first respondent had become
functus officio
after
he had made the first award and that appellant had accordingly
brought the application for the setting aside of such an award
outside the period laid down in terms of section 145(1) of the Labour
Relations Act 66 of 1995 (the "LRA").
[6]
Mr Nel, who appeared on behalf of appellant, attacked the finding of
the Court
a quo
,
that first respondent was
functus
officio
after he made the first award , and submitted that
he had only become
functus officio
after he had made the
second award. He further submitted in respect of the merits of the
application in terms of section 145 that
second respondent was bound
in terms of a collective agreement dated 22 January 1997 to have an
alleged unfair dismissal which she
brought before the first
respondent determined by private arbitration.
[7]
The enquiry as to whether first respondent was
functus officio
after he made the award
is, in my view, an irrelevant one.
An analysis of the two awards reveals that the second amends the
first. Furthermore irrespective
of whether first respondent was
functus officio
after making the first award, he made the
second and it has effect until set aside by a court.
[8]
In the first award the reinstatement was provided "without any
loss of benefits" meaning that second respondent's reinstatement
is to be accompanied by payment of her full salary and other
remuneration. This other remuneration includes commission which she
would have earned during the period in which she was unable to work.
In the absence of the second award, second respondent would
have been
entitled to sue appellant for the amount which she would have earned
in commission had she worked at the time. This would
have
necessitated an enquiry into a multitude of factors including the
state of the market at the relevant time and second respondent's
record
in earning commission. In making the second award,
first respondent simplified the enquiry as to the quantum of the
commission by
stating that it must be calculated on the basis of 52
weeks of earnings and commission during the period prior to second
respondent''
dismissal. It follows that by providing a clear
mechanism for the calculation of commission, first respondent amended
the first award.
[9]
Appellant was thus bound by the first award as amended and therefore
by one award which came into existence in its present form
on the
date of the second award. It follows that the date of the award for
the purposes of section 145(1)(a) of the LRA was that
of the second
award.
[10] On the
basis of this finding it is common cause that the application in
terms of section 145 was brought in time. It follows
thus that the
court
a quo
erred in finding that the application was not
brought timeously.
[11]
On the basis of this finding, the question arises as to whether first
respondent exceeded his powers in terms of section 145(2)(a)(iii)
-
an enquiry which
Francis AJ
was not required engage in the
light of his finding that the application had been brought out of
time. Appellant and second respondent
were parties to a collective
agreement signed on the 22 January 1997, in terms of which all
disputes relating to unfair dismissals
were to be determined by
private arbitration. The dispute of the appellant and second
respondent arose on 24 January 1997, being
the date of her dismissal.
[12]
The question as to whether first respondent had the necessary
jurisdiction to hear the matter was raised before first respondent.
In his award first respondent describes the point
in limine
raised by appellant thus: "The company representatives
raised an issue of whether or not this matter is properly before the
CCMA
arbitrator, submitting that the Company and the relevant union
have signed a document called Relationship Agreement. They submitted
that this document regulates dispute resolution processes and the
CCMA does not have jurisdiction over this matter. The Union in
reply
expressed surprise that company representatives raised this point.
The Union submitted that, the company raises this point
only to delay
the resolution of this dispute. The company has not raised this point
in the conciliation process, it did not raise
this point in the
conciliation process, it did not raise this point in the
pre-arbitration conference which the two parties held.
The Union
further submitted that when the disciplinary process against their
members starting the said Relationship Agreement was
not signed,
therefore that agreement should not affect this process."
[13] First
respondent overruled the objection without initially giving reasons.
In the award of 29 April 1997, he provided the reasons
for overruling
the objection. He decided that the CCMA has an overriding
jurisdiction over labour disputes which fall within the
scope of the
LRA. He further found that when the relationship agreement had been
signed the process leading to applicant's dismissal
had already begun
and further that since the LRA encourages speedy resolution disputes
and since the matter was before the CCMA,
the arbitration should
continue.
[14]
This conclusion is manifestly incorrect. The relationship agreement
was signed on 22 January 1997 and was clearly applicable
to a dispute
which arose on 24 January 1997. Thus first respondent did not have
the required jurisdiction to hear the matter. Appellant
did not
immediately apply to the Labour Court for a review of this decision
but continued to put its case before first respondent.
Only after the
second award was handed down did appellant make application in terms
of section 145 of the LRA for an order to review
and set aside the
two arbitration awards made by first respondent , namely the award
dated 14 April 1997 and the later award of 23
April 1998.
Significantly no application for review was made pursuant to the
initial award of 14 April 1997.
[15] The
question therefore arises as to whether the facts of the present
dispute fall within the framework of the judgment delivered
by this
court in
Fidelity Guards Holdings (Pty) Ltd v Epstein NO and Two
Others
(case No. DA 25/99). In that case appellant had launched
an application in the Labour Court to have the Commissioner's award
reviewed
and set aside. The review application was based
inter
alia
on an issue of jurisdiction, namely that the Commissioner
who arbitrated the dispute had no jurisdiction. It was argued that
the
conciliation proceedings had been invalid in that the aggrieved
employee had not made an application for condonation for the late
referral of the dispute even though it had been referred to
conciliation outside of the thirty days statutory period and there
had
been no condonation of late referral by the Commissioner.
[16]
In upholding the decision of the court
a quo
to dismiss the
application for a review on the grounds of lack of jurisdiction,
Zondo JP
agreed with the reasoning of the court
a quo
,
that if an administrative act of certification is invalid it must be
challenged timeously. As the learned Judge President said at
para 15,
"a question which arises in a case such as this one is at what
stage of the dispute resolution process contemplated
by the Act
should a party who objects on one or other ground to the processing
of the dispute institute review proceedings? In the
absence of a
statutory provision to the contrary, I am of the opinion that it
should be done within a reasonable time. The question
which arises is
whether that means before any further steps are taken after the event
giving rise to the objection or that means
within a reasonable time
after the party has allowed the entire process to be concluded so
that it can see whether its objection
does not become academic for
one or other reason in the process".
[17]
Although the court in the
Fidelity Guards
case,
supra
did not lay down a fixed rule as to when a party should raise a
jurisdictional objection before the appropriate court, the judgement
placed the emphasis on the bringing of the challenge within a
reasonable time.
[18] In the
present case, the objection was raised at the commencement of the
proceedings on 11 April 1997 on which date, first respondent
overruled the objection. After the arbitration award was handed down
by first respondent on 14 April 1997, nothing occurred until
second
respondent brought an application in terms of section 158(1)(c) to
make the award an order of court. Appellant then filed
an application
in terms of section 145 of the Act to review and set aside this award
on the basis that the dispute was subject to
a private arbitration
agreement and that accordingly first respondent had no jurisdiction
to hear the matter. This application was
however withdrawn during
July 1997 and second respondent was reinstated on 14 November 1997.
[19]
On 26 February 1998 second respondent applied to first respondent for
an interpretation of the award. The second award was then
served on
appellant on 23 April 1998. It was only after receiving the second
award that appellant applied to set aside both awards
and raised the
question of jurisdiction as a ground of review. Appellant's approach
to the question of first respondent's jurisdiction
appears to have
been determined by the content of the award .Appellant decided that
it was prepared to abide the first award and
thus withdrew its
application for review. Only when the second award changed the
implications of the first award, did the question
of jurisdiction
become of such importance that an issue raised more than a year
previously had to be resuscitated.
[20] In my
view the length of time taken to apply for review and prosecute the
case represents the kind of unreasonableness to which
Zondo JP
referred in the
Fidelity
case,
supra
. The application
for review was launched more than a year after the initial award was
issued. Further the appellant did not pursue
its right to launch
review proceedings until it became dissatisfied about an aspect of
the amended award, after apparently having
been satisfied with the
initial award. This conduct represents an unreasonable delay of a
kind which runs counter to the purpose
of the Act, namely to affect
expeditious dispute resolution . The contrary conclusion would afford
a party an opportunity to take
its chances with the outcome and then
apply for review more than a year later - a decision which would
retard rather than promote
the speedy resolution of the dispute.
[18] When
this matter originally came before us on 9 November 2000, no heads of
argument had been filed on behalf of the second respondent.
Her
attorney of record, Mr Kruger appeared, however, on her behalf and
after some debate we postponed the matter until 4 December
2000. Mr
Kruger was placed on terms to file heads of argument as well as an
explanation on affidavit for the failure of his firm
to have filed
heads of argument timeously. Mr Kruger subsequently filed heads of
argument on the second respondent's behalf together
with an
explanatory affidavit. However he failed to appear before us on 4
December 2000. In these circumstances the conduct of his
firm ought
to be investigated by the Law Society.
[19]
In the result, I make the following order:
The
appeal is dismissed.
The
appellant is ordered to pay second respondent's costs of the appeal.
The
Registrar is requested to furnish the Law Society of the Transvaal
with a copy of this judgment and to draw its attention to paragraph
18 thereof, and with a copy of the affidavit and heads of argument of
attorney H.W. Kruger, both dated 20 November 2000.
________________
DAVIS
AJA
I
agree.
_________________
ZONDO
JP
I
agree.
__________________
GOLDSTEIN
AJA
For
the Appellant:
A.J. Nel
Instructed
by Snyman, Van der Heever Heyns
For
Second Respondent:
Attorney Hilmer W. Kruger
(But
no appearance on 4 December 2000)
Date
of Hearing:
9 November and 4 December 2000.
Date
of Judgment:
14
December 2000.