Wardlaw v Supreme Moulding (Pty) Limited (JA31/04) [2007] ZALAC 2; [2007] 6 BLLR 487 (LAC); (2007) 28 ILJ 1042 (LAC) (10 January 2007)

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[2007] ZALAC 2
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Wardlaw v Supreme Moulding (Pty) Limited (JA31/04) [2007] ZALAC 2; [2007] 6 BLLR 487 (LAC); (2007) 28 ILJ 1042 (LAC) (10 January 2007)

22
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No. JA 31/04
In
the matter between:
ANA LUISA WARDLAW APPELLANT
And
SUPREME MOULDING (PTY) LTD RESPONDENT
JUDGMENT
ZONDO JP and BASSON AJA
[1] This is an appeal against a judgment and order of
Jammy AJ sitting in the Labour Court. His judgment is reported as
Wardlaw v Supreme Mouldings (Pty) Ltd (2004) 25 ILJ 1094 (LC).
The
appellant had been employed by the respondent as a financial manager.
She was dismissed from the respondent’s employ. A dispute
arose
between the parties as to the fairness of the appellant’s
dismissal. The respondent said that it dismissed her because she
had
been guilty of misconduct. She did not accept that this was the
reason for her dismissal and alleged that she was dismissed for
pregnancy or for a reason related to her pregnancy. The respondent
rejected this.
[2] The reason for the appellant’s dismissal as
alleged by the appellant, namely, pregnancy or a reason related to
pregnancy, is
one of those contemplated in sec 191(5)(b) of the
Labour Relations Act, 1995 (Act 66 of 1995) (
“the Act”
).
Sec 191(5)(b) provides that, if an employee alleges as a reason for
his or her dismissal a reason contemplated therein, the dispute
concerning the fairness of his or her dismissal must be referred to
the Labour Court for adjudication. Sec 191(5)(a) provides that,
if an
employee alleges as a reason for his or her dismissal a reason
contemplated therein, the dispute should be referred to arbitration.
[3] The reason alleged by the respondent in this case as
the reason for the appellant’s dismissal, namely, misconduct, is
one of
the reasons contemplated in sec 191(5)(a). If it had been
alleged by the appellant, sec 191(5)(a) would have required that the
dismissal
dispute be referred to arbitration. However, it was alleged
by the employer and the Act does not attribute to the employer’s
allegation
in this regard the same effect as it does to an allegation
by the employee. The appellant referred the dispute to the Labour
Court
for adjudication. The respondent took the point that the Labour
Court did not have jurisdiction to adjudicate this dispute because,
as far as it was concerned, the reason for the appellant’s
dismissal related to her conduct and fell under sec 191(5)(a) of the
Act. The appellant insisted that the Labour Court had jurisdiction.
[4] The Labour Court heard oral evidence in this matter
in order to determine the reason for the appellant’s dismissal and,
therefore,
to also determine whether it had jurisdiction. In his
judgment Jammy AJ analysed the evidence and came to the conclusion
that the
reason for the appellant’s dismissal was not her pregnancy
or a reason related to her pregnancy but it was her conduct. He held
that the Labour Court had no jurisdiction to adjudicate the
unresolved dismissal dispute relating to the appellant’s conduct as
that was required to be referred to arbitration. He awarded the
respondent costs.
[5] The appellant now appeals against the judgement of
the Labour Court. Leave to appeal was granted by the Labour Court. On
appeal
the appellant attacked the decision of the Labour Court that
it had no jurisdiction to adjudicate the dismissal dispute in so far
as it related to her dismissal for misconduct. It was submitted on
her behalf that sec 191(5) of the Act makes the employee’s
allegation
as to what the reason for dismissal is the final
determinant in regard to whether the dispute should be referred to
arbitration or
adjudication. It was submitted that, once the employee
has alleged as a reason for his or her dismissal a reason that is
contemplated
in sec 191(5)(b), the Labour Court has jurisdiction to
adjudicate the whole dispute and not just part of it. In other words,
so went
the argument, the Court cannot in such a case do what the
Court a quo did in this case, namely, determine whether the reason
for
dismissal alleged by the employee is the reason for dismissal
and, if it finds that such reason is not the reason for dismissal,
stop the proceedings and decline to determine whether the dismissal
was fair when regard is had to the true reason for dismissal.
[6] The respondent contended that the scheme of the
dispute resolution system of the Act is such that much importance is
placed upon
some disputes going to arbitration and others to
adjudication. It was submitted that the Court should not lightly
construe the Act
as permitting the Labour Court to adjudicate a
dispute that should go to arbitration. The respondent supported the
approach adopted
by the Labour Court. The appellant criticised the
approach adopted by the Labour Court as undermining the expeditious
resolution
of disputes which is one of the primary objects of the
Act, costly and creating a duplication of processes. We now turn to
consider
these contentions.
Jurisdiction
of the Labour Court in dismissal disputes
[7] The question that this appeal raises flows from the
fact that in terms of sec 191(5)(a) and (b) of the Act what appears
to determine
whether a dismissal dispute should be referred to
arbitration or to the Labour Court for adjudication is the allegation
made by the
employee as to what the reason for dismissal is. If the
reason for dismissal alleged by the employee is one contemplated in
sec 191(5)(a),
or, if the employee doesn’t know what the reason for
the dismissal is or if it is a situation that falls under sec
191(5)(a)(ii)
or if the dispute concerns an unfair labour practice,
the dispute is required to be referred to arbitration. If the reason
for the
dismissal as alleged by the employee is one contemplated in
sec 191(5)(b), the dispute is required to be referred to the Labour
Court
for adjudication. This appeal raises the question of what
should be done by the Labour Court when the reason for dismissal
alleged
by the employee falls under sec 191(5)(b) – which means
that the dispute should be referred to the Labour Court for
adjudication
– and the reason for dismissal alleged by the employer
is one that falls under sec 191(5)(a) – which means that, if it had
been
alleged by the employee, the dispute would have been required to
be referred to arbitration.
[8] In such a situation does the Court adopt the
attitude that the Act requires the forum to be determined by the
reason for dismissal
that is alleged by the employee and that, once
that allegation has been made, the Court has jurisdiction up to
finality even if it
later finds that the reason for dismissal alleged
by the employee is not the true reason for the dismissal? For
convenience we shall
call this school of thought the “
formalistic
school of thought
”. Is the position that the Court has
jurisdiction only provisionally until it has made a finding as to
what the true reason for
the dismissal is? In terms of this school of
thought, if an employee has alleged a reason for dismissal that falls
under sec 191(5)(b)
of the Act, the Labour Court assumes jurisdiction
in respect of the dispute provisionally pending its decision whether
the true reason
for the dismissal is the one alleged by the employee
or another reason which falls within sec 191(5)(b) or another reason
that falls
under sec 191(5)(a) of the Act. If at a later stage the
Labour Court concludes that the true reason for dismissal is one
contemplated
in sec 191(5)(b), it proceeds to adjudicate the dispute
to finality. If, however, it concludes that the true reason for the
dismissal
is one that falls under sec 191(5)(a), the Court declines
jurisdiction and either it or any interested party may then refer the
dispute
to the forum with jurisdiction for arbitration. For
convenience we shall refer to this school of thought as “
the
substantive school of thought
”. We now turn to discuss these
schools of thought in greater detail. In the process we shall compare
the pros and cons of the two
schools of thought.
[9] Sec 191(5)(a) and (b) of the Act read as follows:
“
(5) if
a council or a commissioner certifies that the
dispute
remains
unresolved, or if 30 days have expired since the
council
or the commission received the referral and the
dispute
remain
unresolved –
the
council
or the commission must arbitrate
the
dispute
at the request of the
employee
if –
the
employee
has alleged that the reason for
dismissal
is related to the
employee’s
conduct or
capacity, unless paragraph (b) (iii) applies;
the
employee
has alleged that the reason for
dismissal is that the employer made continued employment
intolerable or the employer provided
the employee with
substantially less favourable conditions or circumstances at work
after a transfer in terms of section 197
or 197A, unless the
employee
alleges that the contract of employment was
terminated for a reason contemplated in section 187;
[Sub-para. (ii) substituted by s. 46 (e) of the Act No. 12 of
2002.]
(iii)the
employee
does not know the reason for
dismissal
; or
(iv)the
dispute
concerns an unfair labour practice; or
[Sub-para. (iv) added by s.46 (f) of Act No. 12 of 2002.]
the
employee
may refer the
dispute to
the Labour Court for adjudication if the employee has alleged that
the reason for
dismissal
is –
automatically unfair;
(ii) based on the employer’s
operational
requirements
;
(iii)the
employee’s
participation in a
strike
that does not
comply with the provisions of Chapter IV; or
(iv)because
the
employee
refused to join, was refused membership of or was
expelled from a
trade union
party to a closed shop agreement.”
[10] On the strength of the provisions of sec 191(5) one
would be tempted to conclude that the formalistic school of thought
is the
one that should carry the day. However, sec 191(5) must not
and cannot be read in isolation. There are also the provisions of sec
157(1) and (5) and those of sec 158(2) of the Act which have a
bearing on the question before us. We shall deal with each one of
these sections shortly.
The
formalistic school of thought
[11.1] This school of thought entails that the employee
would allege what the reason for the dismissal is and the reason he
would
allege would be a reason that falls under sec 191(5)(b) of the
Act. That would mean that the dispute should be referred to the
Labour
Court for adjudication. Once such an allegation has been made,
the Labour Court would have jurisdiction to adjudicate the dispute
upto the end even if during the adjudicatory process or trial the
Court became convinced that the reason for dismissal is not the
one
alleged by the employee but is a different one and that reason falls
under sec 191(5)(a) of the Act. Of course, a reason for
dismissal
alleged by the employee which falls under sec 191(5)(a) would in
terms of those provisions have required that the dispute
be referred
to arbitration.
[11.2] This school of thought is based on the notion
that sec 191(5) of the Act represents a legislative choice that, for
better or
for worse, what will determine whether a dismissal dispute
should go to arbitration or adjudication is what the employee alleges
is the reason for dismissal; in this context this school of thought
would emphasise that, quite obviously, the drafters of the Act
had
various options available to them to choose from with regard to what
should determine whether a particular dismissal dispute
goes to
arbitration or adjudication; in this regard it could be said that one
option would have been for the drafters to say what
they ultimately
said, namely, that the reason for dismissal as alleged by the
employee will determine whether the dismissal dispute
should be
referred to arbitration or to adjudication.
[11.3] Another option was for the drafters to provide
that the determinant would be the reason for dismissal as alleged by
the employer.
Yet another option was for the drafters to provide that
the determinant would be what the true reason for the dismissal is.
Another
one would have been what appears to the Court or CCMA or
bargaining council at the commencement of the trial or arbitration to
be
the reason for dismissal.
[11.4] The reasoning in regard to this school of thought
is that the drafters of the Act would have been alive to all of these
options
available to them and, in their wisdom, they chose one of
these, namely, the one in terms of which the determinant of whether a
dismissal
dispute will be referred to arbitration or adjudication
will be the reason for dismissal as alleged by the employee. The
argument
would be that that was a policy choice made by the drafters
and it is not for the Courts in interpreting the statute to question
the wisdom of that policy choice. It would be said that, firstly,
that choice was for the legislative arm of government to make and,
in
terms of the doctrine of the separation of powers, the judiciary
should respect that choice. In this regard it would be emphasised
that different people, faced with the same options, could have made
different choices.
[11.5] This school of thought gives effect to the
choice made by the legislative arm of government and avoids a
situation where the
judiciary, through the way it interpretes the
statutory provisions, imposes on the statute what would have been its
policy choice
if it had been for it to make the choice.
[11.6] The great advantage or benefit with this school
of thought is that it promotes certainty because, to know whether a
dispute
should go to arbitration or adjudication, all that needs to
be done is to establish what the employee alleges is the reason for
the
dismissal; that can be established quickly and without the court
having to embark upon any kind of protracted inquiry into the true
reason for the dismissal which may require the hearing of oral
evidence.
[11.7] It may also be said that another advantage or
benefit with this school of thought is that it promotes the
expeditious resolution
of disputes which is one of the primary
objects of the Act. It would be said to promote this objective
because, once the Court assumes
jurisdiction with regards to a
dismissal dispute, it retains that jurisdiction right up to the end.
At that stage it resolves the
dispute by giving its judgment on the
merits and does not at any stage decline to go into the merits of the
dispute and cause the
dispute to be diverted to arbitration when it
forms the view that the reason for dismissal is different from the
one alleged by the
employee.
[11.8] Another advantage or benefit with this school of
thought may be said to be that it is cost-effective in that, once
there is
a trial in a particular forum, it proceeds to finality and
only the costs of that trial arise whereas, where the matter must be
referred
to another forum after some evidence has been led in the one
forum, that results in higher costs or even a duplication of costs.
[11.9] This school of thought is convenient to
witnesses because they are called to one forum where they give their
evidence once
and for all and will not later be called to give the
same evidence in another forum if the Court declines to proceed to
finality
with the matter.
[12] This school of thought can be criticised on the
bases that:
by having as its foundation a mere allegation (as to
the reason for the dismissal) which prevails even when, it is not
the true
reason for dismissal, it elevates form over substance –
and that goes against a long line of cases in our law which are to

the effect that courts should look at substance and not form to
determine issues; the argument here would in part be that it is
difficult to accept that the drafters of the Act deliberately chose
form over substance to determine jurisdiction.
The dispute resolution dispensation envisaged in the
Act creates different processes for the resolution of different
disputes
and different jurisdictions for arbitral tribunals such as
the CCMA and bargaining councils, on the one hand, and, the Labour

Court, on the other, which provides adjudication; this school of
thought allows the Labour Court to usurp the jurisdiction of
the
CCMA and bargaining councils when it deals with the merits of
dismissal disputes where it is clear that the true reason for
the
dismissal is misconduct or incapacity simply because the employee
may earlier on have made an untrue allegation as to the
reason for
the dismissal. The argument in this regard would be that whatever
happens with regard to the issue of jurisdiction,
a clear line must
be drawn between the roles of the CCMA and bargaining councils, on
the one hand, and, the role of the Labour
Court, on the other.
With regard to the argument that this approach may be
said to promote the expeditious resolution of disputes, a possible
answer
could be that the significance thereof should not be
exaggerated. This would be said on the basis that, once the Labour
Court
has adjudicated the merits of a dismissal dispute that ought
to have gone to arbitration if the employee had alleged the true

reason for dismissal, the appellate process which is available to
the losing party in the Labour Court may, if he appeals, delay
the
ultimate finalisation of the dispute whereas, if the Labour Court
were to have referred the dispute to the CCMA for arbitration,
that
may well have delayed finality for the time being but, once the
CCMA had arbitrated the dispute, such award would be final
in terms
of the Act and there would be no appeal process available to the
losing party but only a review process.
This school of thought may be said to encourage
employees to by-pass the CCMA and bargaining councils when they
prefer their dismissal
disputes to be adjudicated by the Labour
Court. Some answer to this argument would be that the Court would
be able to discourage
that by awarding appropriate punitive cost
orders against employees who deliberately or without good cause
make untrue allegations
as to the reason for dismissal for the
purpose of side-stepping the CCMA and bargaining councils.
The substantive school of thought
[13] The substantive school of thought entails that the
Labour Court should only provisionally accept the employee’s
allegation
as to the reason for dismissal until it makes a finding as
to the true reason for dismissal. If the reason it finds is the same
reason
as the one that was alleged by the employee, no difficulty
arises and the Court proceeds to adjudicate the dispute on the
merits.
If, however, the reason for dismissal that it finds is not
the one alleged by the employee but a reason that falls under sec
191(5)(a),
the Court should refuse to adjudicate the dispute and let
it be referred to arbitration by the CCMA or a bargaining council
with
jurisdiction, as the case may be. We refer to this school of
thought as the substantive school of thought because in the final
analysis
it seeks to look at substance with regard to the reason for
dismissal in determining whether a dispute should finally go to
arbitration
or adjudication and not simply at the employee’s mere
allegation as to the reason for dismissal. We appreciate that there
may be
reasons which may also have justified calling this school of
thought the formalistic school of thought and the other one the
substantive
school of thought. The terminology is used purely for
convenience – and nothing really turns on it.
[14] In favour of this school of thought it can be said
that it gives effect to the different processes to which different
disputes
are subject in terms of the Act and does not blur the
distinction between disputes that should go to different processes
and fora.
It can be criticised on the basis that it subjects disputes
to a duplication of processes. It can also be said to be very costly.
Indeed, it can also be said that it can unduly delay the finalisation
of some disputes.
[15] It can also be said that this school of thought has
the advantage that it prevents employees from bringing to the Labour
Court
dismissal disputes that do not deserve or are not required to
be referred to the Labour Court. In addition to refusing to deal with
the merits of the dismissal dispute where the Court takes the view
that the reason for dismissal is one that falls under sec 191(5)(a),
it can also award a punitive cost order against the employee if it is
satisfied that he had no grounds whatsoever to believe his
allegation
to be true and simply made it to circumvent the CCMA or a bargaining
council. Of course, it is also true that in most
cases it would be
difficult for the employer to recover such costs from the employee as
the latter might not have any assets that
may be attached to satisfy
such a cost order. However, there will be some where such cost orders
may be satisfied.
Which school of thought is the correct one?
[16] To determine which school of thought is recognised
by the Act, it is necessary to refer to certain provisions of the
Act. Sec
157(1) of the Act provides as follows:-
“157
Jurisdiction of Labour Court. –
(1) Subject to the
Constitution and section 173, and except where this Act provides
otherwise, the Labour Court has exclusive jurisdiction
in respect of
all matters that elsewhere in terms of this Act or in terms of any
other law are to be determined by the Labour Court.”
[17] It is clear from sec 157(1) that the Labour Court
does not have “
exclusive jurisdiction where this Act provides
otherwise.
” It has “
exclusive jurisdiction in respect of
all matters that elsewhere in terms of this Act or in terms of any
other law are to be determined
” by it. However, all of this is
subject to the Constitution and sec 173 of the Act. Sec 173 of the
Act deals with the jurisdiction
of this Court and is of no relevance
to the issue before us. Sec 157(5) is very important. It provides:
“
(5) Except as provided in section 158(2), the
Labour Court does not have jurisdiction to adjudicate an unresolved
dispute if this
Act requires the dispute to be resolved through
arbitration”.
This provision lays down a general rule to which there
is only one exception. The general rule is that
“(t)he Labour
Court does not have jurisdiction to adjudicate an unresolved dispute
if this Act requires the dispute to be resolved
through arbitration
”.
This contemplates, for example, a dispute concerning the
fairness of a dismissal where the reason for the dismissal as alleged
by
the employee is misconduct or alleged misconduct on the part of
the employee. This means that as a general rule the Labour Court
has
no jurisdiction to adjudicate such a dispute.
[18] The exception to the general rule referred to above
is the one provided for in sec 158(2). Sec 158(2) of the Act
provides:
“
(2) If at any stage after a dispute has been
referred to the Labour Court, it becomes apparent that the dispute
ought to have been
referred to arbitration, the Court may –
(a) stay the proceedings and refer the dispute to
arbitration; or
(b) with
the consent of the parties and if it is expedient to do so, continue
with the proceedings with the Court sitting as an arbitrator,
in
which case the Court may only make any order that a commissioner or
arbitrator would have been entitled to make.”
[19] It seems to us that the effect of sec 157(5) read
with sec 158(2) is in part that the only situation where the Labour
Court has
jurisdiction to deal with a dispute that is otherwise
required to be referred to arbitration in terms of this Act is a
situation
that falls within the ambit of sec 158(2). Leaving out sec
158(2)(a) which does not seem to contemplate the Labour Court
adjudicating
such a dispute, that scenario seems to be only the one
contemplated by sec 158(2)(b) of the Act. Even if both parties to a
dispute
were to agree to ask the Labour Court to resolve a dispute
which ought to have been referred to arbitration, for example, a
dispute
concerning a dismissal for misconduct, that would not be
enough to confer jurisdiction on the Labour Court to resolve such a
dispute.
In addition to the consent of both parties, it would have to
be shown that it is expedient for the Court to continue with the
proceedings
but, even then, it will not sit as a Court but its Judge
will have to sit as an arbitrator.
[20] Strictly speaking, this suggests that sec 158(2)(b)
is not a situation where the Labour Court has jurisdiction to
adjudicate
a dispute that ought to have been referred to arbitration
because in terms of that provision it will not adjudicate the dispute
but
will arbitrate it. This demonstrates that the drafters of the Act
placed much significance on the different dispute resolution
processes
and the different fora for the different disputes.
[21] In the light of all of the above the conclusion is
inescapable that the formalistic school of thought is not one that
enjoys
the recognition of the Act. The substantive school of thought
is the one that is very close to the school of thought that enjoys
that recognition. We say this because sec 157(5), read with sec
158(2), clearly envisages a situation where the Labour Court
initially
takes as correct the employee’s allegation of what the
reason for dismissal is and proceeds with the process of hearing the
matter
until it is “
apparent
” to it that the reason for
dismissal is a different one and it is one falling under sec
191(5)(a). In such a case sec 158(2) is
triggered. Once it is
apparent to the Court that the dispute is one that ought to have been
referred to arbitration, the Court deals
with the matter in terms of
either sec 158(2)(a) or (b). It cannot deal with it outside the ambit
of those provisions. Accordingly,
it has no power to proceed to
adjudicate the dispute on the merits simply because it is already
seized with the matter. To do so
would be in conflict with the
provisions of sec 157(5) and 158(2) of the Act.
[22] A question that arises from sec 158(2) is: when
does it become apparent to the Labour Court that a dispute is one
that ought
to have been referred to arbitration? To answer this
question within the context of a dismissal dispute, it is necessary
to bear
in mind the provisions of sec 191(5)(a) and (b). In terms of
those provisions the employee’s allegation of what the reason for
dismissal is provisionally channels the dispute to either arbitration
or adjudication after conciliation has failed. Where the employee
alleges that he does not know the reason for the dismissal, the
dispute is channelled to arbitration. An unfair labour practice
dispute
is also required to be referred to arbitration.
[23] The significance of sec 191(5)(a) and (b) seems to
be this. What is contemplated by the scheme of the Act is that, if
the employee
has alleged a certain reason as the reason for dismissal
and that reason is one that falls within sec 191(5)(b) and the Court
does
not at any stage think that that reason is not the reason for
dismissal, the Court proceeds to adjudicate the dispute and delivers
a judgement. Where as a reason for dismissal, the employee has
alleged a reason that falls within sec 191(5)(b), the Court
provisionally
assumes jurisdiction but, if the Court later takes the
view or it later becomes “
apparent
” to the court that the
reason for dismissal is one that falls under sec 191(5)(a), it then
declines jurisdiction and follows the
sec 158(2)(a) or (b) route.
[24] In the light of
the above it seems to us that the employee’s allegation of the
reason for dismissal as contemplated in sec
191(5) is only important
for the purpose of determining where the dispute should be referred
after conciliation but the forum to
which it is referred at that
stage is not necessarily the forum that has jurisdiction to finally
resolve the dispute on the merits.
That may depend on whether it does
not later appear that the reason for dismissal is another one other
than the one alleged by the
employee and is one that dictates that
another forum has jurisdiction to resolve the dispute on the merits.
Once a dispute has been
referred to, for example, the Labour Court,
the Labour Court provisionally assumes jurisdiction. That assumption
of jurisdiction
is conditional upon it not later becoming “
apparent
”
to the Court within the contemplation of sec 158(2) of the Act that
the reason for the employee’s dismissal is one that falls
within
sec 191(5)(a) of the Act. We say it is provisional or conditional
because if it later becomes “apparent” that the dispute
is one
that ought to have been referred to arbitration, the Court will
decline jurisdiction and have the dispute referred to arbitration.
[25] In this case the Labour Court did not deal with the
matter on the basis that at a certain stage of the proceedings it
became
“
apparent
” to it as contemplated by sec 158(2) that
the dispute ought to have been referred to arbitration and invoked
either sec 158(2)(a)
or (b) of the Act. In fact the Court a quo did
not refer to sec 157(5) and 158(2) of the Act at all. The provisions
were probably
not drawn to the Court a quo’s attention. The Court a
quo heard oral evidence and examined the evidence to establish
whether the
reason for dismissal alleged by the employee was the
reason for the dismissal. In terms of sec 158(2) of the Act it seems
that it
is not necessary to go that far. If “
it becomes apparent
[to the Labour Court] that the dispute ought to have been referred to
arbitration
”, this will suffice for the purpose of the
invocation of sec 157(2)(a) or (b). Probably, the drafters of the Act
wanted to avoid,
as far as possible, that the Court should go too
much into the matter to establish the true reason before invoking sec
158(2) because
that would not be cost-effective, could undermine the
objective of an expeditious resolution of disputes and could also
result in
a duplication of proceedings.
[26] The Court a quo ought to have invoked the
provisions of sec 158(2)(a) and stayed the proceedings and referred
the dispute arbitration.
[27] In the premises we make the following order:
1. Subject to 2 below, the appeal is dismissed with
costs.
2. The order of the Labour Court is amended so as to
delete par 11.2.2 thereof and to replace it with the following order:
“11.2.2.
The proceedings are hereby stayed in terms of
sec 158(2)(a)
of the
Labour Relations Act, 1995
and the dispute is hereby referred to
arbitration under the auspices of the Commission for Conciliation,
Mediation and Arbitration.”
_____________________
Zondo JP and Basson AJA
I agree.
___________
Musi AJA
Appearances
For the appellant : Mr A.G. Heyns
Instructed by : Viljoen Incorported
For the respondent: Mr R.B. Wade
Instructed by : Snyman Van der Heever Heyns Inc
Date
of judgment : 10 January 2007