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[2009] ZALAC 7
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Khanyile v Billiton Aluminium SA Ltd t/a Hillside Aluminium (DA24/06) [2009] ZALAC 7 (24 February 2009)
I
N
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held in
Case no: DA24/06
In the matter between
Ntokozo Archibald
Khanyile
Appellant
And
Billiton Aluminium SA Ltd
Respondent
t/a Hillside Aluminium
___________________________________________________________
JUDGMENT
___________________________________________________________
ZONDO JP
Introduction
[1] This is an appeal from a judgment
by Steenkamp AJ in a review application that had been brought by
Billiton Aluminium SA Limited
t/a Hillside Aluminium against the
Commission for Conciliation, Mediation and Arbitration (“
the
CCMA
”), Mr AC
Zwane, a commissioner of the CCMA, and the present appellant. The
CCMA was the first respondent in the Labour Court,
Mr Zwane, the
second respondent and the present appellant, the third respondent. Mr
Zwane is a commissioner of the CCMA and he
issued the arbitration
award in the dispute between the present appellant and Billiton
Aluminium concerning the fairness or otherwise
of the dismissal of
the appellant by Billiton Aluminium from the latter’s employ
which is the subject of these proceedings.
The review application was
for an order reviewing and setting aside the arbitration award that
had been issued by the commissioner.
It would appear that in the
preparation of the record the CCMA and the commissioner were left out
as respondents. The attorneys
who represent appellants in appeals in
this Court should make sure that this kind of omission does not
occur. This is a second
case in a few days which I have become aware
of in which the CCMA and the commissioner who arbitrated the
dismissal dispute have
been left out in the citation in the appeal
although they were cited in the proceedings in the Labour Court. That
they do not oppose
the appeal does not justify their being left out.
If the order that is to made by this Court is intended to be binding
on them
as well, they should continue to be cited in all appeals. The
appeal record must be appropriately amended by the appellant to
ensure
that the CCMA and the commissioner are included as
respondents. Billiton Aluminium SA Ltd t/a Hillside Aluminium is to
deemed to
be the first respondent, the CCMA, the second respondent
and Mr AC Zwane the third respondent.
[2] The arbitration award was issued
under the provisions of the Labour Relations Act 1995, (Act 66 of
1995) (“
the
Act
”)
relating to compulsory arbitration of disputes concerning alleged
unfair dismissals. In terms of the arbitration award
the appellant’s
dismissal was found to have been unfair for lack of a fair reason and
the first respondent was ordered to
reinstate the appellant with
retrospective effect to the date of dismissal and to pay him an
amount of R436 000.00 which the commissioner
said represented a back
pay of 32 months (from August 2001 when the appellant was dismissed
to 2004 by which I think he meant April
2004 when the award was
issued).
[3] The full terms of the award –
leaving out the reasons for the award – were the following:
“
(a) The dismissal of [the
appellant] was substantively unfair.
[The first respondent] is ordered
to reinstate
[the
appellant] to the position he occupied prior to his dismissal on
terms and conditions no less favourable than those that
governed his
employment prior to his dismissal.
[The appellant’s] reinstatement in terms of
this award is retrospective to the date of his dismissal, 2 August
2001.
[The first] r
espondent
is to reinstate [the Appellant] within seven days of this award.
The [first] respondent is ordered
to pay an amount of R436 000,00 to [the appellant] as retrospective
payment. Such payment is
to be made to [the appellant] within 14
days of this award.”
[4]
The
first respondent was aggrieved by the arbitration award and brought
an application in the Labour Court for an order reviewing
and setting
the arbitration award aside in its entirety. The Labour Court, per
Steenkamp AJ, confirmed the finding previously made
by the
commissioner that the dismissal was substantively unfair but took the
view that the commissioner had not applied his mind
properly in
ordering the first respondent to reinstate the appellant. The order
that Steenkamp AJ made was in the following terms:
“
23.1 The dismissal of the [appellant], Mr
Khanyile, was not for a fair reason.
The [first] respondent is
ordered to pay the [appellant] compensation equivalent to 12
months’ remuneration, amounting
to R 163 500,00. Payment is
to be made within 14 days of this judgment.
There is no order as to costs.”
[5
] The
appellant was aggrieved by this outcome. He took this order to mean
that that part of the arbitration award which ordered
his
retrospective reinstatement and the payment of R 436 000,00 as
backpay to have been reviewed and set aside and replaced with
orders
in 23.2 and 23.3 of Steenkamp AJ’s judgment. The first
respondent also understood Steenkamp AJ’s order in the
same way
as the appellant. Consequently, even the appeal before us was argued
on the footing that that is what the order means.
The truth of the
matter is that there is no order made by Steenkamp AJ which reviewed
and set aside any part of the commissioner’s
arbitration award.
Accordingly, technically it would be fair to say that the award made
by the commissioner stands as it was issued.
However, it is clear
from the reasons for judgment contained in Steenkamp AJ’s
judgment that he intended to make an order
which accorded with the
parties’ understanding of the order that he ultimately made.
This being the case the matter will
have to be approached on the
understanding shared by the parties.
[6] The appellant made an application
for leave to appeal to this Court against the order contained in par
23.2 and 23.3 of Steenkamp
AJ’s judgment. The application for
leave to appeal was apparently made about six weeks out of time. He
made an application
for condonation for non-compliance with the
relevant time limits. The Labour Court dismissed the application for
condonation and,
therefore, effectively refused leave to appeal. The
appellant petitioned the Judge President of this Court for leave to
appeal.
This Court subsequently granted the appellant leave to
appeal to this Court against the judgment and order of the Labour
Court.
Hence, this appeal. Before I can consider the appeal, it is
necessary to set out the facts of this case as they emerge from the
evidence.
The facts
[7
] The
facts in this matter are largely undisputed. The appellant was
employed by the first respondent as a supervisor in 1995. His
terms
and conditions of employment required him to keep certain information
obtained within the first respondent confidential within
the company.
In April 2001 one of the supervisors employed by the first
respondent, namely, Mr SS Mashaba, was dismissed for poor
performance
in that he had allegedly failed to keep certain information updated
which he was required to keep updated. It would
appear that
subsequently a dispute arose between the first respondent and Mr
Mashaba about whether or not Mr Mashaba’s dismissal
was unfair
and that dispute was referred to the CCMA for resolution through
arbitration in terms of the relevant provisions of
the Act.
Apparently, part of Mr Mashaba’s case before the CCMA was that
there were other employees, I think supervisors like
him, who were
guilty of failing to update similar information that they were
required to update just like him against whom the
first respondent
had failed or was failing to take disciplinary action. In other words
Mr Mashaba was alleging a breach of that
rule of fairness that says
like cases should be treated alike. He was accusing the first
respondent of inconsistency in enforcing
the rule that employees in
Mr Mashaba’s position should keep such information updated.
[8
] The
undisputed evidence given by the appellant before his disciplinary
inquiry as well as before the arbitration in the CCMA was
that the
first respondent tendered evidence before the CCMA that was not
balanced or fair towards Mr Mashaba in that it did not
present the
full or correct picture with regard to what was happening in the
company with regard to supervisors updating or not
updating the
relevant information. The appellant’s undisputed evidence was
that he thought that it was very important that
his colleague’s
claim of unfair dismissal be decided fairly by the CCMA with the CCMA
having a balanced picture of the situation
rather than that it make
its decision on the basis of evidence that was not balanced. It was
because of this that he then went
to give evidence before the CCMA in
Mr Mashaba’s case. He brought documentary evidence to the CCMA
– effectively certain
reports. The reports indicated, according
to the appellant, that the relevant supervisors did not keep the
relevant information
up to date as well and that it reflected that
certain employees had been present at work when they were in fact not
present and
that some employees had worked overtime when in fact they
had not worked overtime.
[9
] On
the day(s) when the appellant gave evidence in the Mashaba matter in
the CCMA, there was no company representative in the arbitration.
The
company was represented by its attorneys. Mr Mashaba was represented
by a trade union official, Mr Patrick Mkhize, from a trade
union
called Azanian Workers Union. It was common cause that the records
did not include information about salary rates or wage
rates
applicable to any of the employees of the first respondent.
[10
] The
first respondent learn’t of the fact that the appellant had
given evidence in the Mashaba matter and had divulged the
reports or
records obtained from the first respondent relating to overtime and
attendance of some of the employees. The first respondent
decided to
call the appellant to a disciplinary inquiry in regard to his conduct
in divulging the information which was contained
in the reports he
presented in the arbitration proceedings in the Mashaba matter. The
first respondent alleged that that information
was confidential and
the appellant was obliged to treat it as such and not to divulge it
to any third parties and his conduct in
doing so constituted
misconduct. To this end the first respondent served the appellant
with a notice of allegation of misconduct.
The allegation was that of
“
unauthorised
disclosure of company information
.”
The full allegation was:
“
On or about April 2001 you
disclosed confidential information in violation of company policy and
in particular rule 5.4 of the company’s
corporate governance
and code of best practice and conditions of employment policy.
Documents furnished to the third party:
saco report
info type entry
dot report for F Thomas
dot report for a number of employees”
[11
] This
notification was dated 18 June 2001. It needs to be pointed out that
it was at all times common cause that the first respondent
had in
Mashaba’s case disclosed to the CCMA and to the union
representative information similar to the information that it
objected being disclosed by the appellant to the CCMA. The inquiry
was scheduled for 22 June 2001. Prior to the date of the disciplinary
inquiry, the appellant again attended the arbitration proceedings in
the Mashaba matter in the CCMA and once again divulged similar
or the
same information that he had previously disclosed. As a result of
this the first respondent decided to add a second allegation
to the
original allegation that the appellant was to face in the
disciplinary inquiry. The second allegation was identical to the
first one save that more items were added to the list of information
that the appellant was said to have disclosed. It does not
appear
necessary to list the additional items of information that were
included in the second allegation.
[
12] The
disciplinary inquiry which was scheduled to be held on the 22
nd
June 2001 seems to have been moved to the 24
th
June 2001 to deal with both allegations. In the disciplinary inquiry
the appellant admitted having taken the reports in question
and
having divulged them in the CCMA arbitration. He disputed the
allegation that the information that he had disclosed was
confidential.
It was common cause that he had not obtained the first
respondent’s permission or authorisation to divulge that
information.
At any rate he took the position that he was entitled to
disclose such information in terms of the Protected Disclosure Act 26
of 2000. He made it clear that he believed that he was entitled to
help his colleague in his unfair dismissal case and that he did
what
he did for a good cause. In the course of the disciplinary inquiry
the appellant stated that, if the need arose again, he
would disclose
the information that he had disclosed.
[
13] The
chairman of the disciplinary inquiry concluded, after obtaining legal
advice, that the Protected Disclosures Act did not
apply. He held
that the information was confidential and found the appellant guilty
of the allegations of misconduct. He imposed
the sanction of
dismissal. The appellant thereafter noted an internal appeal against
the decision of the chairman of the disciplinary
inquiry as well as
the imposition of the sanction of dismissal. The internal appeal was
unsuccessful and the finding that he was
guilty and should be
dismissed was confirmed.
[14
] Subsequent
to the internal appeal hearing, the appellant referred to the CCMA an
unfair dismissal dispute initially for conciliation
and later
arbitration. The conciliation process failed. The dispute was then
referred to arbitration. This was the first arbitration.
The
arbitrator was a Mr Mathe who was also a commissioner of the CCMA.
The first arbitration must have been about March 2002. On
18 March
2002 Mr Mathe issued the first arbitration award in the dispute
between the parties. In terms of that arbitration award,
Mr Mathe
found that the appellant’s dismissal was substantively unfair
and ordered that the appellant be reinstated retrospectively
to the
date of his dismissal.
[15] The first respondent was
aggrieved by the first arbitration award and brought a review
application in the Labour Court to have
the award reviewed and set
aside. The appellant opposed that review application. On 15 April
2003 the Labour Court granted the
respondent’s review
application, set aside the arbitration award and remitted the dispute
back to the CCMA to be arbitrated
afresh by a commissioner other than
the one who had arbitrated it previously.
[16
] The
second arbitration was conducted by Mr AC Zwane, the commissioner.
The first respondent led the evidence of two witnesses,
namely, Mr E
Moropodi, who was the appellant’s immediate superior at the
time of the incidents that gave rise to his dismissal
as well as Ms B
Campbell. The appellant testified in his own defence but did not call
any witnesses.
[17
] At
the commencement of the arbitration proceedings the appellant’s
case, as outlined in his representative’s opening
statement,
included disputing that the information that he divulged at the CCMA
was not confidential. In the alternative the union
contended that, if
the information was confidential, the first respondent waived its
right by disclosing similar information to
the CCMA and the union in
the Mashaba matter. It was, once again, common cause that the
appellant had divulged information relating
to attendance and the
working of overtime relating to some of the first respondent’s
employees as well as some e-mail relating
thereto. Again it was
common cause that the information that he disclosed did not include
salary rates for any of the first respondent’s
employees.
[18
] Mr
Moropodi was the first witness to be called by the first respondent
in the arbitration. His evidence did not in any way support
the first
respondent’s case against the appellant. If anything his
evidence largely supported the appellant’s case,
particularly
under cross-examination. A few aspects of his evidence under
cross-examination can be referred to. He agreed that
the first
respondent had taken to the CCMA arbitration in the Mashaba matter
reports similar to the ones that the appellant also
took to the same
proceedings. He conceded that in doing so the first respondent sought
to prove its case against Mashaba. He conceded
that the types of
documents that the appellant took to the Mashaba arbitration were the
right type of documents for the appellant
to take to the CCMA if he
wanted to help Mashaba refute the first respondent’s case
against him.
[1
9]
Mr Moropodi also testified that the documents were confidential
because they related to wages and different rates of pay. Under
cross-examination he conceded that there was no reference to wages
and rates of pay in the documents. With regard to the alleged
confidentiality of the documents, it was put to Mr Moropodi that, if
the documents were confidential, the first respondent would
have
asked the union official representing Mr Mashaba in the latter’s
arbitration to treat them as confidential and the fact
that it did
not ask him to treat them as confidential meant that they were not
confidential. To this Mr Moropodi answered: “
It’s
true
”.
[20
] Mr
Moropodi was then asked whether, if a business person picked up in
the street any of the reports that the appellant disclosed
to the
CCMA, it would mean anything to him and Mr Moropodi replied: “
It
wouldn’t mean much to a business person but to another employee
of the same level it would reflect, it would give a different
reflection or a different meaning which would be Mr X or like Mr
Thomas seemed to be given more overtime than the rest.
”
He was then asked whether that was all that this was about and he
said: “
That’s
right
”.
Ultimately, Mr Moropodi’s evidence was that the issue of
confidentiality related to “
internal
confidentiality
”
by which he meant that one employee in the first respondent should
not see information that would tell him for example how
much overtime
another employee was working.
[21
] Mr
Moropodi was also asked under cross-examination what “
evidence
”
he could give “
to
tell us that these DOT reports (i.e the information disclosed) are
defined or classified as confidential information?
”
His answer was: “
I
don’t have anything
”.
Mr Moropodi was asked whether, if he has been in the appellant’s
position and he wanted to save his colleague from
being dismissed
unfairly, he would not have felt the obligation to disclose the
information. He answered: “
I
would feel that obligation
”.
Under re-examination Mr Moropodi inter alia testified as follows
about the issue of the confidentiality or otherwise of
the
information disclosed by the appellant: “
I
mean, initially, we had regarded DOT reports as confidential
information, and I’ve explained that for internal use, that’s
how we always considered that.
”
Under re-examination he testified that the procedure for the
appellant to follow if he wanted the information was to ask
him as
his supervisor for the information. At this stage it may be important
to point out that under cross-examination Mr Moropodi
said that, if
the appellant had approached him for permission, he would not have
given it if he knew that the appellant wanted
to use that information
against the first respondent.
[22
] Ms
Campbell testified under cross-examination that the first respondent
was justified in disclosing to the CCMA in Mashaba’s
matter
similar information to the information that the appellant disclosed
in the same proceedings. She was then asked whether
she did not think
that the CCMA deserved or was entitled to the truth or to have
“
balanced
”
facts before it could make its decision and she answered that it was
so entitled. She was then asked how the CCMA would
have had the
“
complete
truth
” or
“
balanced
”
facts before it without the appellant disclosing the information to
it. At this stage Ms Campbell said: “
Mr
Khanyile or Mr Mashaba’s representatives could have requested
that information from the company
.”
In the end Ms Campbell’s evidence no longer focussed on the
misconduct being that the appellant disclosed confidential
information and that that was wrong but it focused on saying that the
appellant needed permission from his superiors before he
could
disclose the information that he disclosed. This must have been upon
Ms Campbell’s recognition in the course of cross-examination
that the information was relevant to the issues in the Mashaba
arbitration and was, therefore, legitimately required. That, of
course, could not have come as a surprise because otherwise why would
it have been relevant and legitimate for the first respondent
to use
it at Mr Mashaba’s arbitration but irrelevant and illegitimate
for use by or on behalf of Mr Mashaba? In this regard
it needs to be
pointed out that the first respondent has never taken the attitude
that the information was not relevant to the
arbitration proceedings
relating to Mr Mashaba’s dismissal.
[23
] Going
back to the issue of confidentiality Ms Campbell sought to justify
the assertion that the information was confidential by
stating that
the information about overtime was part of the remuneration and
remuneration was confidential. Under cross-examination
the more she
tried to defend this alleged confidentiality the more unconvincing
the first respondent’s case became. It is
not necessary to go
into details in this regard. Under cross-examination Ms Campbell was
led into disclosing her own information
that would be confidential if
her evidence that the information that the appellant disclosed was to
be taken as confidential. She
was then asked why she had disclosed
her information in the arbitration without the first respondent’s
authorisation. She
said it depended on the purpose for which such
information was asked for. She then changed and said: “
I
made the individual choice there to answer that question that I work
forty hours a week, okay
.”
[2
4] The
union representative then asked her whether there had not been a need
for her to obtain authorisation before she could disclose
such
information. She answered: “
Yes,
there is
.”
She was asked: “
Now
you just made a disclosure without authorisation
?”
She then said: “
Ok
because I made a decision based on the fact that it was a general
question and it could not harm anybody in terms of how many
hours of
work I work
.”
She was then asked: “
Who
did the information that [the appellant] disclosed to the CCMA, not
to Mkhize, who did it harm
?”
Ms Campbell answered: “
It
didn’t actually harm anybody, the point was that Mr …..
Mr Mkhize: Who did it harm
?”
Ms Campbell: “
No,
the point is that he didn’t request authorisation.
”
[25
] Ms
Campbell was also asked under cross-examination why the first
respondent would have given the union representative in the Mashaba
arbitration information similar to the one that the appellant also
disclosed in those proceedings if, indeed, the information similar
to
the one that the appellant also disclosed in those proceedings was
confidential. She replied that the first respondent would
give such
information if the union requested it. She was told that the union
had not requested it but the first respondent gave
it to the union.
She was then asked to justify that and she answered: “
I
don’t know
.”
[26
] The
appellant testified in support of his unfair dismissal claim. He said
that, when he disclosed the information to the CCMA,
he did not
regard it as confidential. He also stated that in the disciplinary
inquiry he disputed that the information was confidential
and his
attitude was also that he was entitled to disclose the information
under the Protected Disclosures Act. He made it clear
in the
arbitration that, if the employer was saying that the information was
confidential, he was prepared to proceed on the assumption
that the
information was confidential but maintaining that at the time of his
disclosing same to the CCMA, he was not aware that
it was
confidential. The first respondent’s attorney in the
arbitration did not challenge this evidence by the appellant.
Accordingly, the matter must be decided on the basis that he accepted
the appellant’s version that the appellant bona fide
believed
at the time that the information was not confidential.
[27
] The
appellant was asked why he had disclosed the information on the
second occasion after he had been served with a notice calling
him to
a disciplinary inquiry to answer for the first occasion when he made
the disclosure. The appellant’s answer was that
he did so
because he believed that the first respondent’s officials were
not aware of the true nature of the information
he had disclosed or
was disclosing at the CCMA because, if they were, they would have
been aware that he was disclosing to the
CCMA information that was
similar to the information that the first respondent had itself
disclosed to the CCMA. He said that he
thought that the reason for
this lack of information on the part of the first respondent was due
to the fact that none of its officials
were at the Mashaba
arbitration and the first respondent was represented by attorneys
only. Once again this explanation by the
appellant was not challenged
under cross-examination and the matter has to be decided on the basis
of an acceptance of this explanation.
[28
] The
appellant was also cross-examined on the statement that he made in
the disciplinary inquiry that, if the need arose again
in the future,
he would disclose the same information to the CCMA again. His answer
to this was that that was his attitude in the
disciplinary inquiry
because at that time he believed that the Protected Disclosure Act
entitled him to make such disclosures and
that he was protected. He
said also that at that time he was maintaining that the information
was not confidential and that there
was nothing wrong with what he
had done. He said that when asked at the disciplinary inquiry
whether he could do the same again,
he had to answer in the way he
did because at that time he truly believed that he was right. The
appellant said that in the arbitration
his attitude was different. He
said that his attitude at the arbitration was that, if the employer
said that the information was
confidential, he was prepared to assume
that it was confidential and would not repeat the same conduct.
[29
] Although
the appellant confirmed in his evidence in chief - that he was
seeking reinstatement and payment of full-back-pay, under
cross-examination it was never put to him that circumstances existed
which would make a continued employment relationship intolerable
or
which would make reinstatement impracticable. If that had been done,
it would have given him an opportunity to deal with such
factors.
[30
] The
commissioner came to the conclusion that the dismissal was
substantively unfair and made the award referred to earlier. In
the
subsequent review application that the Labour Court dealt with, the
Labour Court confirmed the finding of the commissioner
that the
dismissal was substantively unfair. As I said earlier, the Labour
Court took the view that the commissioner ought not
to have ordered
reinstatement. The only reason advanced by Steenkamp AJ for his
conclusion that the commissioner should not have
ordered
reinstatement was that the appellant had said in the disciplinary
enquiry that, if similar circumstances arose again in
the future, he
would repeat his conduct complained of. Steenkamp AJ said in par 20
of his judgment that this “
points
to a breakdown in the trust relationship between [the appellant] and
the [first respondent]. This is all the more so where
he was employed
in a relationship of trust as a supervisor
.”
[31
] The
Labour Court misdirected itself in this regard. That does not mean
that statements made in a preceding disciplinary inquiry
can never be
taken into account. However, it must be borne in mind that the
arbitration is a hearing
de
novo
. Secondly, the
Labour Court completely ignored the explanation that the appellant
gave in the arbitration for the statement he
made in the disciplinary
inquiry. That explanation was not challenged under cross-examination.
Accordingly, the conclusion of the
Labour Court in this regard was
completely unjustified. With regard to the trust relationship, the
Labour Court failed to have
regard to the positive and co-operative
attitude displayed by the appellant in the witness stand before the
arbitrator. In this
regard I am referring to his stance that, if his
employer regarded the information as confidential, he would take it
as confidential
and that he would not in the future repeat his
conduct.
[3
2] I
see from par. 22 of its judgment that the purpose of the Labour Court
referring to the “
long
history
” of
the matter was not to justify denying the appellant reinstatement but
to justify its decision to determine the dispute
itself rather than
remitting it to the CCMA. I have no difficulty with that but,
obviously, that would not arise if the award was
not reviewed.
Counsel for the first respondent had also relied on the aforesaid
statement made by the appellant in the disciplinary
inquiry to
support the order of the Labour Court. The submission is totally
without merit.
[33
] There
was also a submission made by Counsel for the first respondent that
the Labour Court’s decision to deny reinstatement
to the
appellant was justified because there were certain changes that had
taken place in the company. Ms Campbell testified about
that. She
said employees or supervisors had had to undergo some training as a
result of those changes. She testified that such
training lasted one
day or even less for some of the supervisors. Obviously that can
simply be no impediment to the granting of
a reinstatement order. The
appellant can be put through such training and resume his work.
[34
] In
the end the Labour Court, in deciding to interfere with the order of
reinstatement made by the commissioner, did not deal with
the matter
as a review. It dealt with it as if it was an appeal. In this regard
I draw special attention to the fact that, when
the Labour Court was
dealing with the issue of reinstatement, it did not ask the question
whether the commissioner’s decision
to order reinstatement fill
within any one of the grounds of review. It ought to have done so. In
not doing, so it erred. As I
have said, it dealt with the issue as if
the question was whether the commissioner’s decision was right
or wrong. In the
light of the evidence that was before the
commissioner and the fact that, in the absence of the exceptions
provided for in sec
193(2)(a) – (d) of the Act, reinstatement
is compulsory, there can be no doubt that the commissioner was
correct in ordering
reinstatement. This being the case, the
commissioner’s award must be restored. Subsequently the
appellant petitioned the
Judge President of this Court for leave to
appeal which petition was granted.
[35
] It
was not argued on behalf of the respondent that, by reason of the
delay that had occurred prior to the issuing of the second
arbitration award, the commissioner should not have ordered
reinstatement nor was it argued that the appellant was in any way to
blame for such delay. None of this could have been argued by the
respondent because there is no suggestion that the appellant in
any
way acted less than diligently in prosecuting his matter. Indeed, the
main delay had been caused by the fact that the respondent
brought a
review application in the Labour Court after the first arbitration
award in the appellant’s favour had been issued.
After the
second arbitration award a further delay was caused by the fact that
the respondent brought another review application
before the Labour
Court. I am not criticising the respondent for exercising its right
to bring those review applications but I
am merely stating the fact
that the mere bringing of those review applications caused certain
delays. It is, of course, an undeniable
truth that most employers who
have arbitration awards issued against them do not take each and
every one of those on review. If
the majority of employers did that,
out entire labour dispute resolution system would grind to a halt.
[36
] With
regard to costs I am of the view that the requirements of the law and
fairness dictate that the first respondent pay the
appellant’s
costs.
[37
] In
the premises I make the following order:
The appeal is upheld.
The first respondent is ordered to pay the appellant’s
costs on appeal
The order of the Labour Court is set aside and replaced
with the following order:
“
(a)
The
application for review is dismissed with costs
.”
Zondo JP
I agree.
Khampepe ADJP
I agree.
Leeuw JA
Appearances
For the Appellant: Mr Z.E.
Buthelezi
Instructed by: Buthelezi Attorneys
For the Respondent: Mr C.F. Watt-Pringle SC
Instructed by: Deneys Reitz Inc
Date of Judgment: 24 February 2009