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[2003] ZALCJHB 18
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Van Aswegen v Commission for Conciliation Mediation And Arbitration and Others (JR249/02) [2003] ZALCJHB 18 (27 May 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT
JOHANNESBURG)
CASE NO: JR249/02
In
the matter between:
VAN ASWEGEN,
DARRYN Applicant
and
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First Respondent
ZWANE,
BUTI
NO Second
Respondent
TELEMESSAGE
(PTY)
LIMITED Third
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application to review, correct and/or set aside the
compensation order in an arbitration award dated 21 January 2002
issued by the second respondent (“the commissioner”), who
sat as the commissioner in arbitration proceedings initiated
by the
applicant under the auspices of the first respondent, under case
number GA127301.
2.
The applicant is also seeking condonation for the late filing of his
answering affidavit. Good cause has been shown for
the late
filing of the answering affidavit.
3.
The review application was opposed by the third respondent. The
third respondent was in default today when the application
was argued
before me.
Background
facts
4.
The applicant was employed by the respondent on 29 June 1999 as a
sales executive.
5.
On 25 January 2001, pursuant to a disciplinary enquiry into the
alleged mal performance, the third respondent dismissed the
applicant. The applicant appealed. On appeal the
dismissal was upheld by the third respondent on 8 February 2001.
6.
The applicant referred the matter to the first respondent for
conciliation, and subsequently arbitration. The commissioner
presided at the arbitration hearing.
7.
The arbitration commenced on 25 July 2001 when the third respondent
presented its case whereafter the arbitration was postponed
sine
die
and was resumed on 8 January 2002. On 8 January 2002
the applicant presented his evidence and the parties delivered
argument.
The
arbitration award
8.
On 22 January 2002 the commissioner delivered his award. He
found that the dismissal was both substantively and procedurally
unfair.
9.
Pursuant thereto the commissioner directed that the third respondent
pay the applicant six month’s salary which he determined
to be
an amount of R69 568,50 at the rate of remuneration of the applicant
at the time of dismissal.
10.
The reason that the commissioner gave for limiting the compensation
to six months was that neither of the parties was responsible
for the
delay from 25 July 2001 to 8 January 2002 when the arbitration was
finalised but for the award.
11.
It is against the findings referred to in paragraphs eight and nine
supra
that the applicant has brought the review application.
The
grounds of review
12.
The applicant contends that the commissioner misdirected and/or
misconducted himself and/or committed a gross irregularity in
awarding an amount of six months compensation to him, in
circumstances where the commissioner had found, correctly, that
neither
the applicant nor the third respondent was at fault for any
delay in the timeous completion of the arbitration under review.
13.
The misdirection/misconduct/gross irregularity occurred in that the
commissioner misdirected himself in applying section 194(2)
of the
Labour Relations Act 66 of 1995 (“the Act”). The
commissioner ought to have directed that the applicant
was to be
awarded an amount of compensation equal to the remuneration which he
would have received from the time of the termination
of his services
being 25 January 2001 to the last date on which the arbitration was
held being 8 January 2002 which is a period
of 11 months and 14
days. The commissioner, so it was contended, did not apply his
mind to the aspect of compensation.
Analysis
of the facts and arguments raised
14.
I am of the view that the award of six months is not at all
justifiable on the reasons given therefor. The fact that
neither party was responsible for the delay does not excuse the third
respondent from payment of the compensation he is by law obliged
to
pay and which the commissioner was by law obliged to award, nor may
the applicant be denied his lawful compensation for the
said
reasons.
15.
The commissioner was obliged at the time he delivered his award to
grant the applicant the full compensation but for a discretion
to
award zero remuneration. Having decided to award some
compensation in view of the commissioner’s finding that there
had been both substantive and procedural unfairness, he was obliged
to award the full measure thereof, subject to a limit of twelve
months remuneration. The twelve-month rule prevails in
circumstances where the date between the commencement and conclusion
of the arbitration exceeds a twelve-month period. In
circumstances where the time period between commencement and
conclusion
of the arbitration occurs within a twelve-month period
then the maximum measure of compensation would be the elapse time
period
which in the present case is eleven months and fourteen days.
The commissioner was obliged to award remuneration equivalent
to that
period.
16.
No purpose will be served by referring the matter back to the
commissioner or any other commissioner. The third respondent
has conceded on the papers in this review application that the
applicant’s monthly remuneration was R9 640,00. The
applicant accepted that amount as his monthly remuneration. It
is further common cause that the time period from the commencement
of
the arbitration to the last day of the hearing was eleven months and
fourteen days.
17.
The applicant is entitled to payment from the third respondent of
R110 476,55 being the remuneration for the period of eleven
and
fourteen days.
18.
There is no reason why costs should not follow the result.
19.
In the circumstances the following order is made:
1.
The compensation order in the arbitration award dated 21 January 2002
under case number GA127301
issued by the commissioner sitting as an
arbitrator of the first respondent is reviewed and corrected.
2.
The third respondent is directed to pay the applicant the sum of R110
476,55 being the equivalent
of eleven months and fourteen days
remuneration.
3.
Condonation for the late filing of the replying affidavit is granted
4.
The third respondent to pay the costs of the application.
___________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE
APPLICANT
: T C
TIEDEMANN INSTRUCTED BY PETERSEN HERTOG & ASSOCIATES
FOR THE THIRD
RESPONDENT
:
NO
APPEARANCE
DATE
OF HEARING
: 27 MAY
2003
DATE
OF JUDGMENT
: 27 MAY
2003