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[2007] ZALCCT 10
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National Union of Mine Workers and Another v Commission for Conciliation Mediation And Arbitration and Others (C372/06) [2007] ZALCCT 10 (28 November 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE
NO.: C372/06
In
the matter between :
THE
NATIONAL UNION OF MINE
WORKERS
First Applicant
JANTJIE
DITSIETSI
RAMAISA
Second Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION,
AND
ARBITRATION
First Respondent
COMMISSIONER
SHIRAZ MAHOMED OSMAN N.O.
Second Respondent
CHRISTIAAN
FREDERICK
POTGIETER
t/a
SONOP
DELWERY
Third Respondent
JUDGMENT
DELIVERED ON 28 NOVEMBER 2007
[1] This is an
application in terms of section 158(1)(c) of the Labour Relations Act
No. 66 of 1995 (“the LRA”) to make
the award issued by
Second Respondent on 2 February 2005 an order of Court.
Third Respondent is opposing the application
on the basis that the
proceedings should be stayed pending finalisation of the application
instituted by Third Respondent to have
the relevant award of Second
Respondent reviewed and set aside.
[2] The background to the
matter briefly is that Second Applicant was in the employ of Third
Respondent. Disciplinary
proceedings were brought against
Second Applicant on two counts of absenteeism without official leave
on 22 July 2004 and 12 September
2004 resulting in his
dismissal. The dismissal eventually led to the
arbitration proceedings before Second Respondent
on 1 February
2005. The arbitration was conducted in the absence of
Third Respondent who failed to attend the proceedings.
[3] Second Applicant
testified at the arbitration that on 22 July 2004 the work bus left
nine employees including himself behind.
He was
consequently unable to report for duty. On 12 September
2004 he was arrested as a suspect in a criminal charge
in
Delportshoop. He was subsequently released after the
police had apprehended the real perpetrator. When
he
arrived at work he informed the foreman of the incident and was told
to return to his post. The remaining employees who
were absent
with him on 22 July 2004 were given warnings, while Second Applicant
had to attend a disciplinary hearing which resulted
in his eventual
dismissal.
[4] In view of the
uncontraverted evidence of Second Applicant, Second Respondent found
that Second Applicant’s dismissal
was procedurally and
substantively unfair and ordered his reinstatement with retrospective
effect.
[5] Third Respondent
became aware of the arbitration award when it came to his attention
on 2 February 2005. Third Respondent
thereupon launched a
rescission application on 5 February 2005. This
application was heard on 15 April 2005 by Second
Respondent who
dismissed the application on 26 April 2005 on the basis that Third
Respondent was given proper notice of the arbitration
hearing.
Third Respondent was dissatisfied with the award and proceeded to
investigate the matter further.
This resulted in the
discovery that the notice of set down in respect of the arbitration
hearing was forwarded to an incorrect
address, which explains why the
notice never came to Third Respondent’s attention.
Third Respondent thereupon
sought the assistance of the Senior
Convening Commissioner of First Respondent in Kimberley who advised
that the matter should
be referred back to Second Respondent.
Third Respondent then launched a second rescission application on 10
May 2005
which was heard by Second Respondent on 30 June 2005.
Second Respondent made a ruling on 13 July 2005 rescinding the
arbitration award.
[6] First Applicant
successfully challenged the second rescission ruling in this Court.
The matter was concluded on
26 April 2006 when the Court reviewed and
set aside the rescission ruling of Second Respondent.
Third Respondent then
launched an application to review Second
Respondent’s original award on 19 June 2006. That
application is presently
still pending.
[7] Ordinarily an
application in terms of section 158(1)(c) of the LRA will not be
finalised prior to the decision in a pending
review application to
have the relevant arbitration award reviewed and set aside. It
was, however, argued on behalf of Applicants
that the review had been
perempted. This argument is based on the submission that
by electing the remedy of an application
for rescission instead of
review proceedings (which are two mutually exclusive remedies) Third
Respondent perempted the review.
It was submitted that
Third Respondent should be barred from pursuing the review on the
basis of acquiescence and election to pursue
the contradictory remedy
of rescission.
[8] In my view, there is
no merit in the contention that Third Respondent had perempted the
review. It is readily apparent
that Third Respondent had
taken immediate steps to pursue the possible remedies open to it as
soon as the default award came to
Third Respondent’s attention.
[9] Applicants
furthermore submitted that there was an unreasonable time lapse prior
to the launching of the review application
and that Third Respondent
failed to apply for condonation. As pointed out above,
Third Respondent had acted with due
despatch in the circumstances and
has not unreasonably delayed in bringing the review application.
The issue of condonation
as well as Applicants’ further
submission that the review was brought under the wrong section of the
LRA are matters which
need not be decided for present purposes.
In any event these issues are not determinative insofar as the
present application
in terms of section 158(1)(c) is concerned.
[10] None of the other
issues raised by the Applicants such as non-citation, defective
service, the prospects of success and that
the award had acquired
factual validity likewise justifies, in my view, the granting of the
present application notwithstanding
the pending review application.
[11] It follows that the
present application should be stayed pending finalisation of the
review application instituted by Third
Respondent.
[12] I have raised the
prospects of directing that the review application be expedited with
the legal representatives of both Applicants
and Third Respondent.
Third Respondent was agreeable to an abridged and expedited timetable
for hearing the review
application in order to resolve the issue
between the parties which had been outstanding for a very
considerable period of time.
Applicants’ legal
representative, however, indicated that it would be undesirable
to pursue the matter.
In the result this issue was not
pursued any further.
[13] In the
circumstances, I make the following order :
(a)
The application in terms of
section 158(1)(c)
of the
Labour Relations
Act 66 of 1995
is stayed pending the determination of the review
application instituted by Third Respondent under case number C262/06;
(b)
Costs stand over for later determination.
______________________________
DENZIL
POTGIETER, A.J.
For the Applicants: Mr
Neville Cloete of Neville Cloete Attorneys.
For the Respondent: