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[2008] ZALCJHB 33
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Hedred Fruehauf Trailers (Pty) Ltd v Doman NO and Others (JR892/07) [2008] ZALCJHB 33 (7 November 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO: JR892/07
REPORTABLE
In
the matter between:
HENDRED
FRUEHAUF TRAILERS (PTY) LTD
Applicant
and
B
DOMAN
NO
First R
espondent
K
G MNGEZANA
NO
Second Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Third Respondent
NUMSA
obo MIYA
Fourth Respondent
JUDGMENT
MOSHOANA,
AJ
INTRODUCTION
[1]
On 07 November 2008, I issued an order in the following terms:-
1.
The Review Application is dismissed with costs;
2.
The application in terms of Section 158(1)(c) is hereby granted.
[2]
What follows hereunder are the reasons for such an order.
[3]
As a point of departure I need to mention that the Applicant was
seeking to review two decisions. The
first was by the First
Respondent and the second was by the Second Respondent. The Second
Respondent issued a condonation ruling
and subsequently the First
Respondent issued an award in favour of the Fourth Respondent.
BACKGROUND
FACTS
[4]
On or about 01 May 2002, the Applicant effected retrenchment and a
number of employees including the
individual Fourth Respondent, one
Miya, were dismissed. The fairness of the dismissal was not
challenged. The retrenched employees
were paid severance pay in
accordance with the relevant provisions of the Bargaining Council and
not in terms of the Collective
Agreement between NUMSA and the
Applicant. As a result of that a dispute in relation to the severance
pay arose, the contention
being that the severance pay was not paid
in accordance with the Collective agreement. That dispute was
referred to private arbitration
in terms of Clause 7 of the
Collective Agreement. At the arbitration proceedings, the parties
arrived at an agreed statement of
facts. A list of employees was
prepared and agreed to be employees who would benefit out of the
award, if a favourable one is issued.
It is worth mentioning at this
stage that the individual Fourth Respondent, Mr Miya was not in that
list of the employees who would
benefit out of a favourable award. At
the conclusion of a private arbitration, the arbitrator issued an
award in favour of the
listed members of the Fourth Respondent,
NUMSA. The effect of the award was that the Applicant should pay the
individual members
severance pay in terms of the Collective
Agreement. As pointed out, the individual Fourth Respondent, Mr Miya
was not included
in the list. As a result an application was brought
in terms of section 158 to make the award an order of court .
[5]
On or about 13 October 2003 the Fourth Respondent’s union,
NUMSA, brought an application in terms
of section 158(1) to this
Court, under Case Number J583/03, in which it sought to have the
individual member, Mr Miya, included
in the award. The application
was opposed and subsequently withdrawn by NUMSA. On 12 November 2003,
the Fourth Respondent union
wrote a letter to the Applicant
requesting that the matter in relation to the payment of the
severance pay of Mr Miya be referred
to private arbitration. The
Applicant refused to agree to this. In its view, the matter had
already become dealt with by private
arbitration and has since become
res judicata.
[6]
On 03 December 2003, NUMSA referred a dispute concerning the
interpretation and application of a Collective
Agreement to the Third
Respondent. The dispute was referred to arbitration, at which point
the Applicant raised its objections.
Commissioner P Stone heard the
matter and came to the conclusion that there was a delay in the
referral and that a proper application
for condonation be made in
terms of the CCMA rules. On 05 October 2005, the Fourth Respondent
brought an application for condonation
of late referral of the
dispute. This application was also opposed by the Applicant. The
condonation hearing was set down on 26
September 2006, before the
Second Respondent. The Second Respondent heard argument from both
sides and issued a ruling to the effect
that condonation has been
granted and the matter should proceed to arbitration. On 13 February
2007, the matter was enrolled for
arbitration. At the end, the First
Respondent issued an award dismissing all the objections and ordered
the Applicant to pay the
severance pay as stipulated in clause 1 of
the Collective Agreement, entered into on 22 August 1990, within ten
(10) of receipt
of the award. The Applicant was aggrieved by the
award and brought an application in terms of Section 145 of the
Labour Relations
Act. In the selfsame application, the Applicant
sought to review and set aside the ruling issued by the Second
Respondent (condonation
ruling). As it would be apparent, the ruling
by the Second Respondent was issued long after the six week period to
launch a Review
Application. Without seeking condonation in the
Notice of Motion, the deponent to the Founding Affidavit stated the
following:-
“
1.
As stated above the award of the Second Respondent was handed down on
25 October 2006 in terms of which
condonation was granted to the
Fourth Respondent;
2.
The application is now brought some five (5)
months later;
3.
It is however clear from what is set
out above, that the Applicant has raised three objections in limine
from the outset. The CCMA
chose to determine these objections in a
piecemeal fashion, by firstly determining the condonation issue and
then the other two
objections in limine.
4.
The final determination of the
objections in limine took place by way of the award of the First
Respondent which was served on the
Applicant on 09 March 2007;
5.
It was entirely rational and
justified for the Applicant to have first waited for the
determination of all of its objection in limine
before approaching
the above Honourable Court for relief. This is a responsible and
proper cause of action and in fact has support
in law. Legal argument
in this regard will be submitted to the above Honourable Court at the
hearing of this matter.
6.
Also, the facts of all three
objections in limine as is clear from what is set out above are so
interwoven and commonly bound, that
it is simply inappropriate to
determine the matter piecemeal. The CCMA in fact made this
error.
7.
In so far as it therefore is
required and on the above grounds, it is prayed by the Applicant that
condonation should be granted
for any late filing of this application
in respect of the Second Respondent’s award.
THE
GROUNDS OF REVIEW
[7]
The Applicant sought to raise as a ground of review, the fact that
the Third Respondent lacked jurisdiction
to entertain the dispute, on
the basis that the matter has become
res
judicata
, and that there was a pending
litigation. The Applicant further contended that since there was an
agreement to have a dispute dealt
with by way of a private
arbitration, the CCMA had no jurisdiction.
ARGUMENT
[8]
In court, Groenewald appearing for the Applicant persisted that the
CCMA did not have jurisdiction on
the basis that the matter has
become
res judicata
and there was a
lis pendes
.
During the course of her submission, the Court drew her attention to
the fact that the ruling by the Second Respondent was made
outside
the six weeks period and there was a need for a condonation
application. On that score, she sought to seek a postponement
of the
matter in order for an application for condonation to be brought. In
reply, after the Fourth Respondents’ representative
Mr Ngako
pointed out to the court an attempt to seek condonation, she conceded
that, that which was purported to be an application
for condonation
does not set out an explanation why there was a five months delay. At
best, she submitted that because the Applicant
did not wish to take a
piecemeal approach it waited for an award to be issued before
approaching the court for review. On the other
hand she conceded that
from the papers it was clear that Mr Miya intended to be a party to
the private arbitration but did not
become a party to the private
arbitration. She also conceded that the issue of
lis
pendens
was not raised at the
arbitration proceedings, however she contended that it is well within
the entitlement of the Applicant to
raise such a point at the Labour
Court.
[9]
On the other hand Mr Ngako submitted that the principle of
res
judicata
did not find application, in
that Mr Miya was not a party to the private arbitration. He further
argued that the issue of
lis pendes
was indeed not raised but
lis pendes
would mean same dispute before different forums. He submitted that
what was sought in the Labour Court was different from what
was
sought at the CCMA. In the first instance at the CCMA, the Fourth
Respondent was seeking interpretation and application of
a Collective
Agreement whereas in the Labour Court it was seeking a declaratory to
the effect that Mr Miya is to be joined in the
award issued by the
private arbitrator.
ANALYSIS
[10]
The first issue to be decided is the condonation for late filing of
the Review Application in respect of the ruling
by the Second
Respondent. It is clear that the Applicant brought the Review
Application outside the six weeks period. The Applicant
only states
that there was a delay of five months. Other than setting out the
view it holds, being that it did not want to approach
the matter in
piecemeal, it offers no explanation why there was a delay of five
months. In any application for condonation, an
Applicant must provide
a reasonable explanation for the delay. In my view, it is not a
reasonable explanation to state a view held
by a litigant. It does
appear that the Applicant took a gamble that if it had succeeded in
raising its objections at the arbitration
proceedings, it would not
have brought the application for review of the ruling granting
condonation. Surely if the granting of
the condonation was something
that was done irregularly, the Applicant should have brought an
application for review at the time
when it held a view that same was
granted irregularly.
[11]
Other than the fact there was no explanation at all, I hold a view
that the Applicant had no prospects of success
in having the
condonation ruling reviewed and set aside. For practical reasons,
even if I were to review and set aside the condonation
ruling, what
then follows is whether the subsequent award by the First Respondent
is a reviewable award? If I find, which I did,
that the First
Respondent’s award is not reviewable, then it would have been
purely academic to order that the ruling is
reviewed and set aside.
An argument may be raised that if condonation is set aside, it
follows as a matter of course that the First
Respondent would not
have had jurisdiction to arbitrate. The difficulty with that argument
is that it is in its nature belated,
in that the First Respondent
acquired jurisdiction to arbitrate because there was a condonation
for the late referral. It does
not accord to a litigant to approach
matters in the manner in which the Applicant did. It was in my view
unwise not to challenge
the ruling for granting of condonation. The
nett effect of such a challenge would have been that the arbitration
probably might
have been stayed pending the outcome of the decision
of the court on the reviewability of the condonation ruling. In which
event,
if the court found the condonation ruling reviewable, it then
becomes appropriate to argue that since condonation has not been
granted, the CCMA lacked jurisdiction to arbitrate. However this
matter stood at a different level, in that Commissioner Stone was
the
one who directed the parties to bring a condonation application. His
ruling was not challenged but was abided by the Fourth
Respondent. In
terms of Section 24, there is no provision made in respect of the
time period within which the referral of such
disputes should be
made. It then follows that if there are no prescribed time periods
there is no need for condonation. Referrals
to the CCMA are not like
reviews in terms of which it could be said that once a reasonable
time has elapsed without bringing the
application, such could be the
basis to refuse to entertain the application, particularly where
there is no condonation application.
It does appear that Commissioner
Stone approached this matter on those basis. Having said that, the
effect of the ruling by the
Second Respondent is that he condoned
something that is not to be condoned as it were.
[12]
In the matter of
Premier of Gauteng and Another v Ramabulana NO
and Others
(2008) 4 BLLR 299
(LAC)
, at page 307 para 25 C-E, the
Labour Appeal Court per Zondo JP had the following to say:-
“
In
other words, the granting of the condonation application did not give
the employee party a right that it did not already have,
nor did it
take away from the employer party a right which it had acquired
before such order was made. That being the case, the
employer party
should not have brought a review application to set aside the
decision condoning the so-called “late referral”.
Even if
the order condoning the “late referral” were granted, as
it was, and that order was set aside, in law that
would not have
prevented the employee party from making the request for arbitration
and having the dispute arbitrated. For this
reason the bringing of
the review application by the employer party was moot and an exercise
in futility that would not have brought
the employer party any
practical benefit. For that reason, it should not have been brought.
It could, and, should, have been dismissed
by the Labour Court on
that ground alone.”
[13]
I am in full agreement with the sentiments expressed above. In my
view the sentiments also find application in
this instance, in that
the bringing of the condonation application was something that the
Applicant ought not to have done in the
first instance and the
refusal of condonation would not have prevented the Fourth Respondent
to have the matter arbitrated. At
best, what the Fourth Respondent
did was to comply with a ruling made by Commissioner P Stone which
although not set aside appears
to be a nullity, in that Commissioner
Stone had no powers to order condonation. It therefore follows that
the review application
ought not to have been brought. As the Labour
Appeal Court has pointed out, it ought to be dismissed on this ground
alone. In my
view, this goes to the prospects of success, I find that
there was no basis to entertain the review of the ruling by the
Second
Respondent.
[14]
Insofar as the award by the First Respondents is concerned, the
Applicant seems to be raising the issue of jurisdiction
on the basis
that there was
res judicata,
lis pendes
and that the matter should have been referred to private arbitration.
The Applicant raises no basis that this is an award that
a reasonable
commissioner would not have made, even if he had jurisdiction.
DID
CCMA LACK JURISDICTION?
[15]
Starting with the point of
res judicata,
it is clear that that point is defeated by the fact that Miya was not
a party to the arbitration proceedings accordingly he was
not
prevented to have his own dispute considered by a forum. In
South
African National Defence Union and Another v Minister of Defence and
Others 2003 24 ILJ 2101(T)
, it was held
that the requisites for a valid defence of
res
judicata
are that the matter
adjudicated upon must have been for the same cause, between the same
parties and the same thing must have been
demanded.
[16]
In
Fidelity Guard Holdings (Pty) Ltd v Professional Transport
Workers Union and Others 1999 20 ILJ 82 (LAC)
, the Court with
reference to the rule as set out by Voet quoted paragraph 44.2.3,
where it stated that the exception is allowed
where
the concluded litigation is again commenced between the same parties
in regard to the same thing, and for the same cause of
action, so
much so that if one of those requisites is wanting, the exception
fails.
[17]
Further in explaining the rule and with reference to various
authorities, the court stated that the reason for
the rule is to
prevent difficulties arising from mutually contradictory decisions
due to same action being heard more than once
in different judicial
proceedings.
[18]
As I have already stated, it is common cause that Mr Miya was not
party to the private arbitration, accordingly
there is no basis upon
which this defence would have succeeded because one of the element
would be lacking.
[19]
Secondly, the issue of
lis pendes,
is almost the same as
res judicata,
however
lis
pendes
relates to the principle that
one could not have the same cause of action been considered by
different forums. The first difficulty
with this is that it was never
raised at the arbitration proceedings. Accordingly it is not a fact
on which the First Respondent
rejected to found jurisdiction. The
argument that the defence of
lis pendes
can still be raised in this Court is without merit. In the first
instance, I agree with Mr Ngako that the matter that was pending
at
the Labour Court was for a different cause of action albeit involving
the same parties. The second difficulty I have with that
argument is
that as at the time when the dispute was being arbitrated upon by the
First Respondent, the litigation in the Labour
Court was no longer
pending as it was withdrawn. Therefore factually there was no pending
litigation. That in my view, could be
the reason why the defence of
lis pendes
was not raised at the arbitration proceedings. Accordingly I find no
basis upon which the jurisdiction of the CCMA was affected
thereby.
[20]
Thirdly, insofar as the issue of the private arbitration is
concerned, it is common cause that when the Fourth
Respondent sought
to request arbitration by a private arbitrator, the Applicant
refused. Since private arbitration is consensual,
if one of the
parties does not accept to have private arbitration, there will be no
private arbitration. On the other hand the
jurisdiction of the CCMA
is such that there is compulsory arbitration if the matter falls
within its powers. In terms of Section
147 of the Labour Relations
Act, the following obtains:-
“
If
at any stage after a dispute has been referred to the commission, it
becomes apparent that dispute is about the interpretation
or
application of a Collective Agreement, the commission may:-
i)
Refer the dispute for resolution in
terms of the procedures provided for in that Collective Agreement; or
ii)
Appoint a Commisssioner or, if one
has been appointed confirm the appointment of the commissioner to
resolve the dispute in terms
of this Act.”
[21]
It follows that the CCMA is not divested of its jurisdiction simply
because the Collective Agreement provides private
arbitration
procedures, particularly in respect of disputes relating to
interpretation and application of a Collective Agreement.
The Section
provides that the commission may charge a party to a Collective
Agreement a fee if that party has frustrated the resolution
of the
dispute.
[22]
It is so in this matter that the Applicant was asked to have the
dispute resolved by way of private arbitration,
but it refused. It
therefore follows that it frustrated the process itself
and at best the commission could have charged
it a fee but that does
not divest the commission of its jurisdiction to deal with the
matter.
[23]
As to whether there was any basis upon which this award could be
interfered with on the basis of it being not reasonable,
I wish to
refer to
Phalaborwa Mining Company Ltd v Cheetam and Others
[2007] ZALAC 11
;
2008 6
BLLR 553
(LAC)
where Patel JA in a separate but concurring
judgement stated the following:-
“
Sidumo
enjoins the court to remind itself that the task to determine the
fairness or otherwise of a dismissal falls primarily within
the
domain of the commissioner. This was a legislative intent and as much
as decisions of different commissioners may lead to different
results, it is unfortunately a situation which has to be endured with
fortitude despite the uncertainty it may create. I have to
remind
myself that the test ultimately, is whether the decision reached by
the Third Respondent is one that a reasonable decision
maker could
reach at all the circumstances. On this test I cannot gainsay that
decision of the Third Respondent. I therefore concur
with the
conclusion and order by Willis JA”.
[24]
I can say no more with regard to the decision arrived at by the First
Respondent. The First Respondent considered
the objections
raised and came to the conclusion that the objections did not divest
him of jurisdiction. In the circumstances that
would not necessarily
make his ruling one which a reasonable commissioner could not reach.
THE
ISSUE OF MAKING AN ARBITRATION AWARD AN ORDER
[25]
The Fourth Respondent brought a counter application which largely
depended on the ruling that the Review application
is dismissed.
There existed no reason why such an application should not be granted
in terms of Section 158(1)(c).
CONCLUSION
[26]
It was for the reasons set out above that I came to the conclusion
that the review applications should be dismissed
and the arbitration
award be made an order of court.
_____________________________
G.
N MOSHOANA
Acting
Judge of the Labour Court
Date
of Hearing: 07 November 2008
Date
of Judgment: 07 November 2008
Date
of Editing: 05 December 2008
APPEARANCES
For
the Applicant: A Groenewald from Snyman Attorneys
For
the Respondent: X Ngako from Ruth Edmonds Attorneys