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[2009] ZALCJHB 74
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Howell v Autohaus Gobel Northcliff (Pty) Plt t/a Peuget Northcliff (J578/08) [2009] ZALCJHB 74 (6 November 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT
REPORTABLE
CASE
NO: J578/08
In
the matter between:
JONATHAN
HOWELL
APPLICANT
and
AUTOHAUS
GOBEL NORTHCLIFF
(PTY)
PLT
t/a
PEUGET
NORTHCLIFF RESPONDENT
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant in this matter seeks an order
to have the arbitration award issued under the auspices of Dispute
Resolution Centre
for the Motor Industry Bargaining Council on the
12
th
March 2008, case number MINT9067S made an order of the Court in terms
of
section 158(1)
(c) of the
Labour Relations Act 66 1995
.
[2]
The brief background of this matter is that
the applicant was employed as the after sales manager was dismissed
by the respondent
on the 5
th
February 2007. Subsequent to his dismissal the applicant referred an
unfair dismissal dispute to the Motor Industry Bargaining
Council
which subsequent to failure of conciliation arbitrated the dispute
between the parties.
[3]
The outcome of the arbitration proceedings
was that the arbitrator issued an award in favour of the applicant,
finding that the
dismissal was substantively unfair. It was for this
reason that the arbitrator ordered the respondent to pay the
applicant compensation
in the amount R252 000, 00. The arbitration
award was faxed by the bargaining council to the respondent on 14
th
March 2009. A copy of the arbitration was again faxed to the
respondent’s attorneys of record on 17
th
March 2009.
[4]
The respondent having not complied with the
terms of the arbitration award the applicant filed this application
on the 4
th
April 2008. The respondent then filed an application to have the
arbitration award reviewed on 22
nd
April 2008 under case number JR610/0.
[5]
The applicant filed his application to have
the arbitration award made an order of Court in terms of
section
158(1)(c)
of the Labour Relations Act on 10 April 2008. In that
application the applicant called on the respondent, if it intended to
oppose
the application to file an answering affidavit within 10 Court
days.
[6]
On 6
th
June the respondent having failed to file its answering affidavit
within 10 days, the applicant’s attorneys wrote a letter
to the
respondent’s attorneys indicating that they would seek to have
the matter enrolled on the unopposed roll.
[7]
The respondent filed its answer to the
applicant’s application to have the award made an order of
Court on 12
th
June 2008. Ten days thereafter the respondent filed an application to
have the award reviewed and set aside under case number JR610/08.
[8]
The respondent’s defence as set out
in its answering affidavit is that until such time as the said review
application has
bee finally determined, it would be incompetent for
the Honourable Court to consider the applicant’s application in
terms
of
Section 158(1)(c)
of the Act. In terms of the
Labour
Relations Act, once
an award has been issued the successful employee
party may enforce it either in terms of
Section 143
of the same Act,
by having it certified by the Director of the CCMA as if it is an
order of the Court or made an order of Court
in terms of
Section
158(1)(c).
It is trite that a review application does not
automatically stay the enforcement of an arbitration award. In
Professional Security Enforcement v
Namusi (1999) 20 ILJ 1279 (LC)
at
paragraph 10, the Court had this to say:
“
Neither
the Act not (sic)] the common law lays down a hard-and-fast rule that
an application to have an award (or any judicial order)
made an order
of court must be dismissed or conditionally postponed if the person
against whom it is to be made has applied for
its rescission or
review. This court has, however, adopted the practice of postponing
applications brought under
s 158(1)(c)
if the respondent has filed an
application for review.”
[9]
In considering whether or not to make an
arbitration award an order of Court, the Court has a discretion which
it has to exercise
judicially. Some of the factors which the Court
will take into account in exercising its discretion interests of both
the employer
and the employee in ensuring finality of the matter.
This is an imperative of the
Labour Relations Act which
requires the
parties to exercise their rights enriched in the law as speedily as
possible. In this regard the underlying objective
of the
Labour
Relations Act is
to advance economic development, social justice and
labour peace. Related to the issue of securing finality of the matter
is the
issue of securing justice for both parties.
Evaluation
[10]
In terms of
Section 145
of the
Labour
Relations Act, a
party seeking to have an arbitration award reviewed
and set aside has to do so within six weeks of the date of issuance
of the
award.
[11]
In this matter whilst the application to
review the arbitration award was filed after the
section 158(1)(c)
application such application has been filed within the prescribed six
weeks period. The respondent can therefore not be accused
of delay in
instituting the review application.
[12]
The respondent may be criticized for not
filing its response to the application in terms of
section 158(1)(c)
of the
Labour Relations Act. However
, I do not agree that the
respondent had lost interest in the prosecution of such review. There
seem to have been some confusion
about the availability of the
record. In this regard the respondent had to file an application to
compel the bargaining council
to file the record of the arbitration
hearing. There is no evidence that this was done as part of the
delaying tactic on the part
of the respondent. Regard also being had
to the review application papers, it cannot be said that there is no
basis for the complaint
raised by the respondent regarding the
arbitration award.
[13]
It is for the above reasons that I am of
the view that the enforcement of the arbitration award should be
stayed pending the finalisation
of the review application.
[14]
In the premises the following order is
made:
(i)
The applicant’s application in terms
of
Section 158(1)(c)
of the
Labour Relations Act is
stayed pending
the outcome of the review application.
(ii)
There is no order as to costs.
_______________
Molahlehi
J
Date
of Hearing :
11
th
June 2009
Date
of Judgment :
6
th
November 2009
Appearances
For
the Applicant :
Dr G Ebersohn of Ebersohn Attorneys
For
the Respondent: Ms M
Ntsoane of Snyman Attorneys