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[2010] ZALCJHB 356
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Dell v HPD Construction (J1449/09) [2010] ZALCJHB 356 (3 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG.
Reportable
Case No: J 1449/09
In
the matter between
RALPH
DENIS
DELL
Applicant
and
HPD
CONSTRUCTION
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
The applicant in seeking to have the agreement concluded between him
and the respondent made an order of court brought it in
terms of
section 142A of the Labour Relations Act 66 of 1996 (the LRA). The
respondent took a point in
limine
regarding the jurisdiction
of the court.
[2]
The respondent argued that the court did not have jurisdiction to
entertain the matter because section 142A of the LRA gives
the power
to the Commission for Conciliation, Mediation and Arbitration (the
CCMA), to make an agreement an arbitration award.
[3]
During argument the applicant brought an application from the bar to
have it application to be amended and to be read as brought
in terms
of section 158(1)(c) of the LRA. Mr. Ford appearing for the
respondent did not oppose the application but indicated that
if
granted the matter should be postponed to afford the respondent an
opportunity to challenge the validity of the agreement.
[4]
The brief background of this matter is that the applicant was prior
to termination of his employment contract employed by the
respondent
as a financial director. The contract was terminated by mutual
agreement between the parties. However, the applicant
complaint that
he was underpaid by an R39 169. 47. Because the respondent would not
agree that the applicant was underpaid, a dispute
was referred to the
CCMA conciliation during November 2008. A settlement agreement was
then reached during the conciliation proceedings.
The relevant part
of the settlement agreement read as follows:
“
2. The parties
agree that an amount of
R39169.47
(thirty nine
thousand, one hundred and sixty nine rand shall be paid to him
(applicant) within 7-days of signing this agreement.”
[5]
The question to consider in determining whether or not to grant the
amendment is whether the respondent would be prejudice if
an
amendment which is introduced at this stage of the proceedings should
be granted. The respondent did not raise the issue of
prejudice
should the amendment be granted.
[6]
The respondent was correct in not opposing the application because in
both form and substance the provisions of sections 142A
and 158(1)
(c) of the LRA are the same. Section 142A reads as follows:
142A.
Making settlement agreement arbitration award
“
(1)
The Commission may, by agreement between the parties or on
application by a party, make any settlement agreement in respect
of
any dispute that has been referred to the Commission, an arbitration
award.
(2)
For
the purposes of subsection (1), a settlement agreement is a written
agreement in settlement of a dispute that a party has the
right to
refer to arbitration or to the Labour Court, excluding a dispute that
a party is entitled to refer to arbitration in terms
of either
section
74(4) or 75(7).”
And the relevant part of
section 158(1) (c) of the LRA reads as follows:
“
158.
Powers of Labour Court
(1)
The Labour Court may -
(a)
. . .
(b)
. . .
(c)
Make any arbitration award or any settlement agreement an order of
the Court;”
[7]
In the light of the above I am of the view that the application to
amend the applicant’s notice of motion stands to be
amended and
the application should therefore be read as being brought in terms of
section 158(1) (c ) of the LRA.
[8] The question that
then needs to be considered is whether the agreement between the
parties qualifies to be made an order of
court in terms of section
158(1) (c) of the LRA.
[9]
In Tsotetsi v Stallion Security (Pty) Ltd
[2009] JOL 24384
(LC
),
the Court held that:
“
In terms of
section 158(1)
(c) of the
Labour Relations Act 66 of 1995
, the court
has the power to make any settlement agreement an order of court.
There seems to be nothing in
section 158(1)
(c) that limits the
powers of the court to only those settlement agreements relating to
disputes for which the parties had the
right to refer to the court
.”
[10] It seems to me that
the court has the power to make any settlement agreement an order of
court that a party has a right to
either refer to arbitration or the
court. There is no specific reference to the definition of agreement
in the
Labour Relations Act. Thus
in considering whether an agreement
should be made an order of court, account should also be taken of the
provisions of
section 142A
of the
Labour Relations Act.
[11
] In my view,
agreements that may be made orders of court include those disputes
which may have not yet been referred for which
a party had a right to
refer to the Labour Court. In other words, agreements which may be
made orders of court would include those
agreements concluded before
such disputes are referred for conciliation or litigation. By way of
example if parties reach an agreement
regarding a discrimination
dispute before it is referred to conciliation, such an agreement
could be made an order of court. Similarly,
in the case of an
arbitral dispute, if parties reach an agreement regarding an unfair
dismissal before such a dispute is referred
for conciliation; such an
agreement could be made an arbitration award because it is a dispute
which a party has the right to refer
to the Commission.”
[12] In the case of
Tumelo Stephen Molaba v Emfuleni Local Municipality & others
[2009] JOL 23477
(LC), Van Niekerk J in considering whether to make a
settlement agreement an order of court had the following to say:
"[6]
The wording of
s 142A
suggests that for an agreement to constitute a
settlement agreement, a number of requirements relating to nature and
form must
be met. First, the dispute that is the subject of the
settlement must have been 'referred to the Commission'. 'Referred'
cannot
mean referred to arbitration in terms of
s 136
–
s 142A
(1) requires that the dispute must be one that a party has the right
to refer either to arbitration or to the Labour Court. 'Referred
to
the Commission' therefore means referred for conciliation in terms of
section 134.
This section, read with the requirement that the dispute
be one that a party has the right to refer either to arbitration or
to
the Labour Court, means that it is only settlements of disputes
about a matter of mutual interest that are either arbitrable or
justiciable by this Court that may be the subject of an arbitration
award in terms of
s 142A.
This excludes, for example, a settlement
agreement in respect of a dispute about wages. Finally, the agreement
must be in writing.
Those cases that deal with the definition of a
collective agreement (which in terms of
s 213
must be a 'written
agreement') would obviously be helpful in giving content to this
requirement.”
[13]
In
Mathosi & others v Kintetsu World Express (Pty) Ltd &
Another (2008) 29 ILJ 2785 (LC
), it was held that:
the Court
will only exercise discretion to make agreement an order of court
where applicant provides sufficient evidence of non-compliance
with
an agreement
.
[14]
In the present instance the respondent does not deny the existence of
the agreement but suggested that there was a mistake
as the amount
which due to the applicant “was approximately R20 000,
00(twenty thousand) and not R39 169.47 (Thirty nine
thousand and
sixty rand, fourty cents) as contracted.” According to the
respondent the error in the settlement amount occurred
because of the
incorrect information supplied by the applicant. The respondent
further contends that the applicant was aware that
amount stated in
the settlement agreement would not be paid because the respondent had
resiled from the agreement.
[15]
In my view the applicant has made out a case that indicates very
clearly that an agreement was concluded between him and the
respondent. That contract has not been set aside by the respondent.
The agreement on face value is valid and signed for by a
representative
who was authorized to do so by the respondent. There
is clear evidence of non-compliance with the agreement on the part of
the
respondent. The plea of respondent that it signed the agreement
on the basis misinformation by the applicant does not advance the
case of the respondent in my view.
[16]
In my view the applicant stands to succeed in his application to have
the settlement agreement an order of court. I see no
reason in law
and fairness why costs should not follow the result.
[17]
In the premises the following order is made:
1.
The settlement concluded between the parties on the 17
th
November 2008, is made an order of court.
2.
The respondent is to pay the costs of the applicant.
___________________
Molahlehi
J
Date
of Hearing :
23
rd
October 2009
Date
of Judgment :
3
rd
February 2010
Appearance
For
the Applicant :
Adv K Ioulianou
Instructed
by :
Kevin Moodley &
Associates
For
the Respondent: Adv B Ford
Instructed
by :
Bartholomew & Associates