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[2010] ZALCJHB 361
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Spar Group Ltd t/a Spar South Rand Distribution Centre v Commission for Conciliation Mediation And Arbitration and Others (J1779/2010, GAJB11894/10) [2010] ZALCJHB 361 (10 September 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
CASE NO: J1779/2010
CCMA
CASE NO: GAJB11894/10
In
the matter between:
SPAR
GROUP LIMITED t/a SPAR SOUTH
RAND
DISTRIBUTION CENTRE
Applicant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
MANDLA
DUBE
Second Respondent
HLATSHWAYO, T
N.O
Third
Respondent
JUDGMENT
FRANCIS
J
1. The applicant,
approached this Court on an urgent basis for the following relief:
“
1.
DISPENSING
with the provisions of the rules of the above Honourable Court
relating to time and manner of service referred to therein and
dealing with the matter as one of urgency in terms of rule 8 of the
rules for the conduct of proceedings in the Labour Court.
2.
ORDERING
that
a Rule Nisi do issue calling upon the Respondents to appear and show
cause on a date and time to be determined by this Honourable
Court
why a final Order should not be made in the following terms:-
2.1
DIRECTING
that all proceedings under CCMA Case No:
GAJB11894/1O be stayed under the auspices of the First Respondent
pending the finalisation
of the review application proceedings
instituted by the Applicant in the above Honourable Court under Case
No: JR1955/10;
2.2
INTERDICTING AND RESTRAINING
the third Respondent from
conducting an arbitration on 13 September 2010 under Case No:
GAJB11894/10 and any time thereafter until
such time as the review
application filed under case number: JR1955/10 has finally been
determined by this Honourable Court;
2.3
INTERDICTING AND RESTRAINING
the First Respondent from
appointing a Commissioner other than Third Respondent from conducting
an arbitration on 13 September 2010
under Case No: GAJB11894/10 and
any time thereafter until such time as the review application filed
under case number: JR1955/10
has finally been determined by this
Honourable Court;
2.4
DIRECTING
the First Respondent from removing the dispute under
Case No: GAJB11894/10 from its arbitration roll on 13 September 2010.
3.
DIRECTING
that
such of the Respondents who or which oppose the application for the
above relief pay the costs of suit jointly and severally,
the one
being
[paying]
the
other to be absolved.
4.
ORDERING
that the provisions of paragraphs 2.1 - 2.4 shall
operate with immediate effect as an interim Order pending the final
Order being
made on the return date of the Rule Nisi as aforesaid.
5.
GRANTING
the Applicant further and alternative relief.”
2.
The applicant is in essence seeking an urgent interim order, for an
order staying the arbitration proceedings pending the finalisation
of
the review application filed with this Court.
3.
The second respondent was employed by the applicant. He was
dismissed for gross insubordination on 24 February 2010.
On 22
April 2010, he referred an alleged unfair dismissal dispute to the
CCMA. The referral was 10 days late which necessitated
him
having to seek condonation for his late referral. The
condonation application was opposed by the applicant. The
application was set down for argument before commissioner Makhubela
on 18 May 2010. Both parties appeared before commissioner
Makhubela. On 25 June 2010, the applicant received the
condonation ruling of commissioner Makhubela who condoned the late
filing of the referral. Aggrieved with the outcome in the
condonation ruling, the applicant on 13 August 2010 launched an
application in terms of section 158(1)(g) of the Labour Relations Act
66 of 1995 (the LRA) under case number JR1955/10 seeking
inter
alia
to review and set aside the
condonation ruling.
4.
The arbitration hearing was enrolled by the CCMA for a hearing on 13
September 2010. It is not clear from the founding
affidavit
when the applicant was notified of the date of the hearing. It
is unclear why the date is not mentioned.
On 18 August 2010 the
applicant’s attorney of record requested the CCMA to remove the
matter from the roll pending the finalisation
of the review
application. The CCMA informed the applicant’s attorney
on 19 August 2010 that an application for a review
does not stay
further proceedings at the CCMA and that he must apply to this Court
for an order to stay the proceedings pending
the outcome of the
review application. The applicant states that should the review
application be upheld, the CCMA will not
have authority to arbitrate
the dispute. Being granted condonation is a jurisdictional
prerequisite to the CCMA validly exercising
arbitral powers.
Whilst condonation was granted, the applicant contends that the
condonation ruling was unreasonable and/or
irrational and/or
unjustifiable.
5.
It is contended in the founding papers that the review application
must first be determined, prior to any arbitration being heard
by the
CCMA. It was contended that the review application was filed
within a reasonable time. It was contended that
this
application was brought on an urgent basis. The urgency, is
axiomatic having regard to the set down for arbitration
on 13
September 2010. Whilst it is conceded that labour disputes must be
expeditiously dealt with, expeditiousness is not a substitute
to
lawfulness and rationality prevailing. It would be unfair that
the matter proceed to arbitration where the review application
is
still pending and is in its infancy.
6.
The applicant has set out its grounds of review. It is for
purposes of this judgment not necessary to repeat those.
Since
the applicant is seeking interim relief on an urgent basis, it must
comply with the provisions of rule 8 of the Rules of
this Court.
The affidavit must set out the reasons for urgency and why urgent
relief is necessary and the reasons why the
requirements of the rules
were not complied with. The grounds for urgency are set out in
paragraphs 57 to 62 of the founding
affidavit. The explanation
is that on 16 August 2010, the applicant notified its applicant’s
attorney of the set down
upon receipt same by his office. On 18
August 2010 the applicant’s attorney addressed a letter to the
CCMA requesting
that the matter be removed from the arbitration roll
on 13 September 2010, pending the finalisation of the review
application.
The CCMA responded on 19 August 2010 and advised
that an order obtained from this Court would stay the arbitration.
The applicant’s
attorney commenced drafting the application
during the afternoon of 23 August 2010. The application was
finalised on 27 August
2010. The applicant has not wilfully
delayed in the filing of this application and has acted with the
urgency in approaching
this Court. Having regard to the set
down of the matter for arbitration on 13 September 2010, the urgency
of the application
is axiomatic. The review application was
filed with this Court on 18 August 2010. It is trite that the
filing of a
review unlike an appeal does not stay the enforcement of
proceedings at the CCMA or bargaining councils. The applicant
must
have known that the CCMA after condonation for the late referral
was granted that the dispute would be enrolled for arbitration.
There is simply no explanation why it waited until the matter was
enrolled to bring this application on an urgent basis.
It could
have applied for this order or a similar one earlier. To launch
this application a few days before the arbitration
hearing is
unacceptable. The applicant’s representative contended
that the application could not have been brought
earlier due to the
intervening weekends between when the applicant was notified of the
arbitration hearing and instructions were
given to him. The
intervening weekend is not an excuse for not having launched the
application earlier. Since the applicant
is seeking condonation
for non compliance with the provisions of the rule 8 of the Rules of
this Court, it had to explain the delays
adequately. It has not
done so. The urgency is self created and the matter
stands to be struck from the roll
for this reason. However, no
purpose will be served to strike the matter from the roll since the
application stands to be
dismissed for two other reasons.
7.
It is trite that review applications brought under section 145 or
158(1)(g) of the LRA must be brought to this Court within six
weeks
when the ruling or award was served. The review application was
filed outside the six-week period. The ruling
was received by
the applicant on 25 June 2010. The applicant states in the
founding papers that the review application was
launched on 13 August
2010. This is not correct. The founding affidavit was
signed on 12 August 2010. The notice
of motion was signed on 13
August 2010. It was filed with this Court on 18 August 2010.
It should have been filed on
6 August 2010. It was filed twelve
days late. It was served on the respondent on 17 August 2010.
There
is no application for condonation pending before this Court for
the late filing of the review application. The applicant did
not file an original founding affidavit with the review application
in terms of the provisions of rule 5(3). There is currently
no valid
review application pending before this Court.
8. It is trite that this
Court has jurisdiction in terms of section 158(1)(g) of the LRA to
review interlocutory rulings made by
commissioners, and is empowered
generally by section 158(1)(a)(i) of the LRA to grant urgent interim
relief. A worrying trend
has developed where parties who are
not happy with rulings made by commissioners or arbitrators in
uncompleted matters would want
to interdict the uncompleted
proceedings. This Court may in exceptional cases where a grave
injustice might otherwise result
or where justice might not by other
means be attained, interdict uncompleted proceedings. I share
the views and sentiments
expressed by Van Niekerk J in
Trustees
for the time being of the National Bioinformatics Network Trust v
Jacobson & others
(2009) 30 ILJ 2513 (LC) especially at pages
2516 to 2518. See also the unreported judgment in
Road
Accident Fund vs CCMA & others J1779/2010
delivered on 7
September 2010. Two reasons were given by van Niekerk J why the
limited basis for intervention in criminal
and civil proceedings
ought to be extended in uncompleted arbitration proceedings conducted
under the auspices of the CCMA and
why this Court should be slow to
intervene in those proceedings. The first is a policy related
reason that it would undermine
the informal nature of the system of
dispute resolution established by the LRA. The second reason is
that to permit applications
for review on a piecemeal basis would
frustrate the expeditious resolution of labour disputes. In
other words, in general
terms, justice would be advanced rather than
frustrated by permitting CCMA arbitration proceedings to run their
course without
intervention by this Court. This conclusion was
recently underscored in
Commercial Workers Union of SA v Tao Ying
Metal Industries & others
(2008) 29 ILJ 2461 (CC) where
Ngcobo J (as he then was) stated at paras 62, 63 and 65:
‘
[62]
The role of commissioners in resolving labour disputes is set out in
s 138(1) of the LRA which provides:
“
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the
dispute with minimum of legal formalities.”
[63]
The LRA introduces a simple, quick, cheap and informal approach to
the adjudication of labour disputes.
This alternative process
is intended to bring about the expeditious resolution of labour
disputes. These disputes, by their
very nature, require speedy
resolution .......
[65]
.... This requires commissioners to deal with the substance of a
dispute between the parties.
They must cut through all the
claims and counter-claims and reach for the real dispute between the
parties. In order to perform
this task effectively,
commissioners must be allowed a significant measure of latitude in
the performance of their functions.”
9.
A commissioner may in terms of section 191(2) of the LRA on good
cause shown, permit the employee to refer the dispute to the
bargaining council or CCMA outside the 30-day period. It is
ironic that the applicant takes issue with the commissioner who
had
granted condonation to the second respondent whose referral was filed
ten days late. The applicant’s review application
was
filed twelve days late without any application for condonation and
without filing the original founding affidavit. The second
respondent
was dismissed from employment on 24 February 2010. He referred
a dispute to the CCMA on 22 April 2010 with an
application for
condonation. The condonation hearing was set down on 18 May
2010. The ruling was served on the applicant
on 25 June 2010.
The arbitration hearing will take place on 13 September 2010.
If the review application proceeds it
will in all probability be
enrolled for a hearing once all the steps have been followed for a
hearing including an application
for condonation in June/July 2011.
If the review application goes against the applicant, it might want
to exercise its right
to appeal and this matter might be heard on
appeal some time in 2013. There might be further delays.
10.
It is trite that the LRA introduces a simple, quick, cheap and
informal approach to the adjudication of labour disputes.
This
alternative process is intended to bring about the expeditious
resolution of labour disputes. These disputes, by their
very
nature, require speedy resolution. The arbitration hearing is
enroled for a hearing on 13 September 2010. This
is not one of
those exceptional circumstances where this court should intervene by
interdicting the arbitration proceedings.
The views expressed
in
Trustees for the time being of the
National Bioinformatics Network Trust
applying
equally in the present case.
11.
The applicant has failed to establish a
prima
facie
right to the relief sought.
12.
The application stands to be dismissed. Since the matter is
unopposed there is no order as to costs.
13.
In the circumstances I make the following order:
13.1
The application is dismissed.
13.2
There is no order as to costs.
_____________________________________
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: I I
MAHOMED OF EVERSHEDS
FOR
RESPONDENTS
: NO
APPEARANCE
DATE
OF HEARING
: 7
SEPTEMBER 2010
DATE OF
JUDGMENT
: 10
SEPTEMBER 2010