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[2011] ZALCJHB 213
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Quick Trading (Pty) Ltd t/a TC Panel Beaters v Jonker (J655/11) [2011] ZALCJHB 213 (24 May 2011)
PATHER AJ
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: J655/11
Not reportable
In the matter between
QUICK TRADING (PTY) LTD t/a TC PANEL BEATERS
Applicant
and
JONKER, ROSEMARY
Respondent
_____________________________________________________________
JUDGMENT
_____________________________________________________________
PATHER AJ
Brief introduction
[1] This is an urgent application which was heard on 24 May 2011.
These are my brief reasons for the order and may be supplemented if
necessary.
[2] The applicant sought urgent relief against the first and second
respondents, in the main on the following terms:
"Staying and/or setting
aside the writ of execution issued by the Registrar of the Labour
Court on or around 29 March 2011
under case number J2551/10, pending
the outcome of the rescission application launched in the Dispute
Resolution Centre for the
Motor Industry Bargaining Council under
case number MINT1193N."
The first respondent (Ms Jonker) opposed the application.
Brief background
[3] After being dismissed on 5 October 2007, Ms Jonker referred a
dispute concerning an unfair dismissal to the Dispute Resolution
Centre for the Motor Industry Bargaining Council (DRC). The matter
was eventually arbitrated on 20 August 2008.
[4] On the day of the arbitration hearing the applicant's (the
respondent in the DRC matter), then legal representative, Mr Stone,
applied for the matter to be postponed because according to the
respondent a key witness was off sick on that day. Ms Jonker's
representative, an official of the union, (the applicant in the DRC
matter) opposed the application for postponement. He testified
at
the hearing that contrary to reports Ms Jonker had telephoned the
applicant's place of business during the interval, had asked
to speak
with the witness and had been informed simply that the witness was
not in her office at the time of the telephone call.
[5] Commissioner M H Markus ("the Commissioner") who had
been appointed to arbitrate the matter accepted the evidence
as being
unchallenged.
[6] The application for a postponement was therefore refused. In
this regard the Commissioner under the subheading "Ruling
on
Postponement Application" says the following:
"When I pointed out to Mr
Stone that the uncontroverted evidence of Mr Bekker and his client,
which had not been challenged
by him during cross-examination,
precluded my granting his application for postponement; Mr Stone
thereupon withdrew as respondent's
representative in the proceedings
and I duly directed that the matter proceed in the absence of the
respondent, who had advised
Mr Stone following his communication to
his client of my refusal of a postponement, that it would not be
attending the arbitration."
[7] Although the sentence is far too long, the Commissioner's
reasoning in this regard is sound and after hearing Ms Jonker's
evidence, the Commissioner found that her dismissal was unfair and
ordered the applicant to compensate her in the sum of R73 000,
being
the equivalent of ten months' wages.
[8] On behalf of the applicant it is contended that:
"As soon as practically
possible, after becoming aware of the said arbitration award the
applicant brought the necessary rescission
application in the DRC in
order to have the arbitration award set aside and fresh arbitration
proceedings heard".
[9] From the Commissioner's statement referred to in paragraph 3
above, it should have been clear to the applicant that an award
was
pending and that it needed to act with haste in filing any
application for rescission of the award. Not even a medical
certificate
in respect of the key witness's absence at the
arbitration was submitted to the DRC.
[10] Instead the applicant failed to behave proactively, but waited
until the respondent attempted to enforce the award over two
years
later by execution of the writ on 14 April 2011, before enquiring
from the DRC what had become of its rescission application,
which was
apparently launched in December 2008.
[11] As at 21 April 2010 the DRC had no record of the rescission
application. It is contended that the only realistic explanation
is
that the DRC lost the applicant's rescission application. Even if
that were true, which this Court finds improbable, the applicant
did
nothing to expedite the matter.
[12] Given that its application to have the arbitration hearing
postponed was unsuccessful more than 2 years previously the applicant
would have been expected to ensure that no further delays occur in
order to show that its attack of the arbitration award is
bona
fide.
[13]
In any event, the award had already been made an order
of court on 9 March 2011. After proper service of that application
under
case number J2551/10, the applicant claims not to have received
the application. Ms Jonker's submission that the applicant omitted
to oppose the application under case number J2551/10 is reasonable
and probable. That order of the Court stands.
[14] What is clear from the papers is that the Sheriff's attending on
the applicant's premises, armed as he was with the writ,
caused the
applicant to spring into action. Mr Graham on behalf of the
applicant argued that Ms Jonker had delayed the prosecution
of her
claim, as execution of the writ was only attempted on 14 April 2011.
[15] Ms Groenewald on behalf of Ms Jonker countered this by pointing
out that the law allows an applicant three years in which
to
prosecute her claim and that Ms Jonker had acted within the timeframe
allowed. I agree.
[16] Despite being successful in the DRC arbitration, Ms Jonker has
had to endure further litigation in attempting to enforce the
award.
There is in my view no further
onus
on her to display any
alacrity in the prosecution of her claim other than to do so within
three years from the date of the award
to avoid its becoming
prescribed.
[17] In any event, I am not convinced that the applicant has good
prospects of success in either a rescission or a review application
in respect of the award. The award in my view is well-reasoned,
despite its being based on the version only of Ms Jonker's.
[18] Furthermore the arbitration proceedings were conducted fairly
after the Commissioner had given both parties an opportunity
to make
representations regarding the application for a postponement. The
applicant's conduct from the outset seems to have been
aimed at
delaying the finalisation of the dispute, which Ms Jonker had
referred to the DRC during 2007.
[19] Therefore I make the following order:
1. The application is dismissed.
2. The applicant is to pay the respondent's costs.
_____________________
Pather AJ
Acting Judge of the Labour Court of South Africa
Date of hearing: 24 May 2011
Date of judgment: 24 May 2011
Appearances:
For the
Applicant: D. Graham of Donald Graham Attorneys
For the Third Respondent: A. Groenewald of Anika Groenewald Attorneys
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