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[2011] ZALCJHB 74
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Moyo v Execujet (J 2778/05) [2011] ZALCJHB 74; (2012) 33 ILJ 429 (LC) (30 August 2011)
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case: J 2778/05
In the matter between:
T I MOYO
…............................................................................................
Applicant
and
EXECUJET
…............................................................................
First
Respondent
JUDGMENT
LAGRANGE, J:
This
matter was set down for trial on 2 June 2011. In arriving at this
point, the applicant, Mr Moyo, has followed a long and
winding
litigation trail. However, if the trial is to proceed, two special
pleas raised by the respondent employer, Execujet,
have to be
determined in his favour. At the outset, it must be mentioned, that
the respondent should not have waited until
the trial date to deal
with these issues, but should have approached the registrar to set
them down on the opposed motion roll,
to avoid clogging the trial
roll with preliminary motion proceedings.
Before
dealing with these preliminary objections, it is useful to present
a brief chronology of important aspects of the litigation
trail up
to this point. In January 2005, Mr Moyo referred a dispute
concerning an alleged unfair discrimination claim in terms
of
section 10 of the Employment Equity Act 55 of 1998 (‘the
EEA’) and an ordinary unfair dismissal claim under
the Labour
Relations Act 66 of 1995 (‘the LRA’). It appears that
the EEA claim arose out of his employment on a
three-month
temporary contract, which he saw as a precursor to full-time
employment, and the failure of the employer to appoint
him to a
full-time position when it became available. Instead, the employer
engaged a white female in the full-time position.
In his referral
form Mr Moyo identifies the ostensible reason for his dismissal,
presumably provided by Execujet, as the lapsing
of his contract.
The
dispute was set down for conciliation at the CCMA on 3 February
2005. At the conciliation proceedings, the parties concluded
a
written agreement entitled ‘Agreement as the provisions of
section 52 (3) (b) of the EEA 55 of 1998’. The agreement
read:
“
Parties
by signing this agreement consent to the jurisdiction of the
Commission to determine this dispute which would otherwise
fall
within the jurisdiction of the Labour Court. Arbitration dates to be
decided by parties.
"
It
should also be mentioned that the certificate of the outcome issued
by the Commissioner on the same date simply describes the
dispute as
one concerning "
alleged unfair discrimination 10 chapter II
– EEA
”.
The
reference to section 52(3)(b) of the EEA in the agreement is
clearly misplaced. That section deals with disputes relating
to the
protection of employees against victimisation for exercising rights
under the Act and not with the direct enforcement
of unfair
discrimination claims. It is the latter type of dispute the parties
were involved in and hence the reference in the
certificate of
outcome to section 10. Whatever else the parties disagreed about
they clearly understood that the agreement
they concluded on 3
February 2005 dealt with Mr Moyo’s claim of unfair
discrimination. At no stage in this saga was victimisation
under
section 51 of the EEA raised as an issue.
The
provision the parties clearly meant to refer to was section
10(6)(b) of the EEA, which is identical in form to section
52(3)(b), but provides for disputes over unfair discrimination
(excluding dismissal disputes). Sections 10(6) and 10(7) of the
EEA
read:
“
(6) If
the dispute remains unresolved after conciliation-
(a) any party to the dispute may
refer it to the Labour Court for adjudication; or
(b) all the parties to the dispute
may consent to arbitration of the dispute.
(7) The relevant provisions of
Parts C and D of Chapter VII of the
Labour Relations Act, with
the
changes required by context, apply in respect of a dispute in terms
of this Chapter
.”
The
relevant portions of
section 141
of the LRA, which falls under
Part
C
of Chapter VII (dealing with disputes referred to the CCMA) sets
out the terms which apply to an agreement concluded under
section
10(6)(b):
0.5
in; margin-top: 0.17in; margin-bottom: 0in; line-height: 150%">
“
141
Resolution of disputes if parties consent to arbitration under
auspices of Commission
(1) If a dispute remains
unresolved after conciliation,
the Commission must arbitrate the
dispute if a party to the dispute would otherwise be entitled to
refer the dispute to the Labour
Court for adjudication and, instead,
all the parties agree in writing to arbitration under the auspices
of the Commission
.
(2) ...
(3) The arbitration agreement
contemplated in subsection (1)
may be terminated only with the
written consent of all the parties to that agreement, unless the
agreement itself provides
otherwise
.
(4) Any party to the arbitration
agreement may apply to the Labour Court at any time to vary or set
aside that agreement, which
the Court may do on good cause.
(5) (a) If any party to an
arbitration agreement commences proceedings in the Labour Court
against any other party to that agreement
about any matter that the
parties agreed to refer to arbitration, any party to those
proceedings may ask the Court-
(i) to stay those proceedings and
refer the dispute to arbitration; or
(ii) with the consent of the
parties and where it is expedient to do so, continue with the
proceedings with the Court acting as
arbitrator, in which case the
Court may only make an order corresponding to the award that an
arbitrator could have made.
(b) If the Court
is
satisfied that there is sufficient reason for the dispute to be
referred to
arbitration in accordance with the
arbitration agreement, the Court may stay those proceedings, on any
conditions
.
”
(emphasis added)
The
significance of the emphasised portions will be addressed later
when the two special pleas are analysed.
After
concluding the agreement, the applicant then referred his dispute
to the CCMA for arbitration. In his request for arbitration
of 15
March 2005, he identified the issues in dispute as being firstly,
his unfair dismissal and secondly, unfair discrimination.
The
relief he sought was reinstatement to the date of his purported
dismissal at the end of his three month employment period.
From
this point, matters began to unwind somewhat. When the arbitration
hearing convened on 12 October 2005, much time was spent
in
wrangling between Mr Moyo and Mr Jones, the employer's attorney,
over the production of documents by the employer and the
payment of
a witness fee to one of the firm’s employees, whom Mr Moyo
had subpoenaed. The arbitrator eventually made
a ruling on the
matter. He decided that in terms of
Rule 37
of the CCMA rules Mr
Moyo had to pay the witness fees and travelling costs of the
witnessin question.
The
employer then raised a principled objection to the matter
proceeding. In the parties’ efforts to conclude a
pre-arbitration
agreement Mr Moyo sought to include a claim that
his dismissal was unfair based on discrimination as part of the
dispute which
would be arbitrated.
Jones
argued that the CCMA did not have jurisdiction to arbitrate over an
automatically unfair dismissal claim, because the
agreement the
parties had reached to submit the dispute to arbitration under the
CCMA only envisaged a dispute over unfair
discrimination under the
EEA,
and not a dispute over
an automatically unfair dismissal on account of unfair
discrimination under the LRA.
1
The
employer also sought to rely in part on the fact that the
certificate of outcome issued by the CCMA commissioner at the
conciliation hearing also described the dispute as one under the
EEA. The employer argued that the ambit of the dispute as
described
in the certificate might limit what could be dealt with by the CCMA
in arbitration. Mr Moyo, for his part, suggested
that he had not
fully understood the limited scope of the dispute described in the
agreement and in the certificate.
In
an attachment to the draft arbitration agreement, Mr Moyo described
the issues the arbitrator would be required to decide.
The first
four paragraphs read as follows:
"
my story – issues in
dispute
1. I experienced an automatic
unfair dismissal according to the LRA number 66 of 1995,
section 187
(f) in that Execujet unfairly discriminated against me directly and
indirectly because of my sex, race, language, culture, political
opinion, conscience and belief.
2. My attempt to address the above
discriminatory practices by Execujet's management, which attempts
were documented by the Cecilia
Hatting also makes my dismissal an
Automatically Unfair one because I had taken action against the
employer by exercising a right
conferred by the LRA Act 3 66 of
1995. A violation of section 187 (d)(i) and (ii) of the same act.
3. Execujet further violated
section 187
(c) of the
Labour Relations Act 66 of 1995
by compelling
me to accept that unfair discriminatory practices indulged in by
their management were fair and acceptable.
4. To prove that Execujet unfairly
discriminated against me in my point #(1) I have subpoenaed the
letters of appointment of CVs
payslips and IRP5 forms of Mariska
Raath, Annelise Bra and Cindy Robertson, people who were employed in
the same capacity I was
also employed in. The discrepancies in the
terms of employment remuneration, qualifications and experience will
prove beyond
doubt that I was discriminated against. I have also
subpoenaed Marian Muller’s documents because she was appointed
to the
vacancy I was not even considered for interview despite the
fact that I applied for the same and was already and Execujet
employee.
I was also and only male and black person in the
Department with 8 white Afrikaans speaking females.
"
Jones
submitted that this demonstrated that the alleged discrimination
claim was only incidental to proving that Mr Moyo’s
dismissal
was automatically unfair and the CCMA accordingly did not have
jurisdiction to arbitrate this dispute. When Mr Moyo
was asked for
his views on this characterisation of the matter, he agreed that
his alleged dismissal was a result of the discrimination.
As he put
it: "
What came first was the discrimination. What came last
was the automatic unfair dismissal.
” However, he clearly
saw discrimination as central to the dispute and the dismissal as
flowing from it. When the Commissioner
asked him whether he was
saying that the unfair discrimination in terms of chapter 2 of the
Employment Equity Act led
to his dismissal, he confirmed that it
was the discrimination that came first and the dismissal was the
final straw. He then
proceeded to elaborate also on the
respondent's failure to consider him for positions which became
available, any one of which
was exactly the same as the one he was
fulfilling during his contract. Further discussion ensued between
the arbitrator, Jones
and Mr Moyo about the nature of Mr Moyo’s
dispute concerning whether he had been employed on a fixed term
contract or
on probation.
The
final discussion between themconcerned the options available to the
parties in taking the dispute forward. The arbitrator
pointed out
that, in his view, it was still possible for the parties to agree
that Mr Moyo could submit his claim for automatically
unfair
dismissal based on discrimination to arbitration under the auspices
of the CCMA. This suggestion did not appeal to the
respondent and
no such agreement was reached. The arbitrator then proceeded to
make a ruling on the question on whether or
not the CCMA had
jurisdiction to arbitrate the dispute.
Essentially,
the arbitrator adopted the view that the agreement reached by the
parties did not encompass Mr Moyo’s claim
of an automatically
unfair dismissal based on unfair discrimination. He further
reasoned that, unless the parties had agreed
in terms of
section
141
of the LRA to allow the CCMA to determine the claim of
automatically unfair dismissal by consent, he had no jurisdiction
to
hear a dispute concerning a claim of automatically unfair
dismissal. Consequently, he held that he could not arbitrate the
dispute before him.
Labour court proceedings
Following
the arbitrator's ruling on 12 October 2005, Mr Moyo sought to
review and set aside the arbitrator's ruling. The matter
came
before Judge Ngcamu AJ, who dismissed the application on 13
December 2006. Mr Moyo never took this further, and consequently
the arbitrator’s ruling still stood.
A
few days later after the review application was dismissed, the
applicant filed an application for condonation for the referral
of
a dispute to the labour court, which he described as:
"...
a dispute of unfair
discrimination in terms of the
Employment Equity Act 55 of 1998
, in
which I claim the respondent discriminated against me between 15
September 2004 and 31 December 2004,
while I was employed
by as an Accounts Administrator on a temporary contract
,
in terms of the conditions, terms of employment and remuneration
that were offered to me compared to other employees of the
respondent to employed in the same capacity as me. The respondent
further discriminated against me by declining to interview
me for
(2) two full-time employment opportunities that materialised
while
I was thus employed
, one of which was the very same job
and I was really doing on a temporary contract, after having been
successful through (2)
two job interviews. The respondent did not
discipline me for incapacity or misconduct during the whole period I
was its temporary
employee.
"
(emphasis added)
Quite
apart from the fact that no dispute had been referred to this
court, in the form of a statement of case in terms of
Rule 6
of the
Labour Court rules, the so-called condonation application was
incomplete, lacking as it did a founding affidavit. This
was
supplied by Mr Moyo, a month later, in January 2007. In his
explanation for the lateness of the purported referral of the
dispute, Mr Moyo stated the following:
"
(5) The dispute was first
referred to the CCMA on 3 January 2005 and was not arbitrated until
12 October 2005 when the CCMA found
it did not have jurisdiction to
arbitrate same.
(6) I applied for a review of the
CCMA's ruling on 25 after 2005 because the respondent and I had
signed an agreement as per the
provisions of
section 52
(3) (d) of
the
Employment Equity Act 55 1998
in terms of which we consented to
the CCMA jurisdiction.
(7) My review application was only
held on 13 December 2006 and was not successful.
"
It
is clear that the dispute which Mr Moyo intended to refer to the
labour court at this stage was the dispute which the parties
had
previously agreed to submit to arbitration under the auspices of
the CCMA on 3 February 2005, namely a dispute which dealt
only with
unfair discrimination arising in the course of Mr Moyo’s
three-month employment with the respondent and its
failure to
appoint him to one of two available positions. There is no
suggestion in the supposed condonation application that
Mr Moyo was
attempting or intending to refer the dispute over his alleged
automatically unfair dismissal to the labour court.
On
14 February 2007, the condonation application was set down on an
unopposed basis before Judge Tlaletsi AJ, as he then was,
even
though Execujet had filed a notice of opposition on 22 January
2007. It would appear that the respondent’s opposition
was
not brought to the attention of the court and the learned judge
granted the condonation application.”
The
next step in this epic was that the matter was set down for trial
before Judge Molahlehi on 21 June 2007. The learned judge
dismissed
the matter. He found that Mr Moyo had relied on the original review
application as if it was the referral of his
unfair discrimination
case to the labour court for adjudication, and the applicant had
not made a proper referral in the form
of a statement of case under
Rule 6
of the Labour Court rules.
Mr
Moyo then applied for leave to appeal against the dismissal of his
case. The application for leave to appeal was set down
for hearing
on 13 March 2008 and was dismissed because the applicant did not
appear at court. Mr Moyo next applied to rescind
the default
dismissal of his application for leave to appeal. He claimed that
the notice of set down had not reached him in
time. On 11 June
2008, his application for rescission then came before Cele J, who
duly rescinded the judgment dismissing his
application for leave to
appeal.
A
delay then occurred in rescheduling a date for hearing the
application for leave to appeal, as the file had not been returned
to Molahlehi J after the rescission application. Between the
rescission application and the date when the matter was
re-enrolled,
Mr Moyo also approached the Judicial Services
Commission and the Judge President of the Labour Court for
assistance in the
prosecution of his claim. He also sought the
recusal of Judge Molahlehi in the forthcoming leave to appeal
application. In
the end, Mr Moyo then abandoned his application for
the honourable judge’s recusal and withdrew his application
for leave
to appeal. Judge Molahlehi then directed him to file his
statement of case within 21 days of the date of the order issued by
him on 24 June 2010, and confirmed Mr Moyo’s abandonment of
the application for leave to appeal and the recusal application.
It
is useful to recap where matters stood at this point. Because the
applicant had withdrawn his application for leave to appeal
against
the previous order made by Judge Molahlehi on 27 June 2007, that
order was still stood, meaning that no proper referral
of his
unfair discrimination case to the labour court had been made. Hence
Molahlehi J had directed the applicant to file a
proper referral,
which he then did on 12 July 2010 within the time stipulated in the
order.
The
applicant’s statement of claim is confined to his dispute
concerning the respondent’s alleged unfair treatment
of him
during his three-month employment in relation to his remuneration,
and the respondent's failure to employ him in two
vacancies which
became available. It is therefore clear that in this referral the
applicant is not seeking the adjudication
of his dismissal dispute.
In its reply, the respondent pleaded a defence to both claims and
also raised two special pleas,
to which I now turn.
The special pleas
Lack of jurisdiction: no
condonation granted for the late referral
The respondent refers back to the
fact that the dispute which was referred to the CCMA was unresolved
on 3 February 2005, but
the applicant only finally filed a statement
of case referring the matter to the labour court on or about 13 July
2010. In the
absence of condonation for the late referral being
granted,
the respondent
submitted that the court lacked jurisdiction to hear the matter. Mr
Moyo’s response was that he had previously
obtained
condonation for the late referral of his claim from Tlaletsi AJ in
2007.
e.
This presents a conundrum, because a year later Molahlehi J found
that no referral had been made. By relying on the ruling
of
Tlaletsi AJ, the applicant is effectively saying he was granted
condonation for the late filing of a referral which had
yet to be
made
The
first two factors that are normally considered in deciding if a
matter should be condoned, are the length of the delay and
the
reasons for the delay.
2
It is logically impossible for Tlaletsi, AJ to have considered a
referral which had not yet been made. The learned judge could
only
have believed he was considering a referral which had already been
made. At that time the only matter that had been referred
to court
by the applicant was the applicant’s review application,
which had been dismissed.
The
only conclusion that can be drawn is that Tlaletsi AJ was not
advised that the condonation application was opposed, nor
was he
told that no proper referral had in fact been made. In the
circumstances, the condonation ruling made by the learned
judge was
clearly made in error and cannot be accepted as a condonation of
the proper referral which the applicant only made
in July 2010,
after being directed to do so by Molahlehi J.
As
an alternative to relying on the condonation ruling by Tlaletsi AJ,
the applicant argued that Molahlehi J’s direction
that he
must file his statement of case, effectively meant he did not have
to apply for condonation, because it was implicit
in that direction
that its late filing was effectively condoned. It might well be the
case that the fact that the applicant
was directed to file a
statement of case might be a factor to be considered in weighing up
an application to condone the late
referral. Nevertheless, it must
be remembered that the judge’s direction was issued after
confirming that no referral
had been made by mid-2010 and the
applicant was ordered to serve a referral before the matter could
proceed. If Molahlehi J
had intended to condone any referral made
he would have specifically said so, though that would still have
been irregular because
until the referral was actually made, like
Tlaletsi AJ, he would not have known what period of delay he was
being asked to
condone because the date of referral could not be
known in advance.
Given
all these considerations Molahlehi J could no more have granted
condonation thanTlaletsi AJ could have and there is no
evidence
that he even purported to do so. Accordingly, I am satisfied that
if the applicant wished to pursue his claim of unfair
discrimination in the labour court he ought to have applied for
condonation. However, this finding assumes that the applicant
is in
the correct forum, which will be discussed further below.
Waiver of the right to have the
unfair discrimination claim determined
The
respondent’s second objection is that when the arbitration of
the unfair discrimination case came before the arbitrator
on 12
October 2005, the the applicant abandoned that case and decided to
proceed with a new case relating to his allegedly
automatically
unfair dismissal. In turn this led to the Commissioner dismissing
the dispute.
Firstly,
the Commissioner did not dismiss the dispute, but found that he did
not have jurisdiction to hear a dispute which
included
a
claim of automatically unfair dismissal, in the absence of the
parties agreeing to give him consent to arbitrate that dispute
under
section 141
of the LRA.
The
respondent argues that, by attempting to include his dispute over
an automatically unfair dismissal in the arbitration of
his unfair
discrimination claim, the applicant had waived his right to pursue
the unfair discrimination claim.
The
basic principles to sustain a defence of waiver of rights were set
out in the Appellate Division decision in
Road Accident Fund v
Mothupi
2000 (4) SA 38
(SCA)
:
“
[15]
Waiver is first and foremost a matter of intention. Whether it is
the waiver of a right or a remedy, a privilege or power,
an interest
or benefit, and whether in unilateral or bilateral form, the
starting point invariably is the will of the party said
to have
waived it. The
right
in question in the instant case is the statutory provision
specifically accorded to the Fund to avert claims which are out
of
time.
'It is a well-established
principle of our law that a statutory provision enacted for the
special benefit of any individual or
body may be waived by that
individual or body, provided that no public interests are involved.
It makes no difference that the
provision is couched in peremptory
terms.'
( SA Eagle
Insurance Co Ltd v Bavuma
1985
(3) SA 42 (A)
at
49G - H.)
[16] The
test to determine intention to waive has been said to be objective
(cf Palmer v Poulter
1983
(4) SA 11
(T)
at
20C - 21A; Multilateral Motor Vehicle Accidents Fund v
Meyerowitz
1995
(1) SA 23 (C)
at
26H - 27G; Bekazaku Properties (Pty) Ltd v Pam Golding Properties
(Pty) Ltd
1996
(2) SA 537
(C)
at
543A - 544D). That means, first, that intention to waive, like
intention generally, is adjudged by its outward manifestations
(cf
Traub v Barclays National Bank Ltd; Kalk v Barclays National Bank
Ltd
1983
(3) SA 619 (A)
at
634H - 635D; Botha (now Griessel)
and
Another v Finanscredit (Pty) Ltd
1989
(3) SA 773
(A)
at
792B - E); secondly, that mental reservations, not communicated, are
of no legal consequence ( Mutual Life Insurance Co of
New York v
Ingle
1910 TS 540
at 550); and, thirdly, that the outward
manifestations of intention are adjudged from the perspective of the
other party concerned,
that is to say, from the perspective of the
latter's notional alter ego , the reasonable person standing in his
shoes.
[17] The
third aspect has not yet been finally settled by this Court, or so
it would seem (cf Thomas v Henry and Another
1985
(3) SA 889
(A)
at
896G - 898C). What the one party now says he then intended and what
his opposite number now says he then believed may still
be relevant
( Thomas v Henry and Another ( supra at 898A - C)), although not
necessarily conclusive. The knowledge and appreciation
of the party
alleged to have waived is furthermore an axiomatic aspect of waiver
( Martin v De Kock
1948
(2) SA 719
(A)
at
732 - 3). With those two qualifications I propose, in this judgment,
to apply the test of the notional alter ego.
[18] The outward
manifestations can consist of words; of some other form of conduct
from which the intention to waive is inferred;
or even of inaction
or silence where a duty to act or speak exists. A complication may
arise where a person's outward manifestations
of intention are
intrinsically contradictory, as for instance where one telefax
indicates an intention to waive and another,
perhaps as a result of
a typographical error, does not. That problem does not arise in this
case and consequently need not be
discussed
“
3
In
the context of this case, Mr Moyo may have sought to extend his
dispute under arbitration to include his automatically unfair
dismissal claim, but it is difficult to see on what basis he can be
said to have waived his right to pursue his claim for unfair
discrimination when he did so. At that time he was pursuing it as
part and parcel of the same claim. He took the arbitrator
on review
to have the ruling declining jurisdiction over the unfair dismissal
portion of the claim reversed. All of this was
still consistent
with pursuing his claim to have his unfair discrimination claim
determined by arbitration. It is understandable
when he was
rebuffed in this attempt that he then adopted the course of action
of referring the original, more limited, dispute
to this court
instead of to arbitration.
However,
it is not this action which the respondent argues constituted a
waiver, but his earlier one of trying to expand his
claim.
Nevertheless, the provisions of
section 141(3)
militate against a
waiver of the right to rely on the arbitration agreement, based
simply on the conduct of the party who allegedly
waived its right.
That provision makes it clear that the agreement in question may
only be terminated on the
written
consent of both parties,
unless the agreement provides otherwise. In this instance, no
written agreement to terminate the agreement
was concluded and
therefore the agreement remains in effect by virtue of the
provisions of
section 141(3).
Accordingly,
the special plea based on waiver must fail.
The effect of the arbitration
agreement
However,
this special plea unavoidably raises another problem with the
applicant trying to pursue his unfair discrimination
claim in the
labour court, quite apart from not obtaining condonation for the
late referral. Mr Moyo and the employer are still
bound by the
provisions of the agreement concluded on 3 February 2005, by virtue
of the
section 141(3).
This
court cannot simply abrogate that agreement. The only appropriate
course of action in the circumstances is to refer the
applicant’s
unfair discrimination claim to the CCMA to be arbitrated by it as
intended by that agreement. It is clear
that the court is in the
position envisaged by
section 141(5)(b)
, namely where neither party
has asked the matter to be referred to arbitration nor have parties
consented for the court to
hear the matter as if it were
arbitrating the dispute. In the circumstances, I do not believe the
court can assume jurisdiction
in this matter, and the matter will
be referred back for arbitration under the auspices of the CCMA
where it should have been
dealt with in the first place, subject to
a few directions to try and expedite matters.
It
is unfortunate that matters have taken so long to reach this point.
However, the fact that matters have taken this roundabout
course is
a consequence of the changes in strategy adopted by the applicant
as well as his non-adherence to basic procedural
requirements of
the dispute resolution process of the LRA and the Rules of the
Labour Court.
Costs
Ordinarily
because the respondent is successful with at least one of its
in
limine
objections it might have some expectation of being
awarded its wasted costs. However, the matter should not have been
enrolled
for trial given the nature of the
in limine
points
which had to be determined. Those objections were clearly the ones
that could be determined on the pleadings and did
not require
evidence: they should have been set down on the opposed motion roll
for determination, instead of occupying two
days on the court roll.
Because it was not enrolled for determination in the motion court,
two dayswhich might have been allocated
to another matter that
could have run were wasted. In the circumstances, no costs will be
awarded.
Order
In
the light of the analysis above it is ordered that
In view of the arbitration agreement
concluded between the parties on 3 February 2005, to which
section
141
of the LRA and
section 10
of the EEA applies, the proceedings
of the Labour Court in this matter are stayed and the dispute is
referred to the CCMA for
arbitration pursuant to the said
agreement.
The pre-trial minute concluded by
the parties shall serve as a pre-arbitration minute for the
purposes of the arbitration.
The Director of the CCMA must enrol
the matter for arbitration.
R LAGRANGE, J
JUDGE OF THE LABOUR COURT
Date of hearing: 02 June 2011
Date
of judgment: 30 August 2011
Attendance:
For
the Applicant: In person
For
the Respondent: W Hutchinson instructed by Kirschmann Attorneys
1
Section
10(1)
of the EEA specifically excludes unfair dismissal disputes
based on unfair discrimination from the ambit of disputes that can
be dealt with under that Act. The mechanisms for resolving such
disputes are set out in the provisions of Chapter VIII of the
LRA.
2
Melane
v Santam Insurance Co Ltd
1962 (4) SA 531
(A)
at
532C-D, Holmes, JA identified the factors normally considered in
deciding applications for condonation thus: “
Among the
facts usually relevant are the degree of lateness, the explanation
therefor, the prospects of success, and the importance
of the case
.”
3
At
49c-50d