About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 168
|
|
South African Post Office Ltd v Moloi NO and Others (J1426/2011) [2011] ZALCJHB 168 (12 October 2011)
SOUTH
AFRICAN POST OFFICE LIMITED v L.MOLOI N.O, COMMISSION FOR
CONCILIATION ARBITRATIION AND MEDIATION, SOUTH AFRICAN
POSTAL
WORKERS UNION obo MEMBERS. CASE NO: J1426/11.APPLICATION TO
REVIEW AND SET ASIDE THE CERTIFICATE OF OUTCOME.APPLICATION
DISMISSED.
MOLAHLEHI
J
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Reportable
Case No: J1426/2011
In the matter between:
SOUTH AFRICAN POST OFFICE LIMITED
.....................................................
Applicant
and
L MOLOI N.O
...........................................................................................
1
st
Respondent
COMMISSION FOR
CONCILIATION
ARBITRATION
AND MEDIATION (“CCMA”)
..........................................
2
nd
Respondent
SOUTH AFRICAN POSTAL WORKERS
UNION obo MEMBERS (“SAPWU”)
........................................................
3
st
Respondent
Date of Reasons: 12 October 2011
REASONS FOR ORDER
MOLAHLEHI J
Introduction
This is an application to review and
set aside the certificate of outcome issued by the First Respondent
(the Commissioner) under
case number GAJB 11574-11. The applicant
seeks to review the certificate of outcome because of the recording
by the Commissioner
that the dispute concerns “(Section) 64(4)
Unilateral change to the terms and conditions of employment.”
Based on that certificate, Third
Respondent (the respondent) notified the applicant of its intention
to embark on an industrial
action. In this respect, the applicant
sought and obtained an interim order interdicting and restraining
the respondent together
with its members from embarking on an
alleged unprotected strike which had been planned to commence on
25
th
July 2011.
The applicant now seeks to have the
interim order made on 23
rd
July 2011 by Basson J
confirmed and made a final order. An interim order made on that day
reads as follows:
“
1.1
That the certificate of outcome issued by the first respondent on the
19
th
July
2011 under case number GAJB11574-11 of the second respondent in terms
of which a dispute concerning the unilateral change to
the terms and
conditions between the applicant and the third respondent remained
unresolved, be reviewed and set aside;
1.2
That it be declared that any industrial action that may be embarked
upon by the third respondent on the strength of the certificate
of
outcome, will be unprotected;
1.3
That any industrial action by the third respondent on the strength of
the certificate of outcome, be stayed pending the final
outcome of
this application.
1.4
That the dispute be remitted to the CCMA to be considered de novo.”
On the return date, on 9
th
September 2011, the matter was postponed to 28
th
September 2011 to afford the applicant the opportunity to verify the
authenticity of annexure “
TMM1”
introduced by the
Respondent after the pleadings were closed. The applicant has now
confirmed that “
TMM1
” which is titled “Take
Note” is indeed an official document issued by the applicant
and it confirms in essence
what is contained in annexure “
TMM1.”
In light of the conclusion reached in
this judgement there is no need to deal with the question of whether
a case has been out
for the admission of the additional affidavit of
the respondent.
Background Facts
It is common cause that the
respondent referred a dispute to the Second Respondent (the CCMA)
concerning an alleged change in
the terms and conditions of
employment on 10
th
May 2011. The nature of the dispute as
summarised in the LRA form 7.11 reads as follows:
“
The
employer has withdrawn a Group Funeral Scheme that has been in
(enstamed) employees as its benefits should you die as a result
of an
accident which was a term and condition of employment.”
The conciliation process having
failed to produce the desired result the Commissioner issued a
certificate of outcome and categorised
the dispute as concerning
unilateral change to the terms and conditions of employment in terms
of section 64(4) of the Labour
Relations Act (the LRA)
1
.
Arising from the certificate of
outcome, the respondent issued the applicant with notice of
intention to commence with industrial
action on 25
th
July
2011.
Grounds for Review
The applicant contends that the
certificate of outcome is reviewable because the Commissioner failed
to apply his mind to the
true nature of the dispute. In this
respect, the applicant contends that the Group Funeral Cover Scheme
upon which the respondent
based their demand is not a term and
condition of employment. The applicant further states in its
founding affidavit that it
never cancelled or withdrew Group Funeral
Cover Scheme and that that cover is still in place.
According to the respondent, the
applicant has changed the above policy through “Take Note”
dated 13
th
July 2006. There was apparently an earlier
agreement between the parties regarding the changes which were
according to the respondent
was due to the applicant’s
operational requirements.
The changes to the group scheme which
led to the dispute were however unilaterally introduced by the
applicant says the respondent.
The effect of the changes was that
the group scheme altered the conditions of employment by limiting
the right to benefit under
the group scheme to those who are injured
or die during working hours. The respondent says that it discovered
the change in the
terms and conditions of employment after one of
its members approached it concerning a claim that was repudiated in
respect of
an employee who suffered death as a result of unnatural
causes. The affected member had informed the respondent that the
reasons
given for declining the claim was that the group scheme
covers only death occurring during working hours and no longer any
other
time.
Subsequent to the notice of intention
to embark on an industrial action, the parties met on 21
st
July 2011 with the view to averting the industrial action. The
attempt at settlement was unsuccessful.
On 22
nd
July 2011, the
respondent distributed flyers at the work place urging its members
to embark on an industrial action commencing
on 25
th
July
2011.
On the same day, 22
nd
July
2011, the applicant informed the respondent that it intends bringing
an urgent application to be heard on 28
th
July 2011 and
required the respondent to stay its industrial action pending the
outcome of that application.
In the founding affidavit of the
initial application which the applicant had intended to enrol for
the 28
th
July 2011, the reasons for urgency are set out
as follows:
“
The
reasons for the urgency of the initial application which was intended
to be enrolled for 28 July 2011, is set out at paragraphs
24 to 28 of
the applicant’s founding affidavit. The essential reason for
the urgency was because Applicant wanted “afford,
the Third
Respondent sufficient notice of the urgent application and to make
provision for adequate time to file opposing papers
and to avoid
unnecessary delays.”
The
other reason was because the Applicant had requested the Third
Respondent to suspend the intended strike action pending the
hearing
of the urgent matter on the 28
th
July 2011.”
I assume the above reasons were given
with the view to complying with the provisions of Rule 8 of the
Rules of the Labour Court
which reads as follows:
“
8
Urgent relief
(1)
A party that applies for urgent relief must file an application that
complies with the requirements of rules 7(1), 7(2), 7(3)
and, if
applicable, 7(7).
(2)
The affidavit in support of the application must also contain-
(a)
the reasons for urgency and why urgent relief is necessary;
(b)
the reasons why the requirements of the rules were not complied
with, if that is the case; and
(c)
if a party brings an application in a shorter period than that
provided for in terms of section 68(2) of the Act, the party must
provide reasons why a shorter period of notice should be permitted.”
The issue of the requirements of Rule
8 of the Rules of the Court does not arise in relation to the
initial application, the matter
having not been prosecuted any
further. The issue does however arise in relation to the amended
Notice as will be seen later.
The enrolment of the matter on the
basis of the amended Notice of Motion:
The amended notice of
motion amended only the date of the hearing; otherwise the rest of
the contents thereof remained the same.
It would appear that the
reasons for the enrolment of the matter earlier than 28
th
July 2011 was because the respondent failed or refused to accede to
the request of the applicant to stay their strike action,
which was
to commence on 25
th
July 2011, pending the outcome of the
review application.
In opposing the confirmation of the
rule, the respondent contends that the Court was still faced with
having to determine the
issues which the Court was faced with when
considering whether to grant the interim relief and further that if
it was to be found
that the requirements of an interim relief on an
urgent basis was not satisfied, the Court should discharge the rule
nisi
. In this regard, the two points which the respondent
specifically emphasises concerned urgency and whether the matter was
properly
before the Court. In respect to whether the matter was
properly before the Court, the respondent contends that there was no
proper
service of the application on it.
The issue of what approach is to be
adopted on the return day of a rule
nisi
received attention recently in this
Court in the matter of
Oupa
Lucas Phakedi v Dr Kenneth Kaunda District Municipality and Others.
2
It was held in
that
case that it was trite that on the return date of the rule
nisi,
the Court will consider
all aspects raised by the parties including the issue of urgency.
The Court in arriving at that conclusion
relied on the decision in
SAFCOR Forwarding
(Johannesburg) (Pty) Ltd v National Transport Commission,
3
where the Appellant Division held
that:
“
Nor
am I impressed by the argument that the Judge issuing the rule might
be called upon to give a ruling on a matter of law which
would be
binding on the Judge who finally heard the matter, unless clearly
wrong. Very often legal rulings are inextricably bound
up with the
facts placed before the Court. Obviously in such a case a ruling at
the rule
nisi
stage
could not bind the Court finally hearing the matter on a more
broadly-based factual foundation
.
In some instances the ruling of law might transcend the particular
facts and be applicable both at the rule
nisi
and the final stages.”(My underlining)
The approach to be adopted on the
return day was also dealt with in
Cekeshe
and others v Premier, Eastern Cape, and Others.
4
The approach in that case was put by
van Zyl J
as follows
“
The
Court hearing the application thereupon granted the rule
nisi
to
which I have referred to hereinbefore and gave the applicants leave
to bring the application in accordance with the provisions
of Rule
6(12)(a)
of
the Rules of this Court. The fact that such leave was granted by the
Court hearing the application for the issuing of the rule
nisi
does
not in my view in any way preclude me from reconsidering the question
of urgency at this stage, as the respondents have now
had an
opportunity to fully deal therewith.”
In applying the above principle, it
means that in the present instance, the issue before this Court
entails having to determine
all the issues raised before it
including those raised during the application for the rule
nisi
.
This includes
inter alia
the issue of urgency and whether the
matter was properly before the Court.
The key question as far as the issue
of service is concerned, is whether the applicant has complied with
the requirements of the
rules 4(2) (b) of the Rules of the Court. If
found that the applicant has indeed failed to comply with the
provisions of that
rule, then it would mean that the interim order
would have been made in error because the Court would not have been
aware of
this fatal defect or irregularity. Rule 4(2)(b) of the
Rules of this Court reads as follows:
“
(2)
Service is proved in court in any one of the following ways-
(a).....
(b)
if service was
effected by fax, by an affidavit of the person who effected service,
which must provide proof of the correct fax
number and confirmation
that the whole of the transmission was completed
.”
The applicant does not deal with this
issue in the heads of argument. The issue was also not dealt with in
any detail by Counsel
for the applicant during the hearing. The
issue is however dealt with in the affidavit in support of the
service, which was deposed
to by Ms Maganbhai-Mooloo of the
attorneys of record of the applicant wherein it is stated that:
“
3.
On the 22
nd
July 2011 I served the Urgent Application: Notice of Motion and
Founding Affidavit with annexures thereto on the First Respondent
by
way of personal service.
4.
On the 22
nd
July 2011 I served the Urgent Application:
Notice of Motion and Founding Affidavit with annexures thereto on the
Second Respondent
by way of personal service.
5.
On the 22
nd
July 2011 I served the Urgent Application:
Notice of Motion and founding affidavits with annexures thereto on
the Third Respondent
by way of facsimile. Appended hereto as annexure
“
MMM1
” is the transmission slip and I confirm that
the documents so faxed contain the said Urgent Application and its
annexure.
6.
On the 22
nd
July 2011 I served the Urgent Application:
Notice of Motion and founding affidavit with annexures thereto on the
Third Respondent
by way of electronic mail. Appended hereto is
annexure “
MMM2”
is proved that the document so
e-mailed contained the said Urgent Application and its annexures.”
Paragraphs 3 and 4 quoted above say
that the notice of motion and the founding affidavits with annexures
were served on the third
respondent. There are two main bundles in
the Court file; paginated and the unpaginated. The amended index
together with the
amended notice has the Court’s stamp
reflecting 2011/09/07. The unpaginated bundle the front page of
which has the amended
notice of motion has the Court’s stamp
dated as 2011/07/22.
It has to be pointed out that the
original notice of motion and the amended notice of motion are the
same in both bundles. It
is important to note that both bundles
reflect that the amended Notice of Motion was served on the CCMA and
the Commissioner.
The CCMA’s date stamp is not very clear as
far as the date of service is concerned but would appear to be 22
nd
July 2011. The same applies in as far as the original notice of
motion is concerned.
There is however no evidence in both
bundles indicating that the documents in the two bundles were served
on the respondent personally.
Paragraph 5 of the affidavit in
support of the service says that the papers were served on the third
respondent by facsimile.
In support of this allegation, the
applicant relies on annexure “MMM1” Annexure MMM1 is a
facsimile delivery report
which reflects that the amended notice of
motion (LT339) was successfully transmitted to the fax number 086
6940 496. More importantly
the report reflects that the transmission
took place on “2011/7/22 02:29:04PM” and that “items
sent 5”,
namely 5 pages were transmitted.
Contrary to what is stated in the
affidavit in support of service, the evidence from the fax
transmission report reflects that
in all probabilities the only
document which was faxed to the respondent was the amended notice of
motion together with the covering
page making it 5 pages.
Annexure MMM2 is an e-mail which was
sent to the respondent by the deponent to the affidavit in support
of service which reads
as follows:
“
Manisha
Maganbhai-Mooloo
sapwu@yahoo.com
Subject:
NOTICE OF MOTION
Attachment:
Notice of Motion- amended 22/07/2011pdf;
Notice
of Motion as annexures pdf
Delivery
Report Labour Court. PDF
Important:
Hi
1.
22 July 2011 SA/11 transmit herewith copies of the following
documents: 1. Notice of Motion. Kindly take note that this Notice
of
Motion is also faxed to fax number 086 6940 496 and we are currently
awaiting proof of transmission.
2.
Deliver report as proof that the Notice of Motion was faxed to the
Labour Court.
3.
Amended Notice of Motion. Kindly note that the Amended of Notice of
Motion was faxed to fax number 086 6940 496 on 22 July 2011
at 2:29
PM and we are in a possession of the delivery report.
4.
Please note further that the application will be heard on
Saturday,
23 July 2011at 13h00.
”
It should be noted that our Rules do
not provide for service by way of e-mails. However even if that was
the case, this would
not have assisted the case of the applicant.
There is no proof in terms of the e-mail as to how many pages of the
transmitted
attachments were sent to the respondent.
Following the above discussion, I am
of the view that the applicant has failed to show that there was
proper compliance with the
provisions of rule 4(2) (b) of the Rules
of the Court and further that the probabilities strongly supports
the view that there
was no proper service of the papers on the
respondent. The consequence of failure to prove that proper service
was effected on
the respondent is fatal. Accordingly, the applicant
was not entitled to the interim order for that reason alone. There
is no
evidence in the applicant’s papers indicating why it was
never brought to the attention of the Court on the day the urgent
application was moved that annexure MMM1 reflects only five pages
whereas the application itself consisted of more than fifty
pages.
As indicated above, this defect could not in terms of the rules be
remedied by the e-mail which was sent to the respondent
as there is
no provision for service by way of an e-mail. The case of the
applicant would still however be unsustainable in as
far as this
issue is concerned because there is no indication in the e-mail as
to how many pages of the attached PDF files were
e-mailed through to
the respondent.
The case of the applicant would still
stand to fail even if it was to be found that there was proper
service on the respondent,
for the following reasons: failure to
comply with the provision of section 68 (2) and failure to show that
the applicant had
a clear right on the return day not to be faced
with a strike action by members of the respondent. Section 68(2) of
the LRA provides:
“
68 Strike
or lock-out not in compliance with this Act
(2)
The Labour Court may not grant any order in terms of subsection (1)
(a)
unless
48 hours' notice of the application has been given to the respondent:
However, the Court may permit a shorter period of notice
if-
(a)
the
applicant has given written notice to the respondent of the
applicant's intention to apply for the granting of an order;
(b)
the
respondent has been given a reasonable opportunity to be heard before
a decision concerning that application is taken;
and
(c)
the
applicant has shown good cause why a period shorter than 48 hours
should be permitted.”
In my view, the reasons for bringing
the application on a notice less than 24 hours are not satisfactory.
In fact the proper analysis
of the applicant’s explanation
reveals that the applicant in its founding and supplementary
affidavits deals with the broader
issue of urgency and not with why
the matter was enrolled on less than 48 hours notice.
The starting point in considering
whether the applicant has shown that it has a clear right on the
return day on this matter has
to be considered in the context of
prayers in the notice of motion. The prayers in the notice of motion
read as follows:
“
1.1
The certificate of outcome issued by the First Respondent on the 19
th
July 2011 under case number GAJB11574-11 OF The Second Respondent in
terms of which a dispute concerning the unilateral change
to the
terms and conditions between the Applicant and the Third Respondent
remained unresolved, be reviewed and set aside;
1.2
That it be declared that any industrial action that may be embarked
upon by the Third Respondent on the strength of the certificate
of
outcome, will be unprotected;
1.3
That any industrial action by the Third Respondent on the strength of
the certificate of outcome, be stayed pending the final
outcome of
this application.
1.4
That the dispute be remitted to the CCMA to be considered de novo.”
In the present instance, for the
applicant to succeed, it has to show that it has a right not to be
faced with an unprotected
or unlawful strike by the members of the
respondent. The applicant has to do that by showing that the
intended strike does not
comply with both the procedural and/or
substantive requirements for a protected strike as set out in the
LRA. The procedural
requirements for a protected strike are set out
in section 64 of the LRA
5
which essentially requires that the
issue in dispute should have been referred to the bargaining council
or the CCMA or whichever
of the institution has the jurisdiction.
The second aspect of the procedural requirement is that the
employees are not entitled
to embark on a strike until a certificate
of outcome has been issued by the Commissioner confirming that the
dispute remains
unresolved after conciliation or until 30 days have
lapsed since the date of the referral.
The substantive limitation to the
right to strike is governed by the provisions of section 65 of the
LRA
6
.
In terms of the substantive limitation, the employees are prohibited
from embarking on a strike action if:
1 Employees are bound by a collective
agreement prohibiting striking over the dispute in issue.
2 Collective agreement requires the
issue in dispute to be arbitrated upon.
3 The issue in dispute can be
arbitrated or litigated upon in Court.
4 Employees are engaged in essential
or maintenance services.
5 The work stoppage does not comply
with the definition of a strike in terms of the LRA.
The status of the certificate of
outcome has received attention in a number of cases in the Labour
and in the Labour Appeal Court.
Although the status of the
certificate of outcome was dealt with in the context of unfair
dismissal cases, in my view the same
principle applies in cases
involving disputes of mutual interests. In this respect, I align
myself with what Van Niekerk J, in
Bombardier
Transportation (Pty) Ltd v Mtiya NO and Others,
7
when he said:
“
In
other words, a certificate of outcome is no more than a document
issued by a commissioner stating that on a particular date,
a dispute
referred to the CCMA for conciliation remained unresolved. It does
not confer jurisdiction on the CCMA to do anything
that the CCMA is
not empowered to do, nor does it preclude the CCMA from exercising
any of its statutory powers. In short, a certificate
of outcome has
nothing to do with jurisdiction. If a party wishes to challenge the
CCMA’s jurisdiction to deal with an unfair
dismissal dispute,
it may do so, whether or not a certificate of outcome has been
issued. Jurisdiction is not granted or afforded
by a CCMA
commissioner issuing a certificate of outcome. Jurisdiction either
exists as a fact or it does not.”
In the present matter, the cause of
action is based on the provisions of section 145 and not section 65
of the LRA. There is no
provision in section 145 that limits or
restrains a right to strike
8
.
As far as the procedural requirements are concerned, there is no
doubt on the facts before this Court that the respondent complied
with the requirements of section 64 in that the dispute was referred
to the CCMA for conciliation, and that the Commissioner
after
attempting conciliation issued a certificate of outcome indicating
that the matter remains unresolved. After receipt of
the certificate
of outcome, the respondent issued the applicant with the notice of
intention to embark on the strike action which
was supposed to have
commenced 25
th
July 2011.
As concerning the costs, the facts
and the circumstances of this case requires the Court to show its
disapproval of the conduct
of the applicant regarding the manner in
which it prosecuted these preceding.
It was for the above reasons that I
made the order dismissing the applicant’s application,
discharging the rule
nisi
and ordered the applicant to pay
the costs on an attorney and client basis
.
_____________________
Molahlehi J
Judge of the Labour Court of South
Africa
Appearances:
For the applicant: Adv M. Habedi
Instructed by: Jerry Nkeli Attorneys
For the respondent: Adv. C. Prinsloo
Instructed by: Adams and Adams
Attorneys
1
Act
66 of 1995.
2
J1461/11.
3
1982(3)
SA 654(A) at 676 C-E.
4
1998
(4) SA 935
at 947 E-G.
5
Section
64 reads as follows:
64 Right to
strike and recourse to lock-out.
(1) Every
employee
has the right to
strike
and every employer has recourse to
lock- out
if-
(a)
the
issue
in
dispute
has been referred to a
council
or to the Commission as required by
this Act
, and-
(i) a certificate
stating that the
dispute
remains unresolved has been issued;
or
(ii) a period of 30
days, or any extension of that period agreed to between the parties
to the
dispute
, has elapsed since the referral was received
by the
council
or the Commission; and after that-
(b)
in the
case of a proposed
strike
, at least 48 hours' notice of the
commencement of the
strike
, in writing, has been given to the
employer, unless-
(i) the issue in
dispute
relates to a
collective agreement
to be
concluded in a
council
, in which case, notice must have been
given to that
council
; or
(ii) the employer
is a member of an
employers' organisation
that is a party to
the
dispute
, in which case, notice must have been given to
that
employers' organisation
; or
(c)
in the
case of a proposed
lock-out
, at least 48 hours' notice of the
commencement of the lock-out, in writing, has been given to any
trade union
that is a party to the
dispute
, or, if
there is no such
trade union
, to the
employees
, unless
the
issue in dispute
relates to a
collective agreement
to be concluded in a
council
, in which case, notice must have
been given to that
council
; or
(d)
in the
case of a proposed
strike
or
lock-out
where the State
is the employer, at least seven days' notice of the commencement of
the
strike
or
lock-out
has been given to the parties
contemplated in paragraphs
(b)
and
(c)
.
(2) If the
issue in
dispute
concerns a refusal to bargain, an advisory award must
have been made in terms of section 135 (3)
(c)
before notice
is given in terms of subsection (1)
(b)
or
(c)
. A
refusal to bargain includes-
(a)
a
refusal-
(i) to recognise a
trade union
as a collective bargaining agent; or
(ii) to agree to
establish a
bargaining council
;
(b)
a
withdrawal of recognition of a collective bargaining agent;
(c)
a
resignation of a party from a
bargaining council
;
(d)
a
dispute
about-
(i) appropriate
bargaining units;
(ii) appropriate
bargaining levels; or
(iii) bargaining
subjects.
(3) The requirements of
subsection (1) do not apply to a
strike
or a
lock-out
if-
(a)
the
parties to the
dispute
are members of a
council
, and
the
dispute
has been dealt with by that
council
in
accordance with its constitution;
(b)
the
strike
or
lock-out
conforms with the
procedures in a
collective
agreement
;
(c)
the
employees
strike
in
response to a
lock-out
by their employer that
does not comply with the provisions of this Chapter;
(d)
the
employer locks out its
employees
in response to their
taking part in a
strike
that does not conform
with the provisions of this Chapter; or
(e)
the
employer fails to comply with the requirements of subsections (4)
and (5).
(4) Any
employee
who or any
trade
union
that
refers a
dispute
about a unilateral
change to terms and conditions of employment to a
council
or the Commission in
terms of subsection (1)
(a)
may, in the referral,
and for the period referred to in subsection (1)
(a)
-
(a)
require
the employer not to implement unilaterally the change to terms and
conditions of employment; or
(b)
if
the employer has already implemented the change unilaterally,
require the employer to restore the terms and conditions of
employment that applied before the change.
(5) The employer must
comply with a requirement in terms of subsection (4) within 48 hours
of
service
of the referral on the
employer.
6
The
limitation under section 65 cannot be trumped by compliance with
section 64
.
7
(2010)
8 BLLR 840
(LC) at para 15.
8
Section
145 reads as follows:
Review of arbitration awards
(1) Any party to a
dispute who alleges a defect in any arbitration proceedings under
the auspices of the Commission may apply
to the Labour Court for an
order setting aside the arbitration award-
(a) within six weeks of
the date that the award was served on the applicant, unless the
alleged defect involves corruption; or
(b) if the alleged
defect involves corruption, within six weeks of the date that the
applicant discovers the corruption.
(2) A defect referred to
in subsection (1), means-
(a) that the
commissioner-
(i) committed misconduct
in relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross
irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the
commissioner's powers; or
(b) that an award has
been improperly obtained.
(3) The Labour Court may
stay the enforcement of the award pending its decision.
(4) If the award is set
aside, the Labour Court may-
(a) determine the
dispute in the manner it considers appropriate; or
(b) make any order it
considers appropriate about the procedures to be followed to
determine the dispute.
17