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[2012] ZALCJHB 62
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Die Calvinia Lande BK v Department of Labour and Another (J409/10) [2012] ZALCJHB 62; (2013) 34 ILJ 359 (LC) (4 July 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
Reportable
Case no: J409/10
In the matter between:
DIE CALVINIA LANDE BK
…......................................................................................
Applicant
and
THE DEPARTMENT OF LABOUR
…...........................................................
First
Respondent
ABRAHAM HENDRIK PETRUS HANEKOM Second Respondent
Heard: 28 June 2012
Decided: 04 July 2012
Summary: Appeal to Labour Court in
terms of section 72 of the Basic Conditions of Employments Act, 1997.
Evidential material that
was before Director General and that before
court materially different. Circumstances of matter and statutory
construction of section
72 lead to consideration of matter put before
court. On that matter, which was not countered, appeal to be upheld
________________________________________________________________
JUDGMENT
BEATON, AJ
[1] This is an appeal brought by the
Applicant, a close corporation which conducts a butchery in the
Calvinia area in the Northern
Cape. The appeal is brought in terms of
section 72 of the Basic Conditions of Employment Act, 1997 (“BCEA”)
against
a decision of the Director-General of First Respondent to
confirm a compliance order issued by a labour inspector on 9
September
2009 directing Appellant to pay one of its employees,
Second Respondent, an amount of R94 910,31 in respect of
overtime worked
during the period April 2007 – January 2008.
[2] The appeal was brought outside the
21 day period contemplated in section 72(1) of the BCEA and exceeded
that time limit by about
24 days. The explanation for the delay is
the time it took for proper communication between the Appellant, its
labour consultant,
the attorney of record and the counsel briefed by
that attorney. Given that the attorneys is in Pretoria and the
Appellant in Calvinia
the explanation has the ring of truth to it and
was not questioned by the First Respondent which confined its
opposition to the
condonation application to an argument on the
prospects of success. In my view, that approach was the correct one
and the lot of
the condonation application should be determined by
whether there is a prospect of success in the appeal. This
necessarily involves
an assessment of the merits of the appeal
itself.
[3]
In my view the determination of the appeal turns on the question
whether the appeal contemplated in section 72 of the BCEA is
a wide
or a narrow one as set out in the judgment of Ngcobo AJP in
Staff
Association for the Motor and Related Industries v Motor Industry
Staff Association and Another
.
1
A wide appeal is one in which there is
a complete rehearing, with or without additional information or
evidence, whilst a narrow
appeal is one limited to the information
which was before the body from which the appeal comes and the sole
question for determination
is whether that body’s decision was
right or wrong.
[4] This question arises because the
representations submitted by the Appellant to the Director-General,
to which were annexed the
submissions it had made to the labour
inspector prior to the latter’s issuing a compliance order,
dealt in broad terms with
the nature of the relationship between
Appellant and Second Respondent and contained broadly stated denials
of Appellant’s
liability to pay overtime to Second Respondent.
The allegations which ultimately formed the basis of the compliance
order were
set out in a letter from the First Respondent to Appellant
dated 2 July 2009 and contained the number of hours overtime claimed
and the rate at which such should have been paid. In my view, despite
a submission to the contrary by Ms Prinsloo, who appeared
for
Appellant, the Inspector and Director-General were entitled to make
the orders they did on the material before them, subject
to one
proviso. Those orders were for overtime calculated on a monthly basis
over a period of 12 months. On the material submitted
by Second
Respondent to the Inspector he had only been employed for 10 months.
The amount for which the compliance order should
have been issued
should thus be reduced accordingly by 1/6
th
, even if the
appeal is approached as a narrow one.
[5] The submissions filed by the
Appellant in this Court give the matter an entirely different
complexion.
Those submissions, whilst concise as
is required by Rule 9(6) of the Rules of this Court, contain as
annexures time sheets and hand-written
extracts from log books
(Second Respondent was a driver) together with summaries of relevant
entries which show quite clearly that
Second Respondent was paid more
than he was due in respect of overtime. Mr Mashaba, who appeared for
the Respondents, did not submit
that the factual submissions of
Appellant to the Court were inaccurate.
[6]
The only reported authority dealing directly with the question of
whether an appeal in terms of section 72 of the BCEA is a
wide or a
narrow one is
Comtech
Networking Solutions CC v Director General of Department of Labour
and Another
.
2
The question was not decided and the
Court, per Pillay J stated that:
‘
The
circumstances of each case determine whether the appeal is most
effectively resolved if it is determined on the record or reheard
by
the Court or the Department of Labour’.
The Court went on to find that because
the appeal was against an administrative decision, it was permissible
to refer the matter
back to the Director-General.
[7] Whilst I do not necessarily agree
with the above line of reasoning as the question of a wide/narrow
appeal depends upon a proper
construction of the applicable statutory
provisions, it is unnecessary to decide the question since the
application of the test
propounded in the
Comtech
judgment and
a proper construction of the applicable statutory provisions lead to
same conclusion, being that the appeal in this
matter should be
approached as a wide one. On the approach set out in the
Comtech
judgment, the relevant circumstances in this matter are that:
The Inspector’s compliance
order was issued on 2 July 2009 and the current appeal heard almost
3 years later;
Justice would require, at the very
least, that the Director-General consider the comprehensive
representations made by Appellant
in this Court;
There has been no indication that the
factual allegations contained in the said representations are
inaccurate; and
The remittal of matter to the
Director-General will only further delay the matter;
I am of the view that the above
circumstances require that the appeal be approached as a wide one. As
indicated above, if regard
is had to the representations submitted to
this Court there was no underpayment of overtime.
[8] I turn now to consider the proper
construction of the applicable provisions in the BCEA.
The
Staff Association
matter
(
supra
) dealt with the nature of an appeal as contemplated
in section 111 of the Labour Relations Act, 1995 (“LRA”)
against
a decision of the Registrar of Labour Relations concerning
the registration, or de-registration of an employers’
organisation
or a trade union. That judgment thus interpreted a
different provision in a different statute so that no reliance,
other than
in relation to general principles articulated therein,
can be placed on it in construing the provisions of section 72 of
the
BCEA.
In
Ephraim v Bull Brand Foods
(Pty) Ltd
,
3
Van Niekerk J remarked as follows:
‘
The
BCEA clearly contemplates that this court has a general supervisory
function in the statutory scheme of enforcement (given its
appellate
functions in terms of section 72), that it should facilitate the
enforcement of orders made by the appropriate functionaries
(given
its powers to make compliance orders of court) and that it should
ultimately act to impose punishment for continued breaches
of the Act
(given the court’s powers to impose fines in terms of schedule
2 to the Act), the Act does not extend to this
court those functions
that are reserved for the labour inspectorate, and in particular, it
does not contemplate that this court
may grant orders that would
effectively amount to the compliance orders contemplated by section
69.’
The
“appellate functions” alluded to are clearly something
in addition to a review, for such a remedy is available
in any
event. Whilst there is a difference between a narrow appeal (which
deals with the merits of the decision) and a review
(which deals
with the way in which the decision is reached), that difference has
been further narrowed by the requirement of
rationality
contemplated in
section 6(2)(f)(ii)
of the
Promotion of
Administrative Justice Act, 2000
and as envisaged in the judgment
in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
.
4
Although that judgment dealt with
the rationality requirement in respect of arbitration awards made
by Commissioners and arbitrators
under the LRA, the principle
applies also to decisions made by the Director-General in terms of
section 71
of the BCEA. In my view giving the word “appeal”
where it is used in
section 72
of the BCEA the meaning of a narrow
appeal as defined in the
Staff
Association
matter will
give this Court so narrow a role in supervising the statutory
scheme of enforcement in the BCEA, that the provisions
of
section
72
would be rendered virtually meaningless. This could not have
been the intention of the legislature. I thus conclude that the
appeal contemplated in
section 72
of the BCEA is a wide appeal.
[9] First Respondent and the
Inspectors who made the compliance orders were carrying out their
statutory tasks
bona fide.
Accordingly, there is no basis upon
which to make a costs order against them.
I thus make the following order:
Condonation is granted for the late
filing of the appeal in this Court.
The appeal is upheld and the
compliance order of 2 July 2009 issued by the Regional Manager
against Appellant for the payment
of R94 910,31, as well as the
decision of the Director-General of Labour of 9 September 2009 to
uphold the compliance order,
are set aside.
There is no order as to costs.
_____________________
RG BEATON AJ
Acting Judge of the Labour Court
APPEARANCES:
For The Applicant: Adv: Prinsloo
(instructed by Vogel Malan Attorneys)
For The Respondent: Adv: M.G. Mashaba
(instructed by the State Attorney)
1
(1999)
20 ILJ 2552 (LAC) at para 18
.
2
(2010)
31 ILJ 600 (LC) at para 5.
3
(2010)
31 ILJ 951 (LC) at para 6.
4
(2007)
28 ILJ 2405 (CC).