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[2014] ZALCJHB 166
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National Education Health And Allied Workers Union and Others v Department Of Justice And Constitutional Development (J554/13) [2014] ZALCJHB 166 (8 May 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
REPORTABLE
CASE
NO: J 554/13
In
the matter between -
NATIONAL
EDUCATION HEALTH AND
ALLIED
WORKERS
UNION First
Applicant
MADIMETJA
CHARLES GALANE
Second
Applicant
And
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT Respondent
Heard: 31 March 2014
Delivered:
8
May 2014
Summary: Application
to make the arbitration award an order of the Court. The factors to
take into account on considering application
to make an arbitration
award an order of the Court. The Court is in doubt about validity of
the arbitration award. The respondent
filed review but failed to
apply for condonation for its late filing.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the applicant seeks to have the arbitration award made under the
auspices of the
General Public Service Sectoral Bargaining
Council (the bargaining council) under case number GPBC
2046/12, made an order
of the Court in terms of section 158(1) (c) of
the Labour Relations Act of 1995 (the LRA).
[2]
The applicant who was prior to his
dismissal employed by the respondent as the administrative clerk was
dismissed for fraud, theft
and four other acts of misconduct related
to gross negligence. Following his dismissal the applicant referred a
dispute concerning
an alleged unfair dismissal to the bargaining
council. The conciliation process having failed the matter was
referred to arbitration.
The arbitrator found the dismissal of
the applicant to have been both procedurally and substantively unfair
and ordered the respondent
to reinstate him.
[3]
The respondent has since filed an
application to review and set aside the arbitration award. It is
common cause that the review
application was filed late and that
respondent is still to file condonation for the same. The record of
the arbitration hearing
is also still to be filed.
[4]
As
indicated earlier this application is launched in terms of section
158(1) (c) of the LRA which empowers the Court to
make
any arbitration award or any settlement agreement an order of the
Court. It is trite that
Section
158(1) (c) of the LRA provides a mechanism through which a successful
party may enforce in the same manner as a judgment
or order of Court
the arbitration award. It is also a mechanism through which
enforcement of an arbitration award can be expedited.
It is for this
reason that the Court has generally adopted a policy that the
enforcement of arbitration awards should not be unduly
delayed.
[5]
In
considering whether to make an arbitration award an order the Court
has a discretion which it has to exercise judicially. In
general the
Court will lean towards readily making an arbitration award an order
of the Court to ensure that the arbitration award
does not hang but
rather that it is honoured. In this respect the Court in Mzulwininiv
Fedelity Cleaning
[1]
the Court
held that:
“
The
court will grant leave to enforce the award as a judgment unless
there is either a real ground for doubting the validity of
the award
or the award is not in a form in which it can be enforced as a
judgment.”
[6]
In this matter the arbitrator arrived at
the conclusion that the dismissal was unfair on the basis that the
respondent’s right
to institute disciplinary proceedings
against the applicant had prescribed in terms of the
Prescription Act
of 1969
. The arbitrator found that the right to subject the applicant
to discipline for the alleged misconduct had prescribed because the
respondent had failed to institute disciplinary proceedings within
the 60 days period from the time the applicant was suspended
as
provided for in Resolution 1 of 2003 of the Public service Bargaining
Council (the PSCBC). In this respect the arbitrator
had the
following to say:
“
5.2.9
If we take all of these circumstances into consideration, there can
be no doubt that, the respondent’s right to
institute
disciplinary hearing against the applicant was already terminated by
extinctive prescription when the 5
th
and 29
th
August 2011 disciplinary hearing was convened in that, a period of 3
years, at the time, had elapsed. Therefore, the respondent
convened a
disciplinary hearing at the time it was no longer actionable and
justiciable, and further at the time it was denied
access to the
disciplinary hearing against the applicant in respect of the alleged
charges, by operation of the law, re extinctive
his prescription,
following from
Prescription Act, as
were as by virtue of Clause 7 (2)
(C) Of Resolution 1 of 2003.
5.2.10 in the premises,
the respondent is deemed to have waived its right to dismiss the
applicant for the charges alleged.”
[7]
I
have serious doubt as to the application of the
Prescription Act to
the facts of this case. I also have doubt as to the waiver of the
right to discipline the applicant after the expiry of the 60
days.
The finding by the arbitrator does not seem in this respect to be in
line with the decision of this Court in
Lekabe
v
Minister:
Department of Justice and Constitutional Development
[2]
,
where the it was held that:
“
[17]
Turning to the specific issue in the present instance, in my view it
could never have been the intention of the parties that
clause 2.7(2)
(c) of the SMS Handbook should take away the right of an employer to
discipline an employee on the expiry of the
60 (sixty) days from the
date of suspension. In essence the case of the Applicant in the
present instance is that the right of
the Respondent to proceed with
the disciplinary hearing prescribed on the expiry of the 60 (sixty)
days from the date of his suspension.
[18]
In my view clause 2.7(2) (c) deals with suspension and not the
disciplinary action. There is nothing in this clause that says
an
employer would lose the right to discipline an employee on the expiry
of the 60 (sixty) days from the date of the suspension.
I have not
been able to find even a basis for implying the interpretation sought
by the Applicant or the one given by the Court
in Lovejoy Malambo. At
best, as I see it, the suspension falls away after the 60 (sixty)
days unless the chairperson of the disciplinary
hearing extends that
period.
[19]
The purpose of clause 2.7(2) (c), as I see it, is to address the
problem of protracted suspensions which demoralizes and unfairly
prejudice the suspended employee. It would appear that the mischief
which the parties sought to address with the provisions of
clause 7.2
was to deal with what Andre Van Niekerk J in Mosweu Paul Magotlhe v
The Member of the Executive Council for Agriculture
Conservation and
the
Environmental and Another soon to be
reported case number J2622/08, regarded as the tendency by certain
employers to:
‘…
regard
suspicion as a legitimate measure of first resort to the most
groundless suspicion of misconduct, or worst still, to view
suspicion
as a convenient mechanism to marginalise an employee who has fallen
from the favour.’
[19]
Thus the right of the employee in the event that the employer does
not uplift the suspension on the expiry of the 60 (sixty)
days is to
file an unfair labour practice claim or bring an application to have
an order directing the employer to uplift the suspension.
I need to
emphasize that in my view it could never have been the intention of
parties that the right to discipline by an employer
would fall away
on the expiring of the
60 (sixty) days.
[8]
In light of the above I am of the view that
in the circumstances of this case it would not be appropriate to
exercise my discretion
in favour making the arbitration award an
order of Court at this stage. I do however note with concern the
manner in which the
respondent has dealt with the matter since the
arbitration was issued. In this respect the review application was
filed late but
to date no condonation application has been filed and
there is also lack of clarity as concerning the filing of the record
of the
arbitration hearing.
[9]
In my view the better approach to adopt in
the circumstances of this case is stay these proceedings and place
the respondent under
strict time frames to comply with the rules.
Order
[10]
In the premises the following order is
made:
1.
The application to make the arbitration
award made under case number GPBC 2046/12, stands down
pending compliance by
the respondent with the following:
a.
Filing condonation for the late filing of
the condonation application.
b.
Filing condonation for the late filing of
the review application.
c.
Filing of the condonation for the late
filing of the records if necessary.
2.
The respondent shall file all the above
condonation applications within 14 (fourteen) days of date of this
order.
3.
Failure by the respondent shall entitle the
applicant to approach the Registrar and request that matter be
re-enrolled.
Molahlehi
J
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant: Mr K N Chaupe
Instructed
by: NEHAWU
For
the Respondent: Advocate Makoti
Instructed
by: State Attorney
[1]
[2000]
JOL 6338
(LC).
[2]
[2]
(2009)
30 ILJ 2444 (LC).