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[2015] ZALCCT 7
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G-Ways CMT Manufacturing (Pty) Ltd v National Bargaining Council for the Clothing Manufacturing Industry (Western Cape Sub-Chamber) and Others (C942/2013) [2015] ZALCCT 7 (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
C942/2013
DATE:
23 JANUARY 2015
In
the matter between:
G-WAYS CMT
MANUFACTURING (PTY)
LTD
...........................................
Applicant
And
NATIONAL
BARGAINING COUNCIL FOR THE
CLOTHING
MANUFACTURING INDUSTRY
(WESTERN CAPE
SUB-CHAMBER)
.............................................
First
Respondent
STEPHEN
BHANA
.....................................................................
Second
Respondent
SACTWU OBO 58
MEMBERS
.......................................................
Third
Respondent
Date
heard: 8 August 2014
Delivered:
23 January 2013
JUDGMENT
RABKIN-NAICKER
J
[1] In this
unopposed application, the applicant seeks
inter alia
the
following relief:
“
1.
Reviewing and correcting and/or setting aside, in terms of the
provisions of section 145 read with 158 of the
Labour Relations Act
of 1995
, the arbitration award handed down by the second respondent
in his capacity as a commissioner of the first respondent in the
matter
between SACTWU obo 58 employees v Greenway CMT Manufacturing
cc & Gway (case number CCCA 35 – 13) and substituting the
award to read that Greenways CMT Manufacturing cc is the sole
respondent in the matter;
2.
In the alternative to prayer one above, reviewing and correcting
and/or setting aside the rescission ruling handed down by the
second
respondent in the matter between SACTWU obo 58 employees v Greenways
CMT Manufacturing cc & Gways (CCCA 35 – 13)
and
substituting/varying the award to read that Greenways CMT
Manufacturing CC is the sole respondent in the matter.
3.
The alternative to prayer 2 above, directing that the rescission
ruling issued by the second respondent under case number CCA35-13
be
reviewed and set aside and that the application for rescission be
remitted to the first respondent to be heard de novo before
a
Commissioner other than the second respondent;”
[2] The applicant
has brought the review application out of time and seeks condonation
for the late referral. It avers that the
reason for the delay was the
necessity to wait for the issuing of the rescission ruling. The
ruling is dated 28 October 2013. The
notice of motion appears to have
been filed on the 6 December 2013. The delay is not excessive and I
therefore grant condonation
and entertain the review application.
[3] The applicant
wishes to substitute a close corporation, Greenways CMT Manufacturing
CC as the sole respondent liable for paying
compensation to the third
respondents. It does so while averring in its papers that the CC in
question was finally liquidated on
26 March 2013. In fact, a look at
the annexure to the founding affidavit, which comprises a final order
in the Magistrates Court
for the district of Cape Town, reveals that
a provisional liquidation order was granted on 29 May 2013 and only
made final on 26
June 2013.
[4] In short,
this application has been brought in order to avoid liability for the
six months compensation that was ordered to
be paid to the third
respondents for their unfair dismissal. The applicant did not attend
at the conciliation of the unfair
dismissal dispute, or at the
arbitration proceedings. However, in the award arising from the
default arbitration proceedings, it
was joined as a party thereto,
albeit in the name of ‘Gways’.
[5] The applicant
then proceeded to apply for rescission of the award and the
ruling that ensued is enlightening. The second
respondent states in
his ruling as follows:
“
Ms
Greenway submitted that she was an employee of the first respondent
Greenways CMT CC for many years and when first respondent
had
financial trouble, she opened her own business Gways (Pty)Ltd (sic).
She stated that Gways started operating in May 2013 and
referred to
her supporting documentation as proof. It was further her submission
that Gways had no affiliation to Greenways and
had not employed or
dismissed the applicants. She conceded that Gways operates from the
same premises as Greenways.
Greenway’s
supporting documentation included a bank statement for her company.
She alleged that she started operating from
mid-May 2013 yet her bank
statement is for the period 14 February 2013 to March 2013. It
includes a line item for labour and payroll.
Greenway’s
submissions are therefore not truthful. In addition, it is obvious
that there is a family connection between Greenway
and the owner of
Greenways CMT, apparently mother and son. I had also taken cognizance
of the fact that Greenway is 79 years and
I find it highly improbable
that anyone of that age would start a new business. Greenway admitted
that she had employed some of
Greenways’ employees, but failed
to explain how she did this and whether she took over Greenways
contracts etc. The documentation
submitted shows the entity to be
G-Ways CMT Manufacturing Pty Ltd, and not Gways (Pty) Ltd as Greenway
claimed. It must also be
noted that there is no supporting papers
from the first respondent.
The
applicant’s submission is fraught with inconsistencies and
lacks sufficient details to convince me that is entirely a
separate
entity. The application must therefore fail.
It
is also noted that second respondent was joined as ‘G ways’.
It is clear from this application that the correct legal
entity was
not properly cited. I therefore substitute Gways (as noted in the
award) with G- ways CMT Manufacturing (Pty) Ltd.
Ruling:
The
application for rescission is declined.”
[6] In the
arbitration award sought to be rescinded, the first respondent had
recorded the events leading up to the dismissals as
follows:
“
4.
Christine Johannes testified for the applicants and stated that on 24
April 2013, the owner, Mr Greenways, called all the staff
to a
meeting where he alleged that some people were trying to liquidate
the company. He added that he was fighting these attempts
and that
staff should not worry about their jobs. On 26 April, Greenways
called another meeting when he said he had decided to
liquidate the
company at that instant. He told them to collect the termination
cards on 29 April.
5. They duly
collected their cards on the given date and their UIF 1-19 forms
reflected the reason for termination as insolvency/liquidation.
They
were not shown or given any proof of the liquidation. Johannes added
that on 27 April, Greenways called her and accused her
of organising
a toyi-toyi for 29 April, which she denied.
6. She visited
the company premises on 4 June 2013 to collect documentation. The
company was operating under a new name. G-ways
and she saw previous
colleagues of theirs (supervisors and mechanics, amongst others)
still working there. The respondent had employed
about 110 workers on
20 April 2013.
7. Sandy Adams
testified for the applicants and corroborated Johannes’ version
in large. She added that only 60 of the 110
employees were dismissed
and the rest are still employed by the respondent, albeit under a
different name. On 29
th
April the factory was still
operating and she also saw the cutting room manager working there.
8. Macebe added
that there was no record of the liquidation on 26 April. A
provisional order was only granted on 26 June 2013.”
[7] It is
submitted on behalf of the applicant that the rescission ruling is
not one that a reasonable decision-maker faced with
the same facts
and evidence could reach, that the second respondent unduly joined
the applicant as a party to the arbitration proceedings,
and
unreasonably refused to rescind the award on application. It is also
further submitted that the second respondent seriously
erred in
finding that the applicant should be joined without there being any
application by the interested party to do so.
[8] First, a
consideration of the rescission ruling record reflects that the
second respondent’s findings are entirely reasonable.
The
discrepancies between the documentation and the sworn affidavit by Ms
Greenway are glaring. As is that between her version
in her founding
affidavit in this matter, and the annexure containing the final
liquidation order as referred to above. Furthermore,
the arbitrator
was within his rights to vary the citation in the rescission ruling.
The variation was pursuant to information provided
by the applicant
and he was entitled to vary it
mero moto
as a look at the
First Respondent’s constitution reveals.
[9] The applicant
has failed to convince this court of its bona fides, which has been
sorely lacking throughout the history of this
dispute. In the
circumstances, I make the following order:
1. Condonation is
granted for the late filing of the review application.
2. The review
application is dismissed
Rabkin-Naicker
J
Judge
of the Labour Court
Appearances:
Applicant:
Carelse Khan Attorneys