About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 37
|
|
Mlaudzi v Metro South Towing CC (J1007/15) [2017] ZALCJHB 37 (8 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case No: J1007/15
In
the matter between:
WITNESS
MLAUDZI
Applicant
and
METRO
SOUTH TOWING CC
Respondent
Heard:
20 January
2017
Delivered:
20 January 2017
Edited:
08 February 2017
Summary:
Once an arbitration award has been certified in terms of section 143
– no need for section 158(1)(c) order
– as this amounts
to duplication and delay in enforcing the arbitration award –
Both employer and employee are required
to comply with the terms of
an arbitration award. Section 158(1)(c) applications sometimes
counteract the purpose of the
Labour Relations Act 66 of 1995
.
EX
TEMPORE
JUDGMENT
MABASO,
AJ
Introduction
and Background
[1]
Mr
Witness Mlaudzi (the employee) was employed by Metro South Towing CC
(the employer) until he was dismissed on 02 February 2015.
Following
his dismissal, he referred an unfair dismissal dispute to the Dispute
Resolution Centre for the Motor Industry Bargaining
Council in
Randburg. Following its non resolution at the conciliation
stage, the dispute proceeded to arbitration, before
Commissioner SI
Bhabha (the Commissioner).
[2]
Subsequent
to the finalisation of the arbitration, the Commissioner issued an
arbitration award under the Bargaining Council’s
case number
MINT44482N, dated 15 April 2015, and ruled that the dismissal of the
employee by the employer was both procedurally
and substantively
unfair. He, consequently, ordered that the employer should pay the
employee an amount of R15 600, which
is equivalent to three
months of his salary, and that he must be reinstated to his position
without any loss of benefits as from
01 May 2015. Further,
the employee was ordered to report for duty on 01 May 2015.
[3]
The
employee in his affidavit confirmed that the employer did not attend
the arbitration, therefore the default arbitration award
was issued.
He is also deliberating on the contents of this arbitration award. He
further states that on 04 May 2015 he reported
for duty, as the
reason for him to report for duty on this date was that 01 May 2015
was a public holiday. And he spoke to one
Ms
Annemarie
of the employer, who was presented with a copy of this arbitration
award and Ms Annemarie informed the employee that she
would consult
with their attorney. Therefore, the employer failed and/or refused to
comply with the terms of the arbitration award.
Consequently, the
employee obviously had to leave the premises of the employer. I am
advised that to date the employee has not
been paid a salary by the
employer, and has not been reinstated. This is a dual application –
made in terms of
section 158(1)(c)
of the
Labour Relations Act
[1
]
and section 77(3) of the Basic Conditions of Employment Act
[2]
.
Section
158(1)(c) Application
[4]
The
employee wants the arbitration award to be made an order of court,
and he decided to approach this Court by way of notice. The
Labour
Relations Amendment Act, 2014
[3]
has introduced important new developments to the LRA, more pertinent
to this case are the amended provisions in section 143. Section
143
provides, among other things, that an arbitration award issued by a
commissioner is final and binding and it can be enforced
once it has
been certified by a director of the Commission for Conciliation,
Mediation and Arbitration (CCMA).
[4]
Subsection
(4)
provides that if the other party fails to comply with an arbitration
award which has been certified in terms of subsection (3)
which
orders the performance of an act that— “…
any
other party to the award may, without further order, enforce it by
way of contempt proceedings instituted in the Labour Court
.”
In reading this provision, it is clear that there is no need to
approach this Court in terms of section 158(1)(c)
if the
arbitration award has been certified. In this matter, it has been
stated that the arbitration award has not been certified
as the
employee was not certain as to whether a CCMA or Bargaining Council
had to be approached for the certification since the
award was issued
by the Bargaining Council.
[5]
Section
158(1)(c) says: “
That
the Labour Court may… make any arbitration award …an
order of court
”.
The word “
any
”
thereto is not defined in the LRA. Therefore, it is normal that
parties will always assume, correctly so, that this Court
can make
any arbitration award an order. The amendment as mentioned earlier
came into effect on 01 January 2014, before this dispute
was referred
to the Bargaining Council. The explanatory memorandum thereto which,
among other things, provides that—
“
Amendments
to this section are intended to further streamline the mechanisms for
enforcing arbitration awards of the Commission
and to make these
mechanisms more effective and accessible.”
It
further states that—
“…
Secondly,
in the case of awards, such reinstatement which are enforced by
contempt proceedings in the Labour Court, the need to
have an
arbitration award made an order of the Labour Court before contempt
proceedings can be commenced is
removed
.”
(Emphasis added.)
[6]
It
indicates that there is no need for applications of this nature
(section 158(1) (c)). It will be remiss of me not to
mention the recent judgment of the Constitutional Court which deals
with the issue of prescription of an arbitration award,
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and
Others
[5]
decided
on 15 December 2016. As much as it deals with the prescription
aspect, it accentuated on the mechanism to enforce arbitration
awards, as it held that there are two ways to which an award may be
enforced; namely: section 143 route and the other route will
be
section 158(1)(c) of LRA.
[6]
[7]
Taking
into account
Myathaza
’s
judgment, even if one were to doubt the relevance of section
158(1)(c), it is clear that section 158(1)(c) is still applicable
(despite the amendment mentioned above). However, there is no need
for parties to approach this Court in terms of this section
once an
award has been certified, but the Court cannot just dismiss section
158(1)(c) application on the basis that it has been
certified. This
Constitutional Court judgment also emphasises the point of speedy
resolution of employment law-related matters.
Moreover, its paragraph
50 reads thus:
“…
Furthermore,
the LRA scheme reveals shorter periods for the enforcement of awards.
A party in whose favour an award was made must
enforce it without
further delay, unless the party against whom the award was issued
challenges it on review.”
[8]
Given
the authorities aforementioned; the purpose of the LRA; and that when
reading a section in a statute, you need to read the
entire Act to
understand the meaning of such section; especially if there is some
ambiguity in such section. I must admit that
one might be tempted to
conclude that the word “
any”,
in section 158(1)(c), taking into account the purpose of the LRA and
other authorities, will have to be revisited by the legislature,
maybe being specific as to whether, is section 158(1)(c) route still
necessary, in respect of making an arbitration award issued
in terms
of section 138 of the LRA, an order of the Labour Court if there is
no pending review application against such award.
[9]
This Court, back in 2011, in the matter of
SATAWU
obo Phakathi v Ghekko Services SA (Pty) Ltd and Others
[7]
,
Basson J held that section 158(1)(c) applications are not a
prerequisite for contempt proceedings.
[8]
Once a party is armed with a certified award, such party has a right
in approaching this Court by way of contempt application.
Therefore,
section 143 (and
Ghekko’s
matter) is authoritative, in that the only requirement is for a party
to certify the arbitration award. Despite all of these, in
respect of
section 158(1)(c), I conclude that the applicant has made a proper
case in support of this application, meaning, the
employee is granted
prayer 1.1. of the notice of motion.
Section
77 of the Basic Conditions of Employment Act
[10]
This Court has jurisdiction in terms of section 77(3) of the BCEA to
hear an application where an employee seeks an order directing
his
employer to pay him outstanding salary. The Labour Appeal Court (LAC)
in
Coca-Cola
Sabco (Pty) Ltd v Van Wyk
[9]
shed some light regarding confusion in respect of whether a party has
to approach a Court or the Registrar of this Court in order
to take
steps to claim outstanding salary from their employers where an award
had been issued in respect of reinstatement. The
LAC had to deal with
the following question: What is the effect of a reinstatement order?
It indicated that the effect of the reinstatement
order is to revive
the contract of employment which existed between the parties at the
time of dismissal.
[10]
And it
further stated that—
“
Ordinarily
an employer that complies with an order of retrospective
reinstatement and back pay would not only pay the back pay but
also
the remuneration that the employee was entitled to between the date
of the order and the implementation date,
if
the employee tendered his services during that period
.”
[11]
(Emphasis added.)
[11]
Taking into account this authority, I am satisfied that the employee
did report for duty as he has indicated in his affidavit.
In
Coca-Cola Sabco
the LAC further stated that—
“
Since the
LRA does not cater for relief between the date of the award and the
date of implementation, how then should be reinstated
employee
recover that money if he tendered his services, during that
period?”
[12]
As
I have indicated that this judgment states clearly that the
reinstatement order revives the employment relationship that existed
at the time of dismissal. And what is required concerning this the
LAC said:
“
She/he is
therefore entitled to payment in terms of a contract of employment.
The claim is, therefore, a contractual one wherein
the employee would
have to set out sufficient facts to justify the right or entitlement
to judicial redress. The employee will
among other things have to
prove that the contract of employment is extant; that she or he
tendered his or her labour in terms
thereof and that the employer
refuses or is unwilling to pay him or her in terms of that contract.
The employer, on the other hand,
would have all the contractual
defences at her or his disposal.”
[13]
[12]
My view about this paragraph is that an employer has a right to raise
any defence, for example, to say that the employee did
not comply
with the terms of the award by reporting for duty. And obviously,
under those circumstances, that will be a whole new
ball game.
However, in this case, it is clear that the employee did report for
duty and he was not reinstated as per the terms
of the arbitration
award. Instead, Ms Annemarie said: “
I
will consult with my lawyers”
.
And to date, I am advised that the employee has not been paid. And
then, under those circumstances, I am satisfied that a case
has been
made in terms of prayer 1.2 of the notice of motion.
[13]
I requested the counsel for the applicant to prepare a draft order. I
have looked at the draft order which clarifies the issue
of the total
amount owed to the employee by the employer. Paragraph 3 of the
arbitration award is very clear as it says an amount
of money that he
was earning per month is R5 200. And then calculating these
amounts to the end of December 2016, it
amounts to R98 800.
Under those circumstances, I am inclined to make the draft order an
order of this Court.
[14]
In respect of costs, the counsel for employee decided not to pursue
the issue of costs.
Order
[15]
In the premises, I make the following order as per draft order marked
“x”:
1.
The arbitration award
under case number MINT 44485N, dated 17 April 2015 and
issued by Commissioner S.I Bhabha under the
auspices of the Dispute
Resolution Centre for the Motor Industry Bargaining Council, is
herein made an order of this Court in terms
of section 158(1)(c) of
the Labour Relations Act 66 of 1995;
2.
The Respondent is
ordered to pay the Applicant further remuneration from 01 May 2015 to
31 December 2016 in the total of R98 800.00
(Ninety Eighty Thousand
Eight Hundred Rand Only);
3.
Interest
at the prescribed rate on the R98 800.00 (Ninety Eighty Thousand
Eight Hundred Rand Only), from the date of this order.
_______________________
S Mabaso
Acting Judge of the
Labour Court of South Africa
Appearances
For
the Applicants:
C Britz
Instructed
by:
Narain Attorneys
For
the Respondent:
No Appearance
[1]
66 of 1995 (LRA),
(as amended).
[2]
75 of 1997.
Section 77 delineates the jurisdiction of the Labour Court and
subsection (3) provides:
“
(3)
The Labour Court has concurrent jurisdiction with the civil courts
to hear and determine
any matter concerning a contract of
employment, irrespective of whether any basic condition of
employment constitutes a term
of that contract.”
[3]
6
of 2014. See section 20 of this Act which amended section 143
of the LRA.
[4]
See section 143 (1) and (3) of the
LRA.
[5]
[2016] ZACC 49.
(
Myathaza
)
[6]
Myathaza
id
at paras 24-6.
[7]
(2011) 32 ILJ 1728
(LC). (
Ghekko
Services
)
[8]
Id at para 19.
[9]
[2015] 8 BLLR 774
(LAC); (2015) 36 ILJ 2013 (LAC). (
Coca-Cola
Sabco
)
[10]
Id at para 16.
[11]
Id at para 18.
[12]
Id at para 19.
[13]
Id at para 24.