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[2017] ZALCJHB 201
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Autozone Holdings (Pty) Ltd t/a Autozone v Moolman and Others (JR649/15) [2017] ZALCJHB 201 (26 May 2017)
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case no: JR 649/15
In the matter
between
AUTOZONE HOLDINGS (PTY) LTD T/A
Applicant
AUTOZONE
and
JOHAN
MOOLMAN
First Respondent
DISPUTE RESOLUTION CENTRE FOR THE
MOTOR INDUSTRY
BARGAINING COUNSEL
Second
Respondent
JANINE
JOHNSON
Third Respondent
Heard:
17 January 2017
Delivered:
26 May 2017
JUDGMENT
MAKINTA
AJ
Background
[1]
The
applicant, Autozone, employed Janine Johnson, (Johnson) as a dispatch
clerk.
[2]
The
parties in this matter are bound by a collective agreement of the
Motor Industry Bargaining Council (MIBCO), (Agreement). The
said
agreement prescribes wages / salaries of employees in particular
categories.
[3]
An
inspector of MIBCO inspected Autozone, and concluded that, it was not
complying with the agreement with regard to paying minimum
wages, in
that, it was not paying a certain Johnson, its employee, the minimum
wage prescribed by the agreement.
[4]
Around
June 2014, MIBCO issued a compliance notice to Autozone to pay
Johnson the minimum wages prescribed in the agreement, with
retrospective effort.
[5]
Autozone
responded to the compliance notice, and stated that the job content
of Johnson’s job was ten percent (10%) clerical/office
and 90%
general work in the context of the agreement, and that therefore,
what it was paying Johnson, which was on a general worker
scale, was
not in conflict, but in compliance, with the agreement.
[6]
The
parties could not reach agreement on this issue, and the dispute went
to arbitration, which was conducted on 11 December 2014.
[7]
In
the award, the arbitrator found that Johnson was a “dispatch
clerk,” and should be paid according to the minimum
wage
prescribed for a “dispatch clerk”.
[8]
The
arbitrator accordingly ordered Autozone to pay MIBCO on behalf of
Johnson an amount of (R2 457,20), which is what Autozone had
short-paid Johnson with.
[9]
Autozone
did not accept the above findings of the arbitrator hence, it
instituted this review application.
Preliminary issues
[10]
This
review application was instituted outside the six-weeks prescribed,
and there is no proper application for condonation of the
lateness.
[11]
Counsel
for Autozone conceded that the application was instituted late, and
attempted to move an application for condonation from
the bar, which
was clearly not in compliance with the Rules of this Court.
[12]
In
any case, he did not know why the application was late, but
speculated in this regard. In this regard, I am reminded of the
remarks of this Court in
Numsa
v Hillside Aluminium
[1]
where it was held:
“
Additionally,
there should be acceptable explanation tendered in respect of each
period of delay.
Condonation
is not there simply for the asking. Applications for condonation are
not a mere formality. The onus rests on the applicant
to satisfy the
court of the existence of good cause and this requires a full,
acceptable and ultimately reasonable explanation
.
One of the primary purposes of the Labour Relations Act is to ensure
that disputes are resolved expeditiously, especially dismissal
disputes. The intention is that disputes alleging unfair dismissal
should be referred to conciliation within 30 days of the dismissal
(section 191(1)(b)(i); that the conciliation process be completed
within 30 days (section 191(5) and that disputes for adjudication
by
the Labour Court should then be referred within 90 days of the end of
conciliation process. For a variety of reasons these time
periods are
often not complied with in practice. Nevertheless, to do justice to
the aims of the legislation, parties seeking condonation
for
non-compliance are obliged to set out full explanations for each and
every delay throughout the process. An unsatisfactory
and
unacceptable explanation for any periods of delay will normally
exclude the grant of condonation, no matter what the prospects
of
success on the merits. The latter principle was stated by Myburgh, JP
in
NUM
v Council for Mineral Technology
(1999) 3 BLLR 209
(LAC) at 211G-H:
“
There
is a further principle which is applied and that is that without a
reasonable and acceptable explanation for the delay, the
prospects of
success are immaterial, and without prospects of success, no matter
how good the explanation for delay, an application
for condonation
should be refused.”” (Emphasis added.)
[13]
Autozone
has failed to proffer any reasonable and acceptable reasons for its
late application and therefore condonation is refused.
[14]
Consequently,
this review application is dismissed.
Merits
of the Review
[15]
Should
this Court be found to have erred with the finding above, the review
application will be dismissed for the reasons stated
below
[16]
The
applicant raised a number of grounds of the review of the Award,
which lack particularity, including the following:
1).
That the arbitrator did not render an arbitration award which a
reasonable arbitrator
could make.
1.1. The
applicant does not substantiate as to why it submits that the Award
is unreasonable.
2).
The applicant submits that, the arbitrator has not applied his mind
or considered
evidential material, but does not specify the bases of
these submission.
3).
That the arbitrator assessed the job title “
at face value”
,
but does not elaborate, and does not refer to the definitions in the
collective agreement relevant to this issue.
4).
That the arbitrator failed to apply his mind to the factual issues
before him, but
does not specify which factual issues it refers to.
5).
The applicant does not deal with the arbitrators’ finding
contained in the Award,
and does not specify, why the findings should
be found to be unreasonable.
[17]
On
the basis of the lack of particularity referred to above, this review
application would still be dismissed, had it been instituted
in time.
[18]
The
arbitrator considered that, the employee’s appointment letter
indicates that he is a dispatch clerk, not a general worker.
He
further considered that, there were many similarities between the
duties of a dispatch clerk and those of a general worker.
[19]
He
found that, the duties of a general worker are so wide that they
encompass most of the other positions in Autozone.
[20]
He
finally considered the fact that, the employee’s position is
described as that of a clerk, that is, dispatch clerk, and
that, in
terms of the MIBCO agreement, the scale of an administrative clerk is
higher than that of a general worker, and Autozone
pays the employee
according to the letter scale.
[21]
The
above findings are so reasonable that any reasonable arbitrator could
have made.
Conclusion
[22]
I
therefore find that, contrary to Autozone’s submission, the
Award is reasonable.
Order
[23]
In
the light of the above, the following order is made:
1)
This
review application is dismissed.
2)
There
is no order as to costs.
_________________
E.S. Makinta
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Adv. W Hutchinson
Instructed
by:
Fluxmans Inc.
For
the Respondent:
No appearance
[1]
[2005] ZALC 25
;
(2005) 6 BLLR 601
(LC) at para 6.