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[2017] ZALCJHB 395
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Woolworths (Pty) Ltd v CCMA and Others (J1383/2017) [2017] ZALCJHB 395 (27 June 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
CASE
NO
: J1383/2017
DATE
:
2017-06-27
In the
matter between
WOOLWORTHS
(PTY)
LTD
Applicant
and
CCMA
First respondent
Commissnioner
RAFFEE
Second respondent
AKALANI GLADNESS
MASINDI
Third respondent
EX TEMPORE
JUDGMENT
STEENKAMP,
J
:
This
is an application for
rule nisi
calling upon the respondents
to show cause on the return date why an order should not be made in
the following terms:
Firstly,
to stay the enforcement of an arbitration award pending the outcome
of a review application;
And
secondly, that provision of security relating to the review
application is dispensed with, alternatively reducing the provision
of security to the amount of R10 000.
It
is trite that the Court may stay the enforcement of an award in
terms of
s 145(3)
of the
Labour Relations Act 66 of 1995
.
Mr
Pretorius
has referred to the LAC case of the
CCMA v MBS
Transport cc
, JA94/2015 delivered on 28 June 2016.
In
that case, as far as it should have been necessary, the LAC
reiterated in paragraph [41] that
section 145
(3) is clear. The
enforcement of an arbitration award may be stayed by the Labour
Court, pending its decision in a review application.
The
contentious part of this application is the relief sought in
paragraph 2.2, namely that provision of security be dispensed with
or
reduced.
In
terms of the amendments to the LRA, introduced by Act 6 of 2014 that
commenced in 2015, as is apparent from section 145 (7),
the
institution of review proceedings does not suspend the operation of
an arbitration award unless the applicant furnishes security
to the
satisfaction of the Court in accordance with sub-section (8), which
reads:
“
Unless
the Labour Court directs otherwise, the security furnished as
contemplated in subsection (7) must --
(a)
in the case of an order for reinstatement or re-employment, be
equivalent to
24 months’ remuneration; or
(b)
in the case of an order of compensation, be
equivalent
to the amount of compensation awarded.”
In
this case the amount of compensation awarded is R 107 189, 04.
The applicant, Woolworths (Pty) Ltd, is one of the most
financially
healthy corporate entities in this country. It has provided the Court
with its interim results, showing an operating
profit of millions of
Rands. There is no doubt that it is in a position to furnish the
security as contemplated by the Act.
Despite
that, Mr
Pretorius
– for Woolworths – argued that
it should be exempt from paying security as the applicant would
suffer financial prejudice.
Furnishing security would, it
says, “hamper the utilisation of funds.”
That
is of course true for any employer, not just for a large corporate
employer like Woolworths. There are many smaller employers
that
may well be hamstrung to a much greater degree, and it is for that
reason that sub-section (8) allows the Court to “direct
otherwise”, i.e. in exceptional circumstances to direct that a
smaller amount be furnished. This is not such a case.
The
aim of the legislation is clear. It is to safeguard the rights
of the employee, so that, should the review application
be
unsuccessful, the payment of the compensation is guaranteed, and the
employee is not put in a position where she again has to
take further
steps and incur further costs in order to ensure that the amount due
to her is paid. To put
it colloquially, she
should not be placed in a position where she has to “whistle
for her money”.
I
can see no reason why Woolworths should be exempt from that
peremptory provision, inserted by the legislature in the
Labour
Relations Act. It
is not for this court to second guess the
legislature. If, as Mr
Pretorius
submitted, there is a
case to be made that the provision is unconstitutional, then the
proper application should be brought to
have it declared
unconstitutional.
I
am not persuaded that the relief sought in prayer 2 should be
granted.
ORDER
I
therefore grant an order in the following terms:
[1]
A rule
nisi
is issued calling upon the respondents to show
cause on the return day, being 20 September 2017, why an order should
not be granted
that the enforcement of the arbitration award under
case reference GAJB 20792/16 dated 17
th
March 2017 is
stayed pending the outcome of the review application.
[2]
The applicant must provide security in terms of
section 145
(8) of
the LRA by 7 July 2018.
[3]
Paragraph 1 serves as an interim order pending the return day.
-
- - - - - - - - - - - - - - -
.
-
- - - - - - - - - - - - - - - - - - - - -
STEENKAMP
J
CERTIFICATE
OF VERACITY
I,
the undersigned, hereby certify that as far as it is audible to me,
the aforegoing is a true and correct transcript of electronically
recorded proceedings in the matter of:
WOOLWORTHS
Applicant
and
TAKALANI
GLADNESS
MASINDI
Respondent
______________________________________________________________
COURT
OF ORIGIN
: Labour
Court
CASE
NUMBER
:
J1383/2017
TRANSCRIBER
: ELVIRA
DENTON
DATE
COMPLETED
:
23 July
2017
NUMBER
OF PAGES
:
15
TRANSCRIBER’S
NOTES:
A
very bad recording. Sound and voice both extremely unclear,
giving rise to [indistinct] remarks.
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