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[2017] ZALCJHB 282
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Mogwale v Ekurhuleni Artisans and Skills Training Centre (Pty) Ltd (J2560/16) [2017] ZALCJHB 282 (4 August 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA,JOHANNESBURG
JUDGMENT
Not Reportable
Case No: J2560/16
In the matter between:
EMELDA R
MOGWALE
Applicant
and
EKURHULENI
ARTISANS AND SKILLS TRAINING
CENTRE
(PTY)
LTD
Respondent
Heard: 11 July 2017
Delivered: 4 August
2017
JUDGMENT
BARRABLE AJ
Introduction
The applicant seeks an
order in terms of Section 158 (1) (c) of the L
abour
R
elations
A
ct
1
(LRA)
for
the arbitration award dated 29 September 2016 issued by the
Commission for Conciliation, Mediation and Arbitration (CCMA)
under
case number GAEK6260-16 to be made an order of Court.
The respondent has
opposed this application and at the same time has brought a counter
application in which the respondent seeks
the following orders:
Staying the enforcement
of the arbitration award pending the outcome of a review
application launched by the respondent under
case number:
JR2198-16,
Directing that the
respondent be absolved from making payment of security as required
in terms of Section 145 (8) of the Act
as amended or alternatively
foxing a reasonable amount of security in line of the principles of
justice and equality.
The applicant opposes
the respondent's counter application.
Background facts
The applicant was
employed by the respondent as a call centre agent. Following her
dismissal on 26 February 2016 the applicant
referred an unfair
dismissal dispute to the CCMA. The CCMA issued an award in her
favour on 29 September 2016. In the award,
her dismissal was found
to be substantively unfair and the commissioner ordered that the
applicant be reinstated and paid seven
months' salary in the amount
of R71 400.00 (R10 200.00 x 7). It was further ordered that the
applicant report for work at the
respondent's premises on 17 October
2016.
On 14 October 2016, the
respondent filed an application to review and set aside the award
under case number JR 2198-16.
On 1 November 2016, the
respondent submitted payment to transcribers for the preparation of
the CCMA record.
On 2 November 2016, the
applicant lodged this application to make the arbitration award an
order of Court in terms of Section
158 (1)(c) of the LRA. The
respondent immediately opposed the application and brought a counter
application seeking the relief
as set out above.
Analysis
When exercising its
power to make an arbitration award an order of Court in terms of
Section 158 (1)(c) of the LRA, the Court
has a discretion which it
must exercise judicially taking into account all the relevant facts
and circumstances
2
.
The applicant contends
that the respondent's review application is not properly before this
Court as the respondent has failed
to furnish security as required
by the LRA. Section 145 (7) of the LRA states:
"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)".
It is clear from the
wording of this subsection that the validity of a review application
does not depend upon the furnishing
of security, however the
enforcement of an arbitration award is not suspended unless security
has been furnished.
The respondent took
steps to bring its review application well within the time frames
allowed under the LRA. It appears that the
respondent has taken
steps to transcribe the record of the CCMA proceedings although the
record has as yet not been delivered.
There is no evidence
that the respondent was using the review application process to
deliberately delay the applicant from receiving
payment in terms of
the arbitration award.
In the circumstances, I
do not consider that it would be in the interests of justice and
fairness to grant the applicant's application
as the respondent
would be denied the opportunity to have its review application
ventilated.
Counter application
Section 145 (8) of the
LRA provides: "
Unless
the Labour Court directs otherwise, the security furnished as
contemplated in subsection (7) must-
(a) in the case of an
order of reinstatement or re-employment, be equivalent to 24 months’
remuneration
".
In terms of this
subsection the Court is empowered to reduce the quantum of security.
In considering the question whether the
requirement of security
could be waived, in
Free
State Gambling and Liquor Authority v CCMA and Others
3
,
Rabkin Naicker J concluded that the Court has the discretion to
order that security be reduced or dispensed with
4
.
In that case the Court found that it was unnecessary for the organ
of state, who was regulated by the Public Finance Management
Act
5
and Treasury Regulations, to put up security. The Court also held
that regarding the circumstances under which the quantum of
security
may be reduced, this should be determined on a “
case
to case basis
”
6
.
In
MBS
Transport CC v CCMA and Others, Bheka Management Services (Pty) Ltd
v Kekana and Others
7
,
in considering whether an employer party should be absolved from
furnishing security the Court took into account the financial
position of the employer from submissions made in its application.
The Court was also of the view that in exercising its discretion
it
should balance the competing interests of the parties
8
.
Further, the Court referred to several decisions of the courts that
labour disputes must be resolved and finalised expeditiously
9
.
As a general principle,
in motion proceedings an applicant must make its case out in its
founding affidavit
10
.
In support of its counter application the respondent contends that
the security amount of R244 800.00 which is the equivalent
of 24
months’ remuneration is unreasonable and not in the interests
of justice. The deponent to the respondent's affidavit
however does
not support this contention with any facts or evidence which would
assist me in making a determination on this issue.
The respondent’s
representative submitted at the hearing of this application that the
deponent is the sole director of the
respondent which is not a
substantial company. Further, that the payment of the statutory
security amount would have a detrimental
effect on the respondent
and would cause debt to the business. The respondent was willing to
tender two months’ salary
in the amount of R 20 000.00 as
security. The applicant's representative disputed the submissions
made by the respondent's representative
stating that the respondent
was a large training school in Ekurhuleni and had many assets. The
applicant rejected the respondent’s
tender on the basis that
it had only now been made known for the first time at this hearing
and was hopelessly inadequate.
Unfortunately, none of
the submissions made by the respondent’s representative were
mentioned in the respondent’s
founding papers.
The amount of
compensation as set out in the arbitration award earns interest from
the date of the award at the rate prescribed
from time to time in
respect of a judgement debt in terms of Section 2 of the Prescribed
Rate of Interest Act
11
.
This militates against any prejudice which an employee/applicant may
suffer should the respondent delay in finalising the review.
Nothing
has been placed before me suggesting that should the respondent be
unsuccessful in its application to review and set
aside the award of
the CCMA it would be unable to satisfy the award.
I have already noted
that it does not appear that the respondent is using delay tactics
in prosecuting the review application.
In these circumstances,
in my view the respondent has not made out a case for the security
as prescribed by the S 145 (8)(a) of
the LRA to be dispensed with or
reduced.
Costs
Whether costs should be
granted in this Court involves a consideration of law and fairness.
I note that in its review application
12
,
the respondent included a prayer for an order for the respondent to
be absolved from making payment of security alternatively
fixing a
reasonable amount of security. I agree with the submissions of the
applicant’s representative that this prayer
is not appropriate
in a review application, as it would have circumvented the very
purpose of the requirement of security as
set out in Section 145
(7). It appears that the respondent's counter application was only
brought as a reaction to the Section
158 (1)(c) application launched
by the applicant. The respondent did not proactively approach this
Court by way of a separate
application for a determination on the
issue of security. Also, the respondent’s founding affidavit
is not substantial
and does not set out sufficient facts to support
the relief that it seeks.
Despite receiving
notification from the Registrar on 23 February 2017 and again on 7
June 2017, to file heads of argument, the
respondent did not file
heads of argument.
Taking into account all
these factors I see no reason why the respondent should not be
liable for the costs of its counter application.
Order
I make the following
order:
The applicant’s
application in terms of S 158 (1)(c) is dismissed with no order as
to costs.
With regard to the
respondent’s counter application the following order is made:
The respondent is
ordered to pay security in the amount of R244 800.00 within 10
days of the date of this order.
The enforcement of the
arbitration award issued by the CCMA under case number GAEK626-16
on 29 September 2016 is stayed pending
the outcome of the review
application launched under case number: JR2198-16.
The respondent is
ordered to pay the costs of the counter application
______________________
G Barrable
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Advocate Matome Sehunane
Instructed by: Sehunane
Attorneys
For the Respondents: Mr
Calie Smit of Smit Attorneys
1
Act 66 of 1996.
2
Greef v Consol Glass (Pty) Ltd
(2013)
34 ILJ 2835 (LAC).
3
(2015) 36 ILJ 2867
(LC)
at para 4.4
4
Approved
in MBS Transport CC v CCMA and Others, Bheka Management Services
(Pty) Ltd v Kekana and Others
(2016)
37 ILJ 684 (LC)
5
Act 1 of 1999 (PFMA)
6
Ibid at
para 4.5
7
(2016) 37 ILJ 684 (LC)
8
Ibid at para 24
9
National Education Health
and Allied Union v University of Cape Town and others
2003 (3) SA 1
(CC);
(2003) 24 ILJ 95
(CC) para 31,
National
Union of Metalworkers of SA and Others v Fry’s Metals (Pty)
Ltd
2005 (5) SA 433
(SCA);
(2005) 26 ILJ 689 (SCA) para 36
10
National Council of Society
for the prevention of cruelty to animals v Openshaw
2008
(5) SA339 (SCA) para 26
11
Act 55 of 1975
12
Annexure
“MJVR2” page 25-29 of the bundle