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[2017] ZALCJHB 418
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FAIS Ombud v Rametsi and Others (J2591/17) [2017] ZALCJHB 418 (17 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not Reportable
Case no: J 2591/17
In the matter between:
FAIS
OMBUD
Applicant
and
MPHO
RAMETSI
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
JOHN SIAVHE
N.O.
Third Respondent
Heard:
11 October 2017
Delivered:
17 November 2017
JUDGMENT
MAHOSI
J
Introduction
[1] This is an urgent
application to stay the enforcement of a ruling issued by the third
respondent (“the commissioner”)
on the 31
st
of
July 2017, under case number GATW 8645/17 pending the review
application filed with this Court on the 22
nd
of August
2017 under case number J1766/17.
Material facts
[2] On or about 23
rd
of May 2017, the applicant instituted disciplinary proceedings
against the first respondent on the basis that she had committed
certain acts of misconduct. Pursuant to that, the applicant placed
the first respondent on suspension with full payment of her
employment benefits. The parties agreed that the disciplinary enquiry
would be conducted by a commissioner of the second respondent
(“CCMA”) in terms of section 188A of the LRA which
proceedings were held at the applicant's premises on the 11, 12,
and
20
th
of July 2017.
[3] On the 31
st
of July 2017, the commissioner issued a ruling in favour of the first
respondent. In his ruling, the Commissioner found as
follows:
‘
51. The
employee, Mpho Rametsi, should be counselled for the admissions she
made; such counselling shall take effect from the day
it would be
conducted. The fact that she apologised and was sorry for
what happened demonstrates her remorsefulness.
52. Mpho’s suspension is
therefore uplifted with immediate effect, and she will have to report
for duty on Friday the 11
th
of August 2017.’
[4] On the 8
th
of August 2017, the applicant informed the first respondent in
writing not to report for duty as it had decided to have the
arbitration
award reviewed. The applicant further informed the first
respondent that it was to discontinue paying her salary. Furthermore,
the applicant sought an undertaking from the first respondent that
the ruling would not be enforced pending the review application
which
undertaking was not given.
[5] On the 18
th
of August 2017, the review application was served on the first
respondent’s attorneys. On the 22
nd
of August 2017,
the first respondent applied for the certification of the award in
terms of section 143 of the LRA. Subsequently,
on the 24
th
of August 2017, the first respondent then proceeded with the contempt
of court application that was heard on the 15
th
of
September 2017. In this case, the court issued the following order:
‘
1.
The First Respondent’s Ombud, Ms Noluntu Bum (“the Second
Respondent”)
must appear in the Labour Court on 17 November
2017 at 10H00 to show cause why they should not be found guilty of
contempt of Court
for failing to comply with the Order of this Court
dated 31 July 2017.
2.
The first respondent and/or second respondent may explain their
conduct by way
of affidavit on the date of the hearing or before
that, although this will not excuse them from being present in Court.
3.
In the absence of providing an explanation to the satisfaction of the
court of
failing to appear in court despite being properly served,
the first respondent and the second respondent be found guilty of
contempt
and the first respondent and the second respondent be
incarcerated for such period as the court deems appropriate, or other
alternatively..’
4.
Service of this could be effected personally on the first and second
respondents.
5.
The first and second respondent be ordered to pay the cost of this
application
on attorney and client scale.
[6] Subsequent to being
served with the above order, the applicant brought this application
on an urgent basis.
Applicable legal
principles and evaluation
[7]
In this case, the commissioner issued the ruling in terms of section
188A of the LRA.
The
ruling of the arbitrator in an inquiry held in terms of section 188A
has the same status as an arbitration award and that the
provisions
of sections 143 to 146 apply with the changes required by the context
to any such ruling.
[1]
Section
143 of the LRA deals with the
effect
of arbitration awards,
and
it states as follows:
‘
(1)
An arbitration award issued by a commissioner is final and binding
and it may be enforced as if it were an
order of the Labour Court in
respect of which a writ has been issued, unless it is an advisory
arbitration award.
(2)
If an arbitration award orders a party to pay a sum of money, the
amount earns interest from the date of the
award at the same rate as
the rate prescribed from time to time in respect of a judgment debt
in terms of section 2 of the Prescribed
Rate of Interest Act, 1975
(Act No. 55 of 1975, unless the award provides otherwise.
(3)
An arbitration award may only be enforced in terms of subsection (1)
if the director has certified that
the arbitration award is an award
contemplated in subsection (1).
(4)
If a party fails to comply with an arbitration award certified in
terms of subsection (3) that orders
the performance of an act, other
than the payment of an amount of money, any other party to the award
may, without further order,
enforce it by way of contempt proceedings
instituted in the Labour Court.
(5)
Despite subsection (1), an arbitration award in terms of which a
party is required to pay an amount
of money must be treated for the
purpose of enforcing or executing that award as if it were an order
of the Magistrate‘s
Court.
[8]
It is common cause that at the time the review application was
launched, the applicant did not apply for an order to stay the
enforcement of the ruling. Section 145(7) clearly states that 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 subsection
(8). In this
case, the certified award was for the performance of an act, which
was not done. Therefore, the first respondent was
entitled to
institute contempt proceedings in terms of section 143(4).
[2]
In
Moqhaka
Local Municipality v Motloung and Others,
[3]
this Court stated as
follows:
‘
Typically,
security is often only provided when the applicant is compelled to
bring an urgent application to stay the execution
of a writ and the
security tendered is then placed before a judge in court when the
urgent application is considered. . . . The
difficulty for an
applicant on review is that until the court has made a ruling under
section 145 (7) to the effect that it is
satisfied that the security
provided meets the requirements of section 145 (8), in the absence of
an undertaking from the employee
party that no further steps will be
taken to enforce the award in light of the security provided, the
applicant has no guarantee
that it will not be surprised by a sheriff
arriving at its premises to execute the deemed writ. Unless an
alternative procedure
is developed, an applicant who cannot secure
the agreement of the employee party not to attempt to enforce the
award once security
has been lodged, will have little option but to
approach the court as the applicant did in this case,
albeit
that
in this instance, the first respondent was relying on a writ issued
by the registrar and not on a writ that was deemed
to be issued in
terms of s 143(1) of the LRA.
[9]
In this case, the applicant could not secure an undertaking with the
first respondent not to proceed with the enforcement of
the ruling,
hence this application. I will assume that the application is urgent.
The applicant’s first hurdle is that
the
applicant failed to furnish security to the satisfaction of this
Court in accordance with section 145(8) which states as follows:
‘
(8)
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;
or
(b)
in the case of an order of compensation, be equivalent to the amount
of compensation awarded.
[10]
The second question is whether this Court may stay the enforcement of
a ruling in terms of which the employee’s suspension
was
uplifted. What makes the facts of this case unusual is that the
applicant, subsequent to receiving the ruling, did not only
prevent
the employee from resuming her work but also stopped paying her
salary.
[11]
The
applicant’s submissions that the charges against the first
respondent both individually and accumulatively warranted a
sanction
of dismissal could have merit. However, the fact that there could be
merit does not automatically justify the applicant’s
submission
that
it
will suffer irreparable harm if it is forced to continue paying the
first respondent’s salary pending the review application.
Neither does it justify i
ts
submission that
the
first
respondent will suffer no prejudice
should
the court grant the order to stay the execution of the ruling.
[12] I agree with the
first respondent’s contention that the applicant is not
entitled to stay the enforcement of the award
on the basis of the
contempt proceedings. The applicant should raise its arguments when
the contempt proceedings are heard. It
is apparent that the first
respondent is prejudiced by the applicant’s decision to
terminate her employment salary and benefits.
The applicant never
dismissed the first respondent. As such, her contract of employment
with the applicant remains valid and enforceable
pending the review
application.
[13]
The
applicant’s decision to stop paying the first respondent’s
benefits was ill-conceived. It is trite that the launching
of the
review application has an effect of restoring the status
quo
ante.
It follows that, as the first respondent was on suspension with full
benefits prior to the ruling, her status should remain unchanged
pending the review application. As such, even if this Court were
inclined to grant the order to stay the enforcement of the award,
the
court order would only have an effect of suspending the upliftment of
the first respondent’s suspension. However, the
applicant would
still have a legal obligation to retain the first respondent’
status of being
on
suspension with full payment of her employment benefits.
[14]
In
light of the above, I am of the view that the applicant has failed to
make out a case for staying
the
enforcement of a ruling issued by the third respondent
.
In this case, it would not be in the interest of justice to
stay the enforcement of the ruling of the commissioner. I see
no
reason also in the circumstances of this case why costs should not
follow the result.
Order
[15] In the premise, the
following order is issued:
i)
The applicant's application to stay the enforcement of the ruling
issued
by the
third
respondent
on the 31
st
of July 2017, under case number GATW 8645/17
is
dismissed with costs.
__________________
Mahosi J
Judge
of the Labour Court
APPEARANCES:
FOR THE APPLICANTS:
Mr Tulula Ningiza
Ningiza Horner
Attorneys
FOR THE THIRD
RESPONDENT:
Mr De Bryn
De
Bruyns Attorneys
[1]
Section
188A(8)
of the LRA.
[2]
CCMA
v MBS Transport CC and Others, CCMA v Bheka Management Services
(Pty) Ltd and Others
[2016]
10 BLLR 999 (LAC).
[3]
(2017) 38 ILJ 649 (LC)
at para 27