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[2017] ZALCCT 49
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Maart v CCMA and Others (C673/2016) [2017] ZALCCT 49 (3 August 2017)
IN THE
LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NUMBER
: C673/2016
DATE
:
3 AUGUST 2017
In the matter
between:
KIM
MAART
Applicant
and
CCMA
1
st
Respondent
COMMISSIONER
REZA
SLAMANG
2
nd
Respondent
POLAR
ICE CREAM (PTY) LTD
3
rd
Respondent
J
U D G M E N T
STEENKAMP,
J
This
application for review comes before the Court in rather unusual
circumstances. The applicant, Ms Kim Maart, was dismissed
by
the third respondent, Polar Ice Cream (Pty) Ltd. Feeling
aggrieved with the dismissal, she referred a dispute to the CCMA,
the
first respondent. Commissioner Reza Slamang, the second
respondent, presided over the arbitration once conciliation had
failed. The Commissioner found that the dismissal was fair and
ordered the employer to pay Ms Maart only an amount in lieu
of notice
and an amount in respect of outstanding wages and no compensation.
Ms
Maart approached this Court to have the arbitration order reviewed
and set aside in terms of Section 145 of the Labour Relations
Act.
She filed an amended notice of motion on 25 January 2017 in which she
asks that the award be reviewed, set aside and
remitted to the CCMA
for an arbitration
de novo
before a Commissioner other than the second respondent.
The company’s
attorneys wrote to Ms Maart on 20 February 2107, shortly after having
received the amended notice of motion,
and made an offer on the
record, or with prejudice, saying:
“
Our
instructions are that our client will not oppose your review
application under the abovementioned case number on the basis that
you agree that:
1.
The matter is arbitrated afresh at the CCMA
and that the Labour Court may not substitute its decision for [that
of] the CCMA;
2.
You will not pursue costs against our
client.”
And the
attorneys, Maserumule Attorneys, then told Ms Maart in that letter
that, should she refuse to agree to the proposal:
“…
and
as our client will incur legal costs in addressing the matter in that
manner, we shall request that a costs order be granted
against you.”
Ms Maart did
not respond to that offer. There is some dispute as to whether
she received the letter, but be that as it may,
on 22 March 2017 the
company filed its answering affidavit, assisted by its current
attorneys of record. In that affidavit
the General Manager of
the company, Riyaaz Mohamed, repeated the tender and said the
following:
“
Third
respondent would not oppose applicant’s review application
should applicant agree that the matter be arbitrated afresh
before
first respondent and should applicant not pursue costs against third
respondent. In the event that applicant refuse
to agree to
third respondent’s proposal, third respondent would file an
affidavit confirming its agreement to applicant’s
dispute being
submitted to first respondent to be re-arbitrated and in such
circumstances third respondent would request that a
cost order be
granted against applicant.”
Ms Maart
confirmed, in her argument before Court today, but also in the
replying affidavit that she subsequently filed on 10 April,
that she
did receive that answering affidavit and that she was well aware of
the tender made by the company. Before filing
her answering
affidavit and on 3 April, Ms Maart wrote to Maserumule Attorneys and
said:
“
Since
third respondent initiated the proposal/request process, which
applicant has however not received, the applicant therefore
are [
sic
]
now putting forth her proposal.”
She
then asked to be paid a “non-deductible salary” of 12
months, paid in a lump sum “non-negotiable” and
she said
that, should the company refuse to agree to her counterproposal, she
would continue with the case, she would file a notice
to withdraw the
relief against the CCMA and the Commissioner from being responsible
for any costs, but would hold the company responsible
for costs in
the review application.
When
the matter was heard this morning, Ms Maart was at a loss to explain
why she would not accede to the reasonable offer made
by the company
in circumstances where the company offered her everything that she
asked for in her notice of motion, i.e. that
the award be reviewed
and set aside and remitted to the CCMA for a hearing afresh before a
Commissioner other than Slamang.
After some time, when the
Court asked her for her reasons, she simply answered “no
reason”.
In
those circumstances Ms
Pead,
for
the company, argued that, as foreshadowed in its answering affidavit,
costs should be awarded against the applicant as she carried
on with
litigation and forced the company to incur legal costs in
circumstances where she was forewarned that costs would be sought
against her and that her subsequent conduct amounted to malicious and
vexatious litigation.
In
terms of Section 162 of the Labour Relations Act, this Court has to
take into account the requirements of both law and fairness
in
deciding whether or not to award costs. One of the factors that
should be considered is the conduct of the parties in
pursuing or
continuing with litigation. I agree with Ms
Pead
that the attitude of Ms Maart in this
case in electing to continue with litigation in circumstances where
her employer had offered
her everything that she had asked for, was
entirely unreasonable. No further legal costs should have been
incurred once the
employer had made the offer of 20 February,
reiterated in its answering affidavit of 22 March. This is a
case where she should
be held liable for those costs.
I therefore
make the following order:
1.
THE ARBITRATION ORDER OF 26 SEPTEMBER
2016 UNDER CASE NUMBER WECT6945/16 IS REVIEWED AND SET ASIDE
.
2.
THE APPLICANT’S UNFAIR
DISMISSAL DISPUTE IS REMITTED TO THE CCMA FOR A FRESH ARBITRATION
BEFORE A COMMISSIONER OTHER THAT
THE SECOND RESPONDENT
.
3.
THE APPLICANT IS ORDERED TO PAY THE
THIRD RESPONDENT’S COSTS
.
_____________________
STEENKAMP, J