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[2018] ZALCJHB 275
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Sasol South Africa (Pty) Ltd v Nkosi and Another (J1085/16) [2018] ZALCJHB 275 (24 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J1085/16
In
the matter between:
SASOL
SOUTH AFRICA (PTY)
LTD
Applicant
And
GODFREY
JABULANI
NKOSI
First
Respondent
NATIONAL
BARGAINING COUNCIL
FOR
THE CHEMICAL
INDUSTRY
Second
Respondent
Heard:
17 July 2018
Delivered:
24 August 2018
Summary:
The applicant seeks to have this court to set aside a subpoena that
was issued by the General Secretary of the second respondent
at the
request of the first respondent, without having first raised its
objections regarding the subpoena before a Commissioner
appointed to
arbitrate the dispute between the parties.
JUDGMENT
SEDILE,
AJ
Brief
background
[1]
During the year 2015, the first respondent referred an unfair labour
practice dispute to the second respondent. The first respondent’s
dispute revolved around the procedure in which the applicant
conducted his performance appraisal in connection with the 2015
financial
year, and the resultant bonus that was issued to him by the
applicant for that financial year.
[2]
The parties failed to resolve the matter at conciliation and
subsequently the dispute went for arbitration.
[3]
During May 2016, in an effort to prove his case at the arbitration,
the first respondent requested the second respondent to
issue a
subpoena for the production of certain documents relating to the
performance appraisals of the three following employees,
namely:
3.1 Mr F R Baloyi;
3.2 Mr Ashby Neshunzi; and
3.3 Mr R L Rametsi.
[4]
The reasons for the requested subpoena were set out in the first
respondent’s written motivation, in which the first respondent
sought to prove that the matter in which he was assessed was unfair
when compared to other employees of the applicant who perform
the
same or similar duties.
[5]
The first respondent stated in his motivation that his intention was
not to know the salaries of the three employees listed.
He further
stated that the commissioner hearing the matter could view the
documents privately in order to enable him or her to
compare the
manner in which the first respondent was rated and the manner in
which the other employees were rated, in the process
of determining
whether the first respondent was treated fairly.
[6]
The subpoena was issued on 24 May 2016 and served on the applicant
thereafter. The applicant then launched this application
during June
2016. The pleadings regarding that application were finalised
during August 2016 when the applicant filed its
replying affidavit.
Thereafter, and for a period of 8 months, no action was taken by the
applicant to ensure that its application
was set down.
[7]
The arbitration was scheduled for 29 August 2016, but on that date
the commissioner acceded to the applicant’s request
for
postponement pending the outcome of this matter, despite the first
respondent’s opposition.
Submissions
by the parties
[8]
The first respondent contends that the applicant is not entitled to
the relief sought and that this application should be dismissed
because of the undue delay in prosecuting this matter.
[9]
The applicant submits that this
court has the jurisdiction to set aside a subpoena issued by the
second respondent in terms of section
142(11)
[1]
of the Labour Relations Act
[2]
(LRA) and that the applicant was correct in approaching this court to
set aside the subpoena.
Analysis
of the review application
[10]
The arbitration proceedings between the parties remain incomplete and
the disputes between the parties remain unresolved. The
labour
dispute resolution mechanism in terms of the LRA has to be finalised
before parties can approach the Labour Court unless
there is a
justifiable reason to do so.
[11]
It is important for the parties in their labour disputes to
expeditiously resolve the dispute in question as a whole within
the
speed it deserves and not on a piecemeal approach.
[12]
The commissioner in this case had powers to issue a subpoena in order
to attempt to resolve this dispute in terms of section
142(1)(b)
which reads as follows:
“
(b)
to any person who is believed to have possession or control of any
book, document or object relevant to the resolution of the
dispute,
to appeal before the commissioner to be questioned or to produce that
book, document or object…”
[13]
The first respondent’s dispute has been delayed due to an
incomplete arbitration proceeding and that the applicant could
have
approached the commissioner during the proceedings with its
objections regarding the subpoena before approaching this court.
Conclusion
[14]
The subpoena issued by the second respondent at the request of the
first respondent is upheld.
[15]
In the premises the following order is made:
Order
1. The application is dismissed with
costs;
2. The matter is referred back for the
arbitration proceedings to be completed.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: D.O Pretorius of Fluxmans
Incorporated
For
the first Respondent: V. Mkwibiso of VGN Attorneys
[1]
142. Powers of commissioner
when attempting to resolve disputes –
(11)
The Labour Court may confirm, vary or set aside the finding of a
commissioner.
[2]
66 of 1995, as amended.