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CT International Financiers (Pty) Ltd v van Rooyen and Others (C595/18) [2019] ZALCCT 42 (12 December 2019)

80 Reportability
Labour Law
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Brief Summary

Labour Law — CCMA — Jurisdiction — Settlement agreement made arbitration award without prior condonation application — Employee referred unfair dismissal dispute to CCMA 150 days late and sought condonation — CCMA made settlement agreement an arbitration award and certified it — Employer contended CCMA lacked jurisdiction due to failure to rule on condonation — Court held that CCMA's jurisdiction to make a settlement agreement an arbitration award does not require prior determination of condonation, thus upholding the validity of the award and certification.

Comprehensive Summary

Summary of Judgment


1. Introduction


This judgment concerns a review application brought in the Labour Court in terms of section 145 of the Labour Relations Act 66 of 1995 (LRA). The application sought to review and set aside two rulings issued under CCMA case number WECT4616-18, namely a ruling making a settlement agreement an arbitration award under section 142A and a subsequent ruling certifying that award under section 143 of the LRA.


The applicant was CT International Financiers (Pty) Ltd (the employer). The first respondent was Ms Madelaine van Rooyen (the employee). The second respondent was the Commission for Conciliation, Mediation and Arbitration (CCMA). The third respondent was the commissioner who issued the impugned rulings, Mr Vusumzi Landu N.O. The fourth respondent was the Sheriff for the Labour Court for the District of Goodwood.


Procedurally, the employee had referred a dispute to the CCMA and (because the referral was late) had also brought a condonation application. Before that condonation point was determined, the parties concluded a settlement agreement at the CCMA. After the employer failed to comply with the settlement, the employee applied to have the settlement made an arbitration award and then certified for enforcement. The employer then approached the Labour Court to set aside both the section 142A ruling and the section 143 certification, contending that the CCMA lacked jurisdiction because condonation for the late referral had never been decided.


The general subject-matter of the dispute was the enforceability of a CCMA settlement agreement through the statutory mechanisms of section 142A (conversion into an arbitration award) and section 143 (certification), where the underlying dispute referral was out of time and no formal condonation ruling had been made.


2. Material Facts


The employee was employed by the employer as its HR Manager. She tendered her resignation on 7 July 2017 and left the employer’s employ on 4 August 2017.


On 13 March 2018, the employee referred an unfair dismissal dispute to the CCMA, framed as a constructive dismissal, alleging that the dispute arose on 1 September 2017. The referral was approximately 150 days late, and the employee accordingly lodged an application for condonation, which was set down for hearing on 3 April 2018.


On 3 April 2018, the employer was represented at the CCMA by Ms Andrea Scholtz (described in the judgment as the current HR Manager of the employer) and a representative of NEASA (an employers’ organisation). Before the commissioner determined the point in limine (the condonation/jurisdictional objection), the commissioner explored the possibility of settlement. The parties then concluded a written settlement agreement on the CCMA template. A material term was that the employer would pay the employee R200,000.00 by no later than 6 March 2018, as recorded in the agreement.


It was common cause that the employer did not pay as agreed. As a result, on 8 May 2018 the employee applied to have the settlement agreement made an arbitration award under section 142A of the LRA. On 23 May 2018 the commissioner made the settlement agreement an arbitration award.


Following that, the employee applied to have the award certified under section 143. The employer opposed certification, contending that the settlement agreement had been concluded without the express mandate or approval of the managing director. The commissioner rejected that opposition and certified the award.


In the Labour Court review, the employer’s core contention was not directed at the merits of the settlement terms, but at an asserted lack of CCMA jurisdiction to make the settlement an award and to certify it, because the CCMA had not first determined and granted condonation for the late referral.


3. Legal Issues


The central legal question was whether the CCMA (and the commissioner acting under its auspices) had the necessary jurisdiction to make a settlement agreement an arbitration award under section 142A and to certify that award under section 143, where the underlying dispute referral was late and the CCMA had not issued a ruling on condonation under section 191(2).


This dispute primarily concerned a question of law, namely the proper interpretation and interaction of sections 142A and 191 of the LRA (and, by implication, the meaning of the phrase “right to refer” in section 142A(2)). It also involved the application of that legal interpretation to the procedural facts (a late referral, pending condonation, and a settlement concluded before condonation was decided).


A further issue raised by the employer was whether, in the absence of a condonation ruling, the commissioner’s conduct in granting section 142A and section 143 relief was ultra vires (beyond the commissioner’s powers). The employer also relied on Rule 14 of the CCMA Rules, contending that the CCMA could not proceed without jurisdiction being established.


4. Court’s Reasoning


The Labour Court approached the matter by analysing the statutory structure of the LRA relevant to referrals, condonation, settlement agreements, and enforcement.


The court considered section 191 as establishing an employee’s right to refer an unfair dismissal dispute to the CCMA (or bargaining council), imposing a 30-day time limit, and providing for condonation where there is good cause. The court characterised section 191(1)(a) as creating the right of referral, section 191(1)(b) as prescribing the time period, and section 191(2) as allowing for condonation of non-compliance with the time limit.


Turning to section 142A, the court emphasised that section 142A(1) requires only that a dispute “has been referred to the Commission”. In the court’s view, section 142A does not, on its terms, require that the dispute must have been referred timeously, nor that the referral must already have been determined to be capable of determination by the CCMA. The court treated section 142A(2) as focusing on whether the settlement agreement relates to a dispute of a kind that a party has a right to refer to arbitration or the Labour Court, excluding certain specified disputes.


A key aspect of the reasoning was the court’s rejection of the employer’s contention that the CCMA needed first to decide and grant condonation before it could assist the parties in settling, and before it could make that settlement enforceable under section 142A. The court reasoned that such an approach would undermine the purpose of the CCMA and the LRA in promoting speedy dispute resolution, because it would force parties to litigate preliminary issues even where settlement was readily achievable. The court considered it inconsistent with the statutory objectives to require condonation adjudication as a gateway to settlement enforceability, particularly where the CCMA’s settlement-making function is intended to bring disputes to finality efficiently.


The court regarded the Labour Appeal Court decision in Greeff v Consol Glass (Pty) Ltd (2013) 34 ILJ 2835 (LAC) as decisive against the employer’s argument. The court summarised Greeff as interpreting the phrase “right to refer” (in the context of section 158(1A), and with implications for section 142A(2)) not in a narrow sense of an immediately exercisable right, but rather as encompassing disputes that are, by their nature, amenable to the LRA dispute-resolution architecture and could be referred once procedural prerequisites are met.


The court highlighted that the LAC in Greeff expressly noted the similarity between the wording of section 158(1A) and section 142A(2), and warned that a strict interpretation would discourage early settlements and limit enforceability mechanisms to only those settlements concluded after particular conciliation milestones. The Labour Court adopted the LAC’s approach and applied it to section 142A, reasoning that the same interpretive considerations apply “equally” to section 142A, and potentially with even greater force given the CCMA’s role at the “coal face” of dispute resolution.


The employer attempted to rely on the Labour Court’s earlier decision in Consol Glass (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others [2012] 1 BLLR 42 (LC) (which had been overturned on appeal), seeking to distinguish the LAC’s later reasoning. The court rejected that distinction and held that the LAC’s reasoning in Greeff was determinative of the proper interpretation.


The court also addressed the policy and practical implications. It considered enforcement of awards and settlements a persistent difficulty and noted that legislative mechanisms (including section 142A and certification under section 143) are designed to facilitate enforcement. The court reasoned that the employer’s approach would frustrate these mechanisms by leaving employees with settlements that are binding but not easily enforceable through the LRA’s speedy procedures, thereby driving employees into protracted civil litigation.


On that basis, the court concluded there was no basis to interfere with the commissioner’s rulings, and the review had to fail.


On costs, the court applied the Labour Court costs framework of law and fairness, with reference to Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1, which endorsed the approach that costs do not automatically follow the result and that courts must balance discouraging frivolous litigation against not unduly deterring access to the Labour Court. In the court’s assessment, the review should not have been brought, particularly given the clear LAC authority in Greeff, and therefore fairness and law justified an order that costs follow the result.


5. Outcome and Relief


The Labour Court dismissed the review application.


The result was that the section 142A ruling making the settlement agreement an arbitration award, and the section 143 certification, remained in force.


The employer was ordered to pay the employee’s costs of the review application.


Cases Cited


Greeff v Consol Glass (Pty) Ltd (2013) 34 ILJ 2835 (LAC)


Molaba and others v Emfuleni Local Municipality [2009] 7 BLLR 679 (LC)


National Union of Metalworkers of South Africa v Driveline Technologies (Pty) Ltd and another [2000] 1 BLLR 20 (LAC) (also referenced as [2007] ZALC 66 in the judgment)


Consol Glass (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration & Others [2012] 1 BLLR 42 (LC)


Sibongile Zungu v Premier of the Province of KwaZulu-Natal and Others [2018] ZACC 1


Bramley (referred to in the extract from Greeff; citation not provided in the judgment)


Dorkin (referred to via quotation attributed to Zondo JP; citation not provided in the judgment)


Legislation Cited


Labour Relations Act 66 of 1995, sections 142A, 143, 145, 158(1)(c), 158(1A), and 191


Rules of Court Cited


Rule 14 of the CCMA Rules (as referred to in the employer’s submissions)


Held


The Labour Court held that the CCMA’s jurisdiction to make a settlement agreement an arbitration award under section 142A does not depend on the CCMA first deciding and granting condonation for a late referral under section 191(2). For section 142A purposes, it is sufficient that a dispute has been referred and that it is of a kind that is capable, within the LRA framework, of being referred to arbitration or adjudication once procedural prerequisites are met.


Applying this interpretation, the court held that the commissioner did not act without jurisdiction, nor ultra vires, in making the settlement agreement an arbitration award and in certifying the award. The review application was therefore dismissed, with costs awarded against the employer.


LEGAL PRINCIPLES


Section 142A(1) requires, as a jurisdictional foundation, that a dispute has been referred to the CCMA; it does not require proof that the referral was timeous or that condonation has already been granted before a settlement agreement can be converted into an arbitration award.


The phrase “right to refer” in section 142A(2) (mirroring the phrase used in section 158(1A)) is not confined to a strict, immediately exercisable entitlement. It encompasses disputes that are, by their nature, amenable to the LRA dispute-resolution system and could be referred once applicable procedural prerequisites have been satisfied.


An interpretation that would discourage early settlement or render settlements practically unenforceable through LRA mechanisms is inconsistent with the LRA’s objects of speedy, efficient, and cost-effective dispute resolution, and should be avoided where the statutory text supports a broader construction.


In costs, the Labour Court applies the statutory standard of law and fairness, and may order costs against a party where fairness so requires, including where litigation is pursued despite clear binding appellate authority.

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[2019] ZALCCT 42
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CT International Financiers (Pty) Ltd v van Rooyen and Others (C595/18) [2019] ZALCCT 42 (12 December 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
Case
no: C595/18
In
the matter between:
CT
INTERNATIONAL FINANCIERS (PTY) LTD

Applicant
and
MADELAINE
VAN ROOYEN

First Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION.

Second Respondent
VUSUMZI
LANDU
N.O.
Third Respondent
SHERIFF
FOR THE LABOUR COURT
FOR
THE DISTRICT OF GOODWOOD

Fourth Respondent
Date
heard:  30 October  2019
Delivered:
12 December  2019
Summary:
Application in terms of section 142A – Condonation for late
referral of a dispute to the CCMA not required in order
to give the
CCMA jurisdiction to make a settlement agreement an arbitration
award.
JUDGMENT
CONRADIE,
AJ
[1]
This is an application in terms of section 145 of the Labour
Relations
Act 66 of 1995 (LRA) to review and set aside two rulings
made under case number WECT4616-18.
[2]
In terms of the first ruling, the commissioner made a settlement
agreement
an arbitration award in terms of section 142A of the Labour
Relations Act of 1995 (the LRA).  In the subsequent ruling, the

commissioner certified the award in terms of section 143 of the LRA.
[3]
The applicant (the employer) argues that the second respondent (the
CCMA)
lacked jurisdiction over the dispute as it had not determined
the condonation application and as such the commissioner could not

make the settlement agreement an arbitration award and subsequently
certify the award.
Background
facts
[4]
The first respondent (the employee) was employed at the employer as
its
HR Manager.
[5]
The employee tendered her resignation on 7 July 2017 and left the
employer’s
employ on 4 August 2017.
[6]
On 13 March 2018 the employee referred an unfair dismissal dispute
(constructive
dismissal) to the CCMA alleging that the dispute arose
on 1 September 2017.
[7]
Given that the employee’s referral was approximately 150 days
late,
the employee brought an application for condonation for the
late referral of the dispute, which was subsequently set down for
hearing
on 3 April 2018.
[8]
On 3 April 2018, Andrea Scholtz, the current HR Manager of the
employer,
and a representative from NEASA, an employer’s
organization, represented the employer at the CCMA.
[9]
Prior to the determination of the point
in limine
, the
commissioner appointed to hear the matter, enquired whether there was
any possibility of settlement.  Following some
negotiations
between the parties, they agreed to settle the dispute on the basis,
inter alia,
that the employer would pay the employee a
settlement amount of R200 000.00 by no later than 6 March 2018.
The agreement
was reduced to writing using the CCMA’s
settlement agreement template.
[10]
As it turned out, the employer did not pay the employee as agreed,
and as a result, on
8 May 2018 the employee applied to have the
settlement agreement made an arbitration award in terms of section
142A of the LRA.
[11]
On 23 May 2018 the settlement agreement was made an arbitration award
by the commissioner.
Following on this, the employee applied to
have the award certified in terms of section 143 of the LRA.
The employer
opposed the application for certification on the basis
that “
the settlement agreement was entered into without the
express mandate or approval of Mr Michael Russon who is the Managing
Director
of the respondent
”.
[12]
The arbitrator found that:
“
10. A
settlement agreement entered into before the CCMA between the parties
is legally binding and enforceable and means that the
dispute that
was referred to the CCMA has been resolved.
11.The effect of a
settlement agreement is that the CCMA lacks jurisdiction to set it
aside and only the labour court has such competency.
The
respondent in its opposing application seems to suggest that because
its representative was not mandated to enter into such
settlement
agreement, the same must be set aside by the CCMA and the matter
heard afresh.
12.  I have
difficulties with the respondent’s submissions for the
following reasons: Firstly the respondent’s
founding affidavit
is not accompanied with any confirmatory affidavit of the
representative to whom it alleges had no power or
authority to enter
into such an agreement, and on this basis alone this opposing
application should fail.  Secondly it could
be an absurd
situation if the CCMA were to set aside validly entered settlement
agreements on the basis that the respondent’s
representative
did not have the necessary authority, Commissioners cannot be
expected to probe further the extent of the authority
that the
representative parties have before concluding settlement agreements.
13   In the
circumstances the respondent’s opposing application stands to
fail as there is no basis in law why this
arbitration award should
not be certified in terms of
section 143
of the
Labour Relations Act
as
amended”.
[13]
The CCMA found in favour of the employee and the award was certified.
Grounds
of review
[14]
The employer seeks to review the award and certification thereof on
the following grounds:
14.1
The CCMA lacked the necessary jurisdiction to make the settlement
agreement an arbitration award
under
section 142A
of the LRA and to
certify the award under
section 143
of the LRA because the arbitrator
failed to make a ruling on condonation for the late referral.
The CCMA was therefore unable
to exercise its powers in terms of
section 142A
and
section 143
of the LRA because it lacked
jurisdiction to do so.
14.2
The arbitrator acted
ultra vires
in granting the applications
in terms of
section 142A
and
section 143
of the LRA.
[15]
The employer submits that since the dispute was in relation to an
unfair dismissal,
section 191
of the LRA requires compliance with two
prerequisites before dispute resolution can take place at the CCMA,
namely:
15.1
Disputes must be referred within 30 days of the date of
dismissal.  However, the CCMA
may permit an employee to refer a
dispute after the 30-day period has expired, if the employee shows
good cause.
15.2
The employee must satisfy the CCMA that the referral has been served
on the employer.
[16]
It was further submitted that the CCMA’s failure to address the
in limine
point and grant condonation for the late referral
essentially nullified its jurisdiction to entertain the dispute.
[17]
The CCMA was therefore not competent to exercise its powers in terms
of
section 142A
and
section 143
of the LRA.  Essentially, the
failure to comply with
section 191
(where condonation is not granted)
would mean that the CCMA, by making the settlement agreement an
arbitration award and certifying
it, was in contravention of Rule 14
of the CCMA Rules which requires a referring party to prove that the
CCMA has jurisdiction
to conciliate a dispute.
Applicable
sections of the LRA
[18]
It is useful to quote the following sections of the LRA which have
a bearing on this judgment.
[19]
Section 142A of the LRA provides as follows-
“
142A
Making settlement agreement arbitration award
(1)
The Commission may, by agreement between the parties or on
application by a party, make any settlement agreement in respect
of
any dispute that has been referred to the Commission, an arbitration
award.
(2)
For the purposes of subsection (1), a settlement agreement is a
written agreement in settlement of a dispute that a party has
the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is entitled to refer to arbitration
in terms of
either section 74(4) or 75(7).
[S.
142A inserted by s. 31 of Act No. 12 of 2002.]”
[20]
Section 158 of the LRA provides as follows –
158
Powers of Labour Court
(1)
The Labour Court may—
(c)
make any arbitration award or any settlement agreement an order of
the Court;
[Para.
(c) substituted by s. 36 (a) of Act No. 12 of 2002.]
(1A)
For the purposes of subsection (1) (c), a settlement agreement is a
written agreement in settlement of a dispute that a party
has the
right to refer to arbitration or to the Labour Court, excluding a
dispute that a party is only entitled to refer to arbitration
in
terms of section 22 (4), 74 (4) or 75 (7).
[Subs.
(1A) inserted by s. 36 (c) of Act No. 12 of 2002.]
[21]
Section 191 of the LRA provides as follows –
“
191.
Disputes about unfair dismissals and unfair labour practices
—
(1)
(a) If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer the
dispute in writing to—
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction.
(b)
A referral in terms of paragraph (a) must be made within—
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss
or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,

within 90 days of the date on which the employee became aware of the
act or occurrence.
[Subs.
(1) substituted by s. 46 (b) of Act No. 12 of 2002.]
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
relevant time limit in subsection (1) has expired.
[Subs.(2)
substituted by s. 46 (c) of Act No. 12 of 2002.]
Analysis
[22]
Section 191(1)(a) gives an employee the right to refer an unfair
dismissal dispute to the
CCMA or a bargaining council.
Subsection (1)(a) creates the right of referral.  Subsection
(1)(b) stipulates that the
referral must be made within 30 days of
the date of dismissal.  Subsection (2) allows for the CCMA or
bargaining council to
condone a late referral.
[23]
All that section 142A(1) requires is that the dispute has been
referred to the CCMA or
bargaining council.  Whether or not it
has been timeously referred or is indeed capable of determination is
not relevant.
Subsection (2) defines a settlement agreement as
“
a written agreement in settlement of a dispute that a party
has the right to refer to arbitration or to the Labour Court”.
All that this subsection is concerned with is that the
dispute is one which is capable of resolution by the CCMA or a
bargaining
council.  In other words, that it is a labour
dispute, and everything else being equal, it is a dispute in general
that is
capable of referral to arbitration or the Labour Court.
This, as opposed to a specific dispute meeting all the requirements,

in order for it to be capable of determination by the CCMA/bargaining
council or the Labour Court.
[24]
It cannot be that when the CCMA, which was created to speedily
resolve disputes, is alerted
to a possible settlement of a dispute,
it must first require the parties to apply for condonation, instead
of finally settling
the matter.  If this were the case, the
parties, instead of bringing the matter to finality, would have to
delay immediate
settlement in order for the CCMA to deal with the
condonation issue.  This is absurd.  An employer who
arrives at the
CCMA ready to settle may change its mind if informed
by a commissioner that the employee must first apply for and be
granted condonation.
This may encourage the employer to oppose
the granting of condonation in the hope that the outcome may mean
that no settlement
is required.  An employee would also be
compelled to apply for condonation, failing which, any settlement
agreement concluded
with the assistance of the CCMA will not be
capable of being made an arbitration award and certified by the CCMA.
[25]
In my view,
the decision of the Labour Appeal Court (LAC) in
Greeff
v Consol Glass (Pty) Ltd
[1]
is
fatal to the employer’s case.
25.1
In
Greef
the LAC had to consider whether to uphold a
retrenchment agreement made an arbitration award, which had not been
referred for adjudication
to the Labour Court.  Greef was
employed as an account manager with Consol Glass in 2010.
Subsequently, Consol Glass
embarked on a section 189 retrenchment
process which led to the parties concluding a severance agreement
(the settlement agreement).
25.2
According to the settlement agreement, Greef’s effective date
of termination was 30 November
2010, but she was only required to
work until 31 October 2010, if there was a timeous handover of
duties.
Greef secured new employment and
told Consol Glass she would be leaving on 18 October 2010.
Consol
Glass
responded by stating that Greef had
effectively overridden the settlement agreement by resigning with
immediate effect, notwithstanding
that she was required to work till
31 October 2010.  As a result, the settlement agreement would no
longer apply.
25.3
Greef requested the CCMA to make the settlement agreement an
arbitration award in terms of section
142A, which it did.
Consol Glass took the matter on review to the Labour Court which set
aside the award on the basis,
inter alia
, that as a dispute
was not referred to the CCMA that body was not empowered to make the
agreement an arbitration award in terms
of s142A.
25.4
Greef then
approached the Labour Court and asked it to make the settlement
agreement an order of court in terms of section 158(1)(c).
The
Labour Court opted to follow the approach in
Molaba
and & others v Emfuleni Local Municipality
[2]
,
where
s158(1)(c) of the LRA was narrowly interpreted to the effect that
settlement agreements referred to in that section were limited
to
agreements that were concluded after a dispute had been referred to
the Labour Court for adjudication.  As Greef’s
dispute had
not been referred to the court for adjudication, her application was
dismissed.
25.5
On appeal, Greef argued that there was no
requirement for a dispute to be referred to the CCMA before it could
be made an order
of the Labour Court and that since
Consol
Glass
had not applied to 'any appropriate
forum' to set aside the agreement, the Labour Court had the power to
make the agreement an order
of court.
25.6
The main thrust of
Consol Glass’s
argument was that Greef had repudiated the
agreement by not complying with the obligations imposed on her and it
would similarly
not comply.  Greef through her actions had
cancelled the agreement.  Consol Glass further argued that since
the employee
already referred the matter to the CCMA it could not
also be ventilated in the Labour Court.
25.7
The LAC found in favour of Greef and held as follows:
“
[19] It is thus
clear from a reading of s158(1A) that s158 (1)(c) must be read with
and subject to s158(1A). Even though s158(1)(c)
refers to ‘any
settlement agreement’ this cannot be taken to mean, literally,
‘any’ settlement agreement.
Section 158(1A)
describes what settlement agreements are being referred to in
s158(1)(c). So properly interpreted, in terms of
s158(1)(c), read
with s158(1A), the Labour Court may make any arbitration award an
order of court and may only make settlement
agreements, which comply
with the criteria stated in s158(1A), orders of court.  A
settlement agreement that may be made an
order of court by the Labour
Court in terms of s158(1)(c), must (i) be in writing, (ii)be in
settlement of a dispute (i.e. it must
have as its genesis a dispute);
(iii) the dispute must be one that the party has a right to refer to
arbitration, or to the Labour
Court for adjudication, in terms of the
LRA; and (iv)the dispute must not be of the kind that a party is only
entitled to refer
to arbitration in terms of s22(4), or s74(4) or
s75(7). Those kinds of dispute are excluded.
[20] …
[21] …
[22] Conciliation is a
jurisdictional pre-requisite before a dispute, of the kind referred
to in s191 of the LRA, may be referred
to a council or the CCMA for
arbitration, or to the Labour Court for adjudication.  The
question that prominently arises in
this regard is whether an
employee can be said to have ‘a right to refer’ the
matter to arbitration by the CCMA or
council, or to the Labour Court
for adjudication, in terms of s191, where there has been no referral
of the dispute to the CCMA,
or the council (as the case may be), or
30 days have not elapsed since the dispute was referred to the
council or CCMA and those
bodies have not certified that the dispute
remains unresolved?  The majority in NUMSA v Driveline
Technologies (Pty) Ltd and
another
[3]
held
that the employee did not have a right of referral in those
circumstances. However the court there was not interpreting the
word
‘right’ or the phrase ‘right to refer’ in
s158(1A) and was clearly referring to an employee’s
entitlement
to refer the dispute, as contemplated in s191(5) of the LRA and
construed that entitlement in the strictest sense as
‘a legal
right’ open to immediate exercise. Does the word ‘right’
as it is used in s158(1A) have the same
strict meaning?
[23] In Bramley, Faber
AJ dealt with this issue, although obiter, and came to following
conclusion:
‘
In short I am
of a persuasion that the words “the right to refer” in
section
158(1A) are not to be
construed in a narrow, literal sense so as to equate to a right which
is open to immediate exercise. In my
judgment, it connotes a far
wider concept, such as an entitlement which may only fall to be
exercised once the prerequisites for
doing so have been satisfied.
Thus, provided only that the dispute is of a kind which is amenable
to adjudication by the Commission
or the court in terms of the
structure of the Act, albeit not as a matter of immediacy, but once
the prerequisites for such adjudication
have been satisfied, a
settlement in relation thereto maybe made an order in terms of
section 158(1)(c), irrespective of the date
of its conclusion.  This
construction does no violence to the wording of section 158(1A).  As
previously indicated, it
has been recognised that the word “right”
in the language of the law may be used in a wider and laxer sense and
not
in the sense that it is synonymous with the concept of a “legal
right”, correlating to a duty or obligation. It is in
this
wider sense that the word “right” is in my judgment used
in section 158(1A) of the Act. It follows,in my view,
that the
character of the right referred to in section 158(1A) is such that it
need not be open to immediate exercise, but may
be invoked at
sometime in the future when the pre-requisites therefore have been
fulfilled. It nonetheless is something which is
extant in the sense
that, bar a subsequent resolution of the matter, the machinery of
referral may be resorted to.’
[24] Making settlement
agreements orders of court may be regarded  as important for the
protection of the rights of the parties
to the settlement. It not
only facilitates and enables execution through court processes, but
would enable an aggrieved party to
institute contempt proceedings if
the order of court is not complied with. If the word 'right' in s
158(1A) were to be given a
strict meaning, consequences would ensue
that cannot be said to be consistent with the aims and objects of the
LRA. With regard
to the kinds of dispute envisaged in s 191 of the
LRA — the power of the Labour Court to make settlements orders
of court
would be limited to those settlements entered into after
failed conciliation and a certificate has been issued to that effect,
or in respect of which 30 days elapsed from the date the dispute was
referred to the council or CCMA, but which remained unresolved.

Parties would be reluctant to enter into settlement agreements before
the aforementioned events have occurred, because they would
not be
able to make their agreements orders of court.
Since the
identical phrase, 'right to refer', is also found in s 142A(2), the
same would apply in respect of settlements which parties
wish to make
awards in terms of s 142A of the LRA. The only settlement agreements
that the CCMA would be empowered to make awards
would be those
concluded after failed conciliation and a certificate had been issued
to that effect, or 30 days had elapsed since
the dispute had been
referred to the CCMA and the dispute remains unresolved
[my emphasis]
.
Giving a strict meaning to the word
'right' in s 158(1A) would have the effect of differentiating between
those settlements concluded
before and those concluded after the
statutory events pertaining to conciliation had occurred. Other than
purporting to limit the
potential number of applications to make
settlements orders of court, there appears to be no rational basis
for such differentiation.
Moreover, any retardation, or
discouragement of the early settlement of disputes is not consistent
with the objects of the LRA,
namely, the resolution of disputes as
speedily as possible, in an efficient and cost effective manner.
Lingering, unsettled disputes
are not conducive to stability in the
workplace and militate against the principle aims of the LRA in that
respect
[my emphasis]
.
[25]
Accordingly,
I am in agreement with the conclusion of the court in Bramley
regarding the meaning of the phrase 'right to refer'
in s 158(1A). It
needs only to be established, for the purposes of compliance with
that section, that the dispute is of a kind,
if unresolved and once
all the procedural requirements have been met, which may be referred
to arbitration, or to the Labour Court
for adjudication. It does not
have to be established that there is a 'right of referral', in the
strict sense of a legal right
capable of immediate exercise”
[my emphasis]
.
[26]
Even though
it was overturned by the LAC, Mr Bosch, on behalf of the employer,
sought to rely on the Labour Court‘s decision
in
Greef
[4]
to the effect that the CCMA lacked jurisdiction to make a settlement
agreement an arbitration award in terms of section 142A because
the
dispute which had been settled had not been referred to the CCMA as
required by section 142A.  He sought to distinguish
the LAC’s
decision on the basis that it was dealing with making a settlement
agreement an order of court in light of the
wording of section
158(1A) as opposed to dealing with section 142A.  This argument
does not hold water.  The same considerations
and reasoning
which the LAC applied in respect of section 158(1)(c) applies equally
in respect of section 142A, if not more so,
given that the CCMA, and
bargaining councils, are at the coal face of the resolution of
disputes.  In fact, at paragraph 24
of its judgment, the LAC
refers to the similarities between the two sections.  According
to the LAC “
Since
the identical phrase, 'right to refer', is also found in s 142A(2),
the same would apply in respect of settlements which parties
wish to
make awards in terms of s 142A of the LRA. The only settlement
agreements that the CCMA would be empowered to make awards
would be
those concluded after failed conciliation and a certificate had been
issued to that effect, or 30 days had elapsed since
the dispute had
been referred to the CCMA and the dispute remains unresolved”.
[5]
[27]
While I agree with the applicant that there are certain criteria
“
that allows one to unlock the door to the CCMA
”,
one should not lose sight of one of the main purposes of the CCMA,
and the LRA for that matter, namely, speedy dispute
resolution.  To
require every litigant to argue points
in limine
prior to
concluding a settlement agreement would go against this very purpose,
quite simply it is a specious argument.
[28]
The enforcement of arbitration awards is also a major challenge for
employees.  This
has resulted in amendments to the LRA which are
aimed at making the enforcement of awards easier.  If accepted,
the arguments
advanced by the employer in this case will ultimately
frustrate the speedy resolution of disputes because even though the
parties
have settled their dispute, employees would not have access
to the enforcement mechanisms in the LRA.  It is telling that in

this case the settlement agreement was already concluded as far back
as 3 April 2018.
[29]
In the circumstances, I am of the view that there is no basis on
which to interfere with
the rulings made by the commissioner and the
review application must fail.
Costs
[30]
The clear impression that one gets is that the employer, after
signing the settlement agreement,
did not wish to honour it.  I
say this for the following reasons –
29.1
Prior to approaching this court, the employer never challenged the
CCMA’s
lack of jurisdiction as a result of its failure to
condone the late referral of the employee’s dispute.  The
opposition
to the certification of the award was solely on the basis
that Scholtz lacked the authority to conclude the settlement
agreement
at the CCMA.
29.2
Although the employer blames Scholtz, it does not tell this court
what position
she holds in the company.  This is revealed by the
employee in her answering affidavit.  The reason for this may be
that
it is difficult to argue that the Human Resources Manager lacked
authority to settle the dispute.
29.3
The employer also does not mention that Scholtz was accompanied by a
representative
of NEASA , an employers’organisation.  The
reason for this  may be that it becomes even more difficult to
argue
lack of authority when Scholtz was accompanied by a
representative of the employers’ organisation.
29.4
No mention is made of what action, if any, was taken against
Scholtz
for, on the employer’s version, exposing the company to
a R200 000 settlement payment, and of course, there is no
confirmatory
affidavit from Scholtz.
29.5
The employer has not, at least as far as this Court is aware of,
sought to
set the settlement agreement aside.  In fact, during
argument, it was emphasised that the agreement would not be affected
if the rulings are reviewed and set aside.  Of course, the end
result would be to leave the employee with an agreement which
is not
capable of enforcement through the speedy and cost effective
mechanisms in the LRA.  The employee would have to institute

civil action against the employer to try and recover the money owing
to her.  The response to such civil action may be in
the form of
the employer disputing that it is bound by the agreement because its
representatives lacked the necessary authority
to enter into the
agreement.  Such a response will mean a long and costly road for
the employee in order to resolve what is
an employment law dispute.
This is exactly the position which employees are not supposed to find
themselves in, post the
introduction of the LRA.
[31]
While my
decision to dismiss the review application is not dependant on the
above factors I do believe that it has a bearing on
costs.  The
employer asks for costs to follow the result.  The employee asks
for costs on a punitive scale in order to
give effect to the
principle of dissuading litigants from bringing frivolous and
vexatious matters before the courts.  In
Sibongile
Zungu v Premier of the Province of KwaZulu-Natal and Others
[6]
the Constitutional Court
referred to the decision of
Zondo
JP in Dorkin
where
he stated the following:
“
The
rule of practice that costs follow the result does not govern the
making of orders of costs in this Court. The relevant statutory

provision is to the effect that orders of costs in this Court are to
be made in accordance with the requirements of the law and
fairness.
And the norm ought to be that costs orders are not made unless the
requirements are met.
In
making decisions on costs orders this Court should seek to strike a
fair balance between on the one hand, not unduly discouraging

workers, employers, unions and employers’ organisations from
approaching the Labour Court and this Court to have their disputes

dealt with, and, on the other, allowing those parties to bring to the
Labour Court and this Court frivolous cases that should not
be
brought to Court
.”
[7]
[32]
I am of the view that this case should not have been brought to this
court, particularly
in light of the clear authority of the LAC in
Greef
.  I believe that the requirements of law and
fairness dictate that, in this case, costs should follow the result.
[33]
In the circumstances, the following order is made-
Order
1.
The review application is dismissed with costs.
_________________
BN.
Conradie
Acting
Judge of the Labour Court
Appearances:
Applicant:

Advocate CS Bosch
Instructed
by:
Fairbridges Wertheim Becker Attorneys
First
Respondent:    S Khoza
Instructed
by:
Ruach Attorneys
[1]
(2013)
34 ILJ 2835 (LAC).
[2]
[2009]
7 BLLR 679 (LC).
[3]
[2007] ZALC 66
;
[2000]
1 BLLR 20
(LAC).
[4]
Consol
Glass (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & Others [2012] 1 BLLR 42 (LC).
[5]
At
para 24.
[6]
[2018]
ZACC 1.
[7]
At
para 24.

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