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[2019] ZALCPE 18
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Goliath v Rocklands Poultry Loss Control/Sovereign Foods (P295/15) [2019] ZALCPE 18 (7 November 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Reportable
case
No: P295/15
In
the matter between:
GRAHAM
GOLIATH
Applicant
and
ROCKLANDS
POULTRY LOSS CONTROL/
SOVEREIGN
FOODS
Respondent
Heard:
17 October 2019
Delivered:
7 November 2019
Summary:
The arbitration award in terms of which the applicant was
retrospectively reinstated constitutes
a debt to which the provisions
of the
Prescription Act 68 of 1969
are applicable. The period of
prescription starts running when the applicant is dismissed and
interrupted when the dismissal dispute
is referred to the CCMA for
conciliation. To the extent that there was no application to review
the arbitration award, interruption
of prescription ceased when the
award was issued. The award gave rise to a new period of prescription
of 30 years. When the applicant
filed this application, his award had
not prescribed and is still enforceable
The respondent’s
challenge to the jurisdiction of this Court to hear the matter on the
basis that it was not joined when the
matter was referred to
conciliation is without merit. The principles laid down in
NUMSA
v Intervalve (Pty) Ltd and Others
[1]
are
not applicable in the absence of an order to review and set aside the
joinder ruling and the arbitration award in terms of which
the
respondent was found to be the applicant’s employer. Both the
joinder ruling and the arbitration award are binding on
the parties.
The award is made an
Order of Court.
JUDGMENT
MAHOSI.J
Introduction
[1]
This
is an opposed application
in
terms of section 158(1)(c) of the Labour Relations
Act
[2]
(LRA), to make the arbitration award dated 13 February 2012 issued
under the auspices of the Commission for Conciliation, Mediation
and
Arbitration (CCMA) under case number ECPE3115-11 an Order of Court.
[2]
Before this Court are also the applications to condone the late
filing of the respondent’s
answering affidavit and the
applicant’s replying affidavit. In the absence of the Notice of
Objection to the late filing
of both affidavits, there was no need
for both parties to apply for condonation of the late filing of such
affidavits.
[3]
[3]
Prior to outlining the applicant’s case in detail and
considering the issues
that gave rise to the claim, it is necessary
to summarise the facts that form the relevant background to the
dispute between
the parties.
Material background
facts
[4]
The applicant commenced employment with the respondent on 31 October
2010 and was
dismissed on 12 May 2011. Aggrieved by his dismissal,
the applicant referred an unfair dismissal dispute to the CCMA. In
his referral,
the applicant cited True Labour Concept as the
employer. The matter was set down for con/arb process that was
scheduled for 13
September 2011. It is not clear what transpired on
the 13 September 2013. What is clear is that the respondent was
joined in the
proceedings in terms of the joinder ruling that was
issued on 21 September 2011. The dispute could not be resolved
through conciliation
after which it was referred for arbitration.
[5]
The arbitration was scheduled for and held on 9 February 2012.
Subsequently, the arbitration
award dated 13 February 2012 was issued
in terms of which the applicant’s dismissal was found to be
procedurally and substantively
unfair. In his award, the commissioner
further found the respondent to be the true employer of the
applicant. As a result, the
respondent was ordered to reinstate the
applicant restrospectively by not later than 29 February 2012 and to
pay him back pay amounting
to R18 841.95.
[6]
To date, the respondent has not reinstated the applicant. Instead,
the respondent
only paid the applicant’s back pay around 2014.
It is the reinstatement part of the award that the applicant seek to
make
an Order of Court.
The
applicant’s submissions
[7]
It is the applicant’s case that he could not immediately reap
the fruits of
the award because the respondent failed to comply with
the award and further that the respondent failed to provide adequate
explanation
for such failure. It is common cause that the respondent
partially complied with the award, albeit some two years after the
said
award was issued in that it paid the compensation amount, but
failed to reinstate the applicant to its employ on the same terms
and
conditions as those that were applicable as at the time of his
dismissal.
[8]
The applicant’s contention is that he attempted on several
occassions to enforce
the terms of the award upon the respondent, but
to no avail. In this regard the applicant gives a detailed chronology
of such attempts,
particularly in the replying affidavit, which
attempts date back as far as 24 February 2012. Despite such numerous
attempts by
the applicant to enforce the award and despite the
partial compliance therewith by the respondent, the applicant has
still not
been reinstated to the respondent’s employ as was
ordered as early as February 2012. It is for this reason that the
applicant
seeks an order to make the said award an order of this
Court.
The
respondent’s submissions
[9]
The respondent opposed this application on five grounds, namely:
non-service of the
application, prescription, settlement and
non-joinder. At the hearing of the matter, the points relating to
non-service of the
application and settlement were abondoned by the
respondent. The issues remaining for determination are whether the
applicant’s
caim for reinstatement has prescribed and whether
the applicant can seek relief against the respondent in the absence
of a proper
referral to conciliation against the respondent.
Does
Prescription Act apply
to litigation
involving
unfair dismissal claims that are brought under the LRA?
[10]
The respondent’s contention is that the applicant is no longer
entitled to the fruits of the
reinstatement award on the basis that
his claim, in terms of the award, has prescribed as more than three
years has passed since
the award was issued.
[11]
That leaves the question whether arbitration awards constitute a debt
as contemplated by the
Prescription Act
[4
]
and whether the
arbitration
award
in
terms of which the applicant was reinstated has prescribed
on the expiry of three years from the date on which it was published
.
This issue was considered in
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
and Others
[5]
(
Myathaza),
but
the Court was equally divided on the issue.
[12]
In
Mogaila
v Coca Cola Fortune (Pty) Ltd
[6]
(Mogaila),
the
applicant, Ms Mogaila, sought an order that the
Prescription Act
is
not consistent with the LRA and that an order of reinstatement
granted in her favour does not constitute a “debt” for
the purposes of the
Prescription Act. The
Court unianimously allowed
Mogaila direct access, decided the application without written
submissions or oral argument and found
as follows:
‘
[27]
Because of the parity of votes in
Myathaza
,
in which none of the judgments secured a majority, no binding basis
of decision (ratio) emerges from the Court’s decision.
But, on either approach, that of Jafta J and Zondo J, or that of
Froneman J, Ms Mogaila is entitled to an order declaring that
the
arbitration award ordering her reinstatement has not prescribed.
She is entitled to secure its certification
under
section 143(3)
of
the LRA, and its enforcement under
section
143(1).
[28]
Whether the arbitration award in her favour could not have prescribed
because the
Prescription Act
does
not
apply at all to LRA matters, as the first and third judgments held
(or because, even if that statute were applicable,
the reinstatement
order was “not an obligation to pay money, deliver goods or
render services”), or because, as the
second judgment held, the
CCMA referral interrupted prescription, persisting until the
finalisation of the review proceedings in
October 2013, Ms Mogaila
must succeed.
[29]
On the second judgment’s approach, the arbitration award would
have prescribed only in
October 2016. Ms Mogaila filed her
application in this Court timeously, in April 2016.
Prescription was therefore interrupted,
again, pending the
finalisation of these proceedings. On either approach, Ms
Mogaila is entitled now to proceed with the
certification of the
award
under
section
143
of the
LRA.’
[13]
It is clear from the above that the Court did not determine whether
the
Prescription Act is
inconsistent with the LRA or that
reinstatement granted in Mogaila’s favour constitutes a “debt”
for the purposes
of the
Prescription Act. Instead
, the Court relied
on
Myathaza
and held that “
on
either approach, that of Jafta J and Zondo J, or that of Froneman J,
Ms Mogaila was entitled to an order declaring that the arbitration
award ordering her reinstatement has not prescribed.”
[14]
In
FAWU
obo Gaoshubelwe v Pieman’s Pantry (Pty) Ltd
[7]
(Gaoshubelwe)
the
Court had to determine whether
the provisions of the
Prescription Act apply
to litigation involving
unfair dismissal claims that are brought under the LRA. On the
issue whether a dismissal
claim constituted a debt, the Court
reiterated
the legal position that was held by Froneman J in
Myathaza
[8]
and
found as follows:
‘
If
regard is had to this, then it must follow that a claim for dismissal
is, as pointed out in the second judgment in
Myathaza
,
a claim that seeks to enforce three possible kinds of obligations
against an employer: reinstatement, re-employment, and compensation.
All three obligations fit neatly within the definition of debt
that
Escom
and
Makate
accepted,
as they constitute either an obligation to pay or render
something.’
[9]
[15]
On the question whether the
Prescription Act is
consistent with
the LRA, the Court stated as follows:
‘
[179]
The time periods in the LRA and in
the
Prescription Act regulate
different features of the litigation
process and are not only reconcilable but can exist in harmony
alongside each other.
[180]
The application of the
Prescription
Act to
the LRA would advance the speedy resolution of employment
disputes by firstly, leaving wholly intact the mandated time periods
for referrals that
section 191
provides for. The application of
the
Prescription Act cannot
have as an unintended consequence
the implied extension of those time periods to coincide with the
period of prescription.
Secondly, subjecting claims under the
LRA to an outer time limit would considerably enhance the efficiency
of the dispute resolution
process. Placing an outer limit
beyond which the litigation process simply cannot continue prevents
employment disputes from
being litigated after a considerable passage
of time. This may impact negatively on both the quality of
adjudication as well
as the important policy considerations that
relate to the quick and speedy resolution of employment related
disputes, the ability
of workers to continue to earn a living, as
well as the ongoing ability of businesses to continue operating.
[181]
For these reasons, I must also
conclude, regard being had to
section 210
of the LRA, that the
provisions of the LRA are not in conflict with the provisions of the
Prescription Act. It
must follow that if there is no
inconsistency then,
a
fortiori
(with stronger
reason), there can be no conflict. The definition of conflict
is a considerably higher bar to meet than
the consistency evaluation
which I have undertaken. I also conclude that the existence of
conflict between the two statutes
has not been established.’
[16]
In light of the above, it follows that a claim for dismissal is a
debt as it seeks to
enforce
three possible kinds of legal obligations against an employer,
namely: reinstatement, re-employment and compensation.
Therefore,
the applicant’s award in terms of which he
was reinstated is a debt and the provisions of the
Prescription Act
are
applicable thereto. That being the case, the next enquiry is
whether the prescription period was interrupted.
When
does the prescription period begin to run and what interrupts it?
[17]
Section 15
of the
Prescription Act deals
with the judicial
interruption of prescription and it reads:
‘
(1)
The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor
of any
process whereby the creditor claims payment of the debt.
(2) Unless the debtor
acknowledges liability, the interruption of prescription in terms of
subsection (1) shall lapse, and the running
of prescription shall not
be deemed to have been interrupted, if the creditor does not
successfully prosecute his claim under the
process in question to
final judgment or if he does so prosecute his claim but abandons the
judgment or the judgment is set aside.
(3)
If the running of prescription is interrupted as contemplated in
subsection (1) and the debtor acknowledges liability, and the
creditor does not prosecute his claim to final judgment, prescription
shall commence to run afresh from the day on which the debtor
acknowledges liability or, if at the time when the debtor
acknowledges liability or at any time thereafter the parties postpone
the due date of the debt, from the day upon which the debt again
becomes due.
(4)
If the running of prescription is interrupted as contemplated in
subsection (1) and the creditor successfully prosecutes his
claim
under the process in question to final judgment and the interruption
does not lapse in terms of subsection (2), prescription
shall
commence to run afresh on the day on which the judgment of the court
becomes executable.
(5)
If any person is joined as a defendant on his own application, the
process whereby the creditor claims payment of the debt shall
be
deemed to have been served on such person on the date of such
joinder.
(6)
For the purposes of this section, “process” includes a
petition, a notice of motion, a rule
nisi
,
a pleading in reconvention, a 30 party notice referred to in any rule
of court, and any document whereby legal proceedings are
commenced.’
[18]
In
Gaoshubelwe
, the Court considered
whether the
commencement of proceedings before the CCMA constitutes the service
of a process as contemplated in
section 15(6)
of the
Prescription Act
and
held that:
‘
[203]…
it matters not that the process that constitutes a referral to
conciliation does not result in a judgment. It
may still, and
does indeed, constitute the commencement of proceedings for the
enforcement of a debt.
[204]
For
these reasons, I would conclude that, although prescription began to
run when the debt became due on 1 August 2001, it was interrupted
by
the referral of the dispute to the CCMA on 7 August 2001 and
continued to be interrupted until the dismissal of the review
proceedings by the Labour Court on 9 December 2003.
Accordingly, when the dispute was referred to the Labour Court
for
adjudication on 16 March 2005, it clearly had not prescribed.
It is for these reasons that the appeal must succeed.’
[19]
From the above, it is apparent that the legal position is that
prescription begins to run when the
applicant is dismissed and it is
interrupted by the referral of the dispute to conciliation and
continues to be interrupted
until
the dismissal of the review proceedings by the Labour Court. However,
this matter is distinguishable from
Gaoshubelwe
as
the latter related to a dismissal claim. It is
further distinguishable from
Myathaza and Mogaila
as the
award, in the current matter, was not taken on review.
[20]
As aforesaid, the respondent in this matter partially
complied with the arbitration award, albeit two years later, by
paying the
applicant his back pay, but failed to reinstate him.
[21]
That leaves the question; when does the prescription period begin to
run and what interrupts it, in
a case where the award was not
challenged on review? In
Motsoaledi
and Others v Mabuza
[10]
(Motsoaledi),
although the issue relating to an unfair labour practice, the Court
considered the prescription period of the arbitration award
which was
not taken on review and stated as follows:
‘
[27]
The reasoning in
Myathaza
suggests
that the interruption of prescription ceases when the award is
published because the publication of the award gives rise
to a new
prescription period of 30 years. This follows from the observation
made in the judgment at para 71:
‘
Where
a debt is the object of a dispute subjected to arbitration the period
of prescription is delayed. The award of an arbitrator
in terms of an
arbitration agreement has the status of a court order between the
parties and the applicable prescription period
is that which is
applicable to a judgment debt. There seems little reason why parties
subjected to statutory arbitration should
not enjoy similar
protection in respect of arbitration awards in their favour.’
[28]
It follows that on the application of
Froneman’s judgment in
Myathaza
to the facts of this appeal the award gave rise to a new period of
prescription of 30 years. This period had not expired when the
respondent’s application to hold the appellant in contempt of
court was served.
[22]
The above judgments are binding on this Court. On the application of
the
Myathaza, Mogaila, Gaoshubelwe
and
Motsoaledi
to
the facts of this case, the prescription began to run when debt
became due, which is when the applicant was dismissed on 12 May
2011
and was interrupted by the referral of the dispute. In the absence of
the review proceedings, the award in terms of which
the applicant was
retrospectively reinstated gave rise to a new prescription period of
30 years. It follows that, when the applicant
filed this application,
his award had not prescribed and is still enforceable.
[23]
I have had regard to Advocate Grobler’s reference and reliance
on the judgment in
PTAWU
obo Xoloani and Others v Mhoko’s Waste and Security Services
(Xoloani)
[11]
where
the Court held that the award that was issued on 29 April 2012 had
prescribed after three years, as it was published prior
to the 2015
LRA amendments. Be that as it may, the legal approach to which this
Court is bound is that stated in
Myathaza,
Mogaila, Gaoshubelwe and Motsoaledi
judgments.
Non-joinder
[24]
The respondent challenged the Court’s jurisdiction to
adjudicate this matter on the basis that
the applicant failed to cite
it as a party when the dispute was referred to conciliation. It was
the respondent’s contention
that it could not have been joined
to any of the proceedings without a proper and separate referral by
the applicant against it.
The respondent further contends that in the
absence of such referral, the CCMA erred in issuing a ruling in terms
of which it was
joined as a party to the proceedings and further
finding, in the award dated 13 February 2012, that it was the
applicant’s
employer.
[25]
To support its contention, the respondent referred to
NUMSA
v Intervalve (Pty) Ltd and Others
[12]
(Intervalve)
in
which the Court held that:
‘
Referral
for conciliation is indispensable. It is a precondition to the Labour
Court’s jurisdiction over unfair dismissal
dispute.’
[26]
The respondent’s reliance on the judgment of
Intervalve
is misplaced as it is
distinguishable from the current matter. In
Intervalve
,
NUMSA referred the dismissal dispute first to conciliation and then
to the Labour Court citing only
Steinmuller
and it then later attempted to join
Intervalve
and
BHR
to
the pending proceedings, which is not the case in the current matter.
[27]
In the current matter, it is not disputed that although the
respondent was not cited as a party when
the matter was referred to
conciliation, the CCMA subsequently issued a joinder ruling dated 21
September 2011 in terms of which
it ruled as follows:
‘
5.
That Rocklands Poultry Loss Control (Kruisrivier) be joined as a
second respondent.
6.
That all the relevant documentation on the file be served on the
second respondent, by the CCMA.
7.
That the matter was to be re-scheduled for a further hearing on a
date to be determined by CCMA.
8.
That the notice of set down be served on the applicant and both
respondents.’
[28]
In addition, in the arbitration award, the commissioner found the
respondent to be the true employer
of the applicant. Therefore, the
respondent’s submission that the joinder ruling makes no
mention of conciliation does not
take its contention any further
because it has chosen not to seek an order to review the joinder
ruling nor has it sought an order
to review the arbitration award.
Without an order to review and set aside the joinder ruling and the
award, both decisions are
binding on the parties.
Conclusion
[29]
Froneman J’s judgment in
Myathaza
,
the
majority judgment in
Gaoshubelwe, Mogaila
and
Mabuza
judgments
are binding on this Court. A claim for dismissal is a
debt as it seeks to
enforce
reinstatement, re-employment and compensation
. Therefore, the
arbitration award in terms of which the applicant was retrospectively
reinstated constitutes a debt to which the
Prescription Act is
applicable. The period of prescription starts running when the
applicant is dismissed and interrupted when the dismissal dispute
is
referred to the CCMA for conciliation. To the extent that there was
no application to review the arbitration award, interruption
of
prescription ceased when the award was issued. The award gave rise to
a new period of prescription of 30 years.
[30]
It is regrettable that the respondent’s avoidance of
implementing the reintatement part of the
award and then crying
prescripting on the back of the time wasted by attempting to
reinstate the applicant with another company
has an effect of an
apparent injustice of depriving the applicant of the fruits of an
award that was issued in his favour. Thus
depriving him of his
livelihood. The respondent’s avoidance is, however, met with
the principle that the award has the status
of a court order between
the parties and that the applicable prescription period is that which
is applicable to a judgment debt,
being 30 years. As such, when the
applicant launched an application to make the award an Order of this
Court, the award had not
prescribed.
[31]
The respondent’s challenge to the jurisdiction of this Court to
hear the matter on the basis
that it was not joined as a party to the
proceedings when the matter was referred to conciliation is without
merit. In the absence
of an order to review and set aside the joinder
ruling and the arbitration award in term of which the respondent was
found to be
the applicant’s employer, both the joinder ruling
and the arbitration award are binding on the parties.
[32]
There is, therefore, no reason why this Court should not make the
arbitration award an Order of this
Court.
Costs
[33]
The
Constitutional
Court has reiterated in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[13]
that the rule of practice that costs follow the result does not apply
in Labour Court matters and further that costs orders should
be made
in accordance with the requirements of law and fairness. In
Zungu
,
the Court referred with approval to
Member
of the Executive Council for Finance, KwaZulu-Natal v Wentworth
Dorkin N.O.
[14]
where
it was stated as follows:
‘
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.’
[34]
In this matter,
the respondent failed to fully comply with the
award of the CCMA. Instead, it appears from the pleadings that the
respondent paid
the applicant back pay two years after the award was
issued and offered him employment with True Labour Concept. Seven
years later,
the respondent has not reinstated the applicant, nor has
it advanced a reason why it failed to do so. The respondent has
further
not reviewed the joinder ruling and the arbitration award,
but simply opposed this application on technical grounds by advancing
a meritless prescription point and the issue of non-joinder. This
cannot be seen to be fair to the applicant.
In the
premise,
the requirements of law and
equity
prompts me to exercise my discretion
in favour of the applicant and to order the respondent to pay the
applicant’s costs.
[35]
In the circumstances, I make the following order:
Order
1.
The arbitration award dated 13 February 2012 issued under the
auspices of the
Commission for Conciliation, Mediation and
Arbitration under case number ECPE3115-11 is made the Order of
this Court.
2.
The respondent must pay the applicant’s costs.
______________________
D
Mahosi
Judge
of the Labour Court of South Africa
Appearances
For
the applicant: Advocate
B. Ndamase
Instructed by:
Maci
Incorporated Attorneys
For
the respondent: Advocate
M Grobler
Instructed
by:
Kirchmannns
Incorporated Attorneys
[1]
2015
(2) BCLR 182
(CC) at para 40.
[2]
Act 66 of 1995 as amended.
[3]
See the Practice Manu
a
l
of the Labour Court,
Clause
11.4.2.
[4]
Act
68 of 1969.
[5]
(2017)
38 ILJ 527 (CC);
[2017] 3 BLLR 213
(CC).
[6]
[2017 (7) BCLR 839 (CC).
[7]
2018
(5) BCLR 527 (CC).
[8]
2017 (4) BCLR 473 (CC).
[9]
At
para 156.
[10]
[2019]
1 BLLR 21
(LAC); (2019) 40 ILJ 117 (LAC).
[11]
C202/15
at para 22-23.
[12]
2015
(2) BCLR 182
(CC) at para 40.
[13]
(2018)
39 ILJ 523 (CC) at para 24.
[14]
[2007]
ZALAC 41
at para 19.