IN THE LABOUR COURT OF SOUTH AFRICA
Held in Durban
Case No : D338/98
In the matter between :
M. G. MEYER Applicant
and
W. C. BUTLER t/a WACKEM Respondent
JUDGEMENT
1. Under the case number recorded above Applicant M. G. Meyer sought
and was granted an order in terms of s158(1)(c) of the Act making the
arbitration award made in her favour an order of this Court. Pursuant to
obtaining the order and the Respondent’s failure to comply therewith the
Applicant issued a warrant of execution against Respondent’s property. An
attachment was duly made and the Respondent goods removed by the sheriff.
2. The Respondent then brought an application in which he sought to suspend the
attachment. This application was opposed and the matter set down for hearing on 30
November 1999. On 30 November Respondent’s Counsel indicated that Respondent did
not wish to pursue the application and quite rightly so and tendered the Applicant’s party
and party costs which was accepted by the Applicant. To state that application sought by
the Respondent was devoid of any merit would be a gross understatement.
3. Although the application was not being proceeded with, on perusing the file I found that
the granting of the order by this Court in terms of s158(1)(c) to be clearly wrong. I then
informed the parties that I would be rescinding the order of this Court on my own motion
as provide for in s165.
4. Applicant’s Counsel requested an opportunity until 1 December 1999 to consider the
matter and be allowed to argue why, if at all, I should or could not rescind the order as
stated earlier. This opportunity was granted.
5. By way of background it is recorded that on
5.1 On 23 October 1997 the commissioner at the CCMA made an award in favour of the
Applicant against the Respondent as follows :
(1) The dismissal of the Applicant by the Respondent without consultation was unfair ;
(2) Respondent is ordered to pay Applicant an amount of R 80 500.00 as compensation ;
(3) Respondent to pay Applicant’s costs of the matter.
5.2 The Respondent failed to comply with the order and on 16 April 1999 this Court
made the aforesaid award an order of Court at the instance of the Applicant in terms of
s158(1)(c). The order was granted on an undefended basis and in the absence of the
Respondent. The Court order simply states that “the arbitration award dated 23 October
1997 is made an order of Court.”
5.3 Pursuant to the arbitration award being made an order of this Court a warrant of
execution against Applicant’s property was issued and his assets were attached and removed.
6. The problem I have in this matter is the arbitration award itself. In the paragraph headed
“analysis of the evidence” the commissioner records as common cause that the Applicant
was dismissed by the Respondent for operational reasons.
7. This being common cause the commissioner fails to state why it is that he arbitrated the
dispute between the parties. In terms of s191(5)(b)(ii) when an employee’s dismissal is
based on the employer’s operational requirements such dispute may not be arbitrated
upon by the commissioner but referred to the Labour Court. The only circumstance in
which a dispute relating to dismissal by reason of the employer’s operational
requirement may be arbitrated by the CCMA or Council is when both the parties agree to
the matter being arbitrated as provided for in s141(1). There is nothing before this Court
nor was there an allegation in the Applicant’s papers in its application in terms of
s158(1)(c) that such agreement was in fact arrived at.
8. If there was no such agreement then the arbitration award is in fact a nullity. A
commissioner cannot clothe himself with jurisdiction which is not specifically provided
for in the Act. If on the other hand the parties agreed to the dispute being arbitrated by a
commissioner at the CCMA, then the party seeking for the arbitration award to be made
an order of Court should have alleged in its application that the arbitration was
conducted with the agreement of both parties.
9. Having perused the arbitration award and the application in terms of s158(1)(c) I have
not found any evidence that the commissioner was in fact compelled to arbitrate the
matter before him. In the absence thereof this Court should not have made the arbitration
award an order of the Court.
10. Counsel for the Respondent however submitted that since s141(1) does not prescribe the
form of agreement required such agreement may be implied or tacit. Counsel referred to
various authorities none of which in my view support the submission that where
agreement is specifically required to clothe jurisdiction upon an administrative body
such as the CCMA which may not otherwise have jurisdiction same can be implied
simply by virtue of the fact that the parties participated in the proceedings. Counsel’s
further argument was that an agreement should be implied because both parties were
legally represented at the arbitration proceedings and the arbitrator was a senior
commissioner and therefore all of them must have been aware of such basic requirement
and only proceeded because they all accepted that none had any objection to the
arbitration process.
11. I find the above argument untenable. I believe s141(1) of the Act requires the parties to a
dispute to expressly agree to the arbitration process in matters where the dispute relates
to dismissal based on operational requirements. The requirement that the agreement must
be express is inescapable because it is not always that the parties will be represented by
legal Counsel and whether represented or not be aware that the dispute which is to be
arbitrated is one which, but for an agreement between them, be adjudicated upon by this
Court. It is only when the parties are aware of the forum in which the dispute is required
normally to be heard can they exercise their right to agree or not to agree to the
arbitration proceedings. Merely because the parties proceeded with the arbitration cannot
mean that they knew that their dispute was one which should have been referred to this
Court and for that matter it cannot be said that they agreed to the dispute being arbitrated
because of their participation in the process or because the fact that they were
represented by legal Counsel.
12. In the circumstance unless there is express agreement that a dispute relating to a
dismissal based on the employer’s operational requirement be arbitrated it cannot be
arbitrated.
13. Counsel further argument of some merit was that this Court could not rescind the order
made by it in the present matter because it was not erroneously granted. This is so, he
submits because this Court cannot have any knowledge of whether or not the judge who
presided over the application in terms of s158(1)(c) considered the question of
agreement or not. This argument can be easily dispensed with. It is not disputed by
agreement or not. This argument can be easily dispensed with. It is not disputed by
Counsel that that there was no express agreement between the parties that the dispute
should have been arbitrated. In the circumstances to make the arbitration award an order
of Court was clearly erroneous and therefore liable to be rescinded.
14. The final issue I need to decide upon is whether or not I am prepared to make the
agreement between the parties an order of this Court. As stated earlier the Respondent
sought to stay the execution of his assets to liquidate his indebtedness to the Applicant
pursuant to the order of this Court. As this Court has now decided that the order should
not have been granted in the first instance, should this Court then make an agreement
between the parties which has costs implication an order of Court. Ordinarily I would
believe not but the application sought by the Respondent was so devoid of merit that had
the application not been withdrawn and the order of this Court not interfered with the
likelihood of a punitive cost order being granted against the Respondent was almost
inevitable.
15. In the result the following orders are made :
15.1 The order of this Court dated 16 April 1999, making the arbitration award made
under the auspices of the CCMA under its case number KN 1623 an order of this Court, is
rescinded and set aside.
15.2 The agreement between the Applicant (Respondent in the application under the same
case number) and Respondent (Applicant in the application) to the effect that the application
is withdrawn with Respondent to pay Applicant’s party and party costs up to 30 November
1999 is made an order of this Court.
_________________________
WAGLAY J
LABOUR COURT OF S. A
(Date of Judgement 02 December 1999)