IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO:
J1250/02
In the matter between:
SOUTH AFRICAN CHEMICAL WORKERS UNION First
Applicant
WILLIAM MAHLANGU Second
Applicant
and
AFROX LIMITED
Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application to make an arbitration award and order of Court in terms of
section 158(1)(c) of the Labour Relations Act 66 of 1995 (“the Act”).
2. The respondent is opposing the application on the basis that the second applicant
had failed to report to the respondent for reinstatement within fourteen days from
the date when the award was served on the first applicant.
The background facts
3. The dispute arose out of the dismissal of the second applicant together with two
other employees by the respondent following their alleged participation in an
assault of a temporary employee during a lawful strike at the respondent’s
premises.
4. The dispute was arbitrated on 24 May 2001 and commissioner Vincent Surics
ordered that the second applicant and another employee be reinstated and that they
should report at the premises of the respondent within 14 days of receipt of the
award. The relevant portion of the award reads as follows:
“Applicants 2 & 3 are to report at the premises of the respondent within 14 days
of receipt of this award failing which the obligations of the respondent in giving
effect to this award will fall away.”
5. The first applicant received the award on 25 May 2001 and consulted with the
second applicant on 28 May 2001 about the award.
6. On 31 May 2001, the first applicant wrote a letter to the respondent informing it
that the second applicant and the other employee were going to report on 11 June
2001.
7. In a letter dated 8 June 2001, the respondent notified the first applicant that the
period within which the second applicant had to tender his services had expired on
6 June 2001. Further that the other employee had tendered his services. The
letter stated further that in terms of the specific provisions of the award, the
respondent incurred no liability towards the second applicant and that any tender
after 6 June 2001 would not oblige the respondent to accept such tender. It stated
that it was no longer bound by the arbitration award in respect of the second
applicant.
The parties contentions
8. The first applicant contended that the date of receipt of the award was 28 May
2001 which is the date on which the arbitration award was brought to the second
applicant’s attention. The second applicant tendered his services on 11 June 2001
which tender was rejected by the respondent. At the time when the tender was
made, the 14day period had not expired from the date of receipt of the arbitration
award. The 14day period only expired on 12 June 2001. There was no basis that
the respondent could refuse to accept the second applicant’s tender of his services
in terms of the arbitration award.
9. The first applicant contended further that the computation of “days” with regard to
the period determined by the commissioner for compliance with the award is in
terms of the Rules of the CCMA which exclude Saturdays, Sundays and Public
holidays and the period between 16 December and 7 January, and not in terms of
dies as defined in the Interpretation Act 33 of 1957. The 14day period expired on
15 June 2001. It was contended that the allegation by the respondent that the
second applicant failed to meet the condition of his reinstatement is devoid of any
foundation.
10. The respondent contended that the reinstatement of the second applicant was
subject to the condition that the second applicant was required to present his
services to the respondent within 14 days calculated from the date upon which the
applicants nominated representative received the arbitration award. The second
applicant did not present himself to commence duty within the time period
stipulated in the arbitration award. Since the second applicant had failed to meet
the condition set forth in the arbitration award, the respondent was no longer
obliged to reinstate the second applicant in terms of the arbitration award.
The issue to be determined
11. There are two issues that need to be determined in this application:
11.1 From what date did the fourteenday period commence running? and
11.2 How is the fourteenday period to be computed?
Analysis of the facts and arguments raised
12. It is common cause that the first applicant referred a dispute to the CCMA for
conciliation on behalf of the second applicant and two other employees. They
were represented at the arbitration proceedings by J Lebea, the applicants’
attorney of record. The fax number given to where the arbitration award could be
faxed to is that of the first applicant.
13. It is further common cause that the arbitration award was transmitted to the first
applicant on 25 May 2001. The said award was brought to the attention of the
second applicant on 28 May 2001.
14. If the date of receipt of the award is considered to be 25 May 2001 and ordinary
calendar days are used, the 14day period would have expired on 8 June 2001.
The applicants tender for reinstatement would have been late. If court days are
used, the tender would have been within the requisite period. If the date of receipt
of the award is considered to be 28 May 2001 and if the ordinary calendar days are
used, the 14day period would have expired on 11 June 2001. The tender would
have been within the requisite period.
16. Mr Lengane, who appeared for the applicants, did not persist with the argument
that was raised in his heads of argument that the word “days” referred to in the
award are to be construed to be court days. It therefore becomes unnecessary for
me to determine how the word “day” is to be construed.
17. Mr Lengane contended further that the commissioner did not comply with the
provisions of section 138(7) of the Act, in that he did not serve the award on the
second respondent. It was contended further that even if an applicant is
represented by a union or a representative, the Act requires that the award be
served on that applicant. I do not agree with the applicants’ contention. In terms
of section 138(7) of the Act, an award may be served on either the applicant or his
representative. One can imagine what would happen where there are a number of
applicants who had chosen a representative. A commissioner would be required
to serve the award on each of the applicants. This can only be so if the applicants
are not represented by a representative.
18. In terms of the award, the second applicant was required to present himself to the
respondent for reinstatement within 14 days of receipt of the award which was on
25 May 2001. The 14day period therefore commenced running from 26 May
2001. The last day on which the first applicant had to report for reinstatement was
8 June 2001. It will be noted that the commissioner chose to use the word “receipt
of the award” and not the date of “service” of the award. There is no difference
between the meaning of service and receipt. The second applicant had chosen to
be represented by a representative. No facts were placed before me why the
award was only brought to the attention of the second applicant on 28 May 2001.
I am also left in the dark about why the other employee was able to present
himself for reinstatement timeously whereas the second applicant did not.
19. It is quite clear from the facts that the second applicant’s representative was
labouring under a misapprehension when it believed that the 14 days commenced
running from 28 May 2001. However, a tender was made on 31 May 2001 which
was well within the 14day period. The respondent received the letter on the same
day but only responded to it on 8 June 2001. I find the respondent’s conduct
morally reprehensible to say the least. It is clear that the second applicant wanted
to comply with the award. This is reinforced by virtue of the fact that it
transmitted the letter on 31 May 2001. There was a genuine effort on the part of
the second applicant to comply with the award.
20. This Court is also a court of equity. I am of the view that there was a moral duty
on the respondent to have responded to the first applicant’s letter much earlier
than it did. Its failure to do so timeously is indicative of the fact that the
respondent was not desirous or serious to comply with its obligations in terms of
the award. I would have expected a party that genuinely wants to comply with its
obligations and which is aware of the fact that the other party labours under a
genuine misapprehension to have brought it to the attention of that party. No
explanation was tendered by the respondent why it did not respond earlier than 8
June 2001. The second applicant’s dismissal was found to be substantively unfair.
That finding still stands. The effect of such a finding would become meaningless
if this Court does not come to the assistance of the second applicant. In terms of
section 158(1)(a)(iii) of the Act, this Court has a discretion to grant an order
directing the performance of any particular act which order, when implemented,
will remedy a wrong and give effect to the primary objects of the Act. This Court
will not sit idly and not come to the assistance of such a party especially where it
is clear that the other party wants to benefit out of a genuine mistake committed.
This is one such a case where the Court must interfere and correct the wrong.
21. The application stands to be granted.
22. There is no reason why costs should not follow the result.
In the circumstances the followed order is made:
1. The arbitration award dated 24 May 2001 made by commissioner Vincent Surics
of the CCMA under case number MP1032 is made an order of court in terms of
section 158(1)(c) of the Act.
2. The respondent to pay the applicants costs.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANTS : K LENGANE INSTRUCTED BY LEBEA &
ASSOCIATES
FOR THE RESPONDENT : A E FRANKLIN SC INSTRUCTED BY WEBBER
WENTZEL BOWENS
DATE OF HEARING : 24 OCTOBER 2002
DATE OF JUDGMENT : 31 OCTOBER 2002