IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO: JR249/02
In the matter between:
Applicant
and
THE COMMISSIONER FOR CONCILIATION,
First Respondent
Second Respondent
Third Respondent
JUDGMENT
FRANCIS J
Introduction
1. This is an application to review, correct and/or set aside the compensation order in
an arbitration award dated 21 January 2002 issued by the second respondent (“the
commissioner”), who sat as the commissioner in arbitration proceedings initiated
by the applicant under the auspices of the first respondent, under case number
GA127301.
2. The applicant is also seeking condonation for the late filing of his answering
affidavit. Good cause has been shown for the late filing of the answering
affidavit.
3. The review application was opposed by the third respondent. The third
respondent was in default today when the application was argued before me.
Background facts
4. The applicant was employed by the respondent on 29 June 1999 as a sales
executive.
5. On 25 January 2001, pursuant to a disciplinary enquiry into the alleged mal
performance, the third respondent dismissed the applicant. The applicant
appealed. On appeal the dismissal was upheld by the third respondent on 8
February 2001.
6. The applicant referred the matter to the first respondent for conciliation, and
subsequently arbitration. The commissioner presided at the arbitration hearing.
7. The arbitration commenced on 25 July 2001 when the third respondent presented
its case whereafter the arbitration was postponed sine die and was resumed on 8
January 2002. On 8 January 2002 the applicant presented his evidence and the
parties delivered argument.
The arbitration award
8. On 22 January 2002 the commissioner delivered his award. He found that the
dismissal was both substantively and procedurally unfair.
9. Pursuant thereto the commissioner directed that the third respondent pay the
applicant six month’s salary which he determined to be an amount of R69 568,50
at the rate of remuneration of the applicant at the time of dismissal.
10. The reason that the commissioner gave for limiting the compensation to six
months was that neither of the parties was responsible for the delay from 25 July
2001 to 8 January 2002 when the arbitration was finalised but for the award.
11. It is against the findings referred to in paragraphs eight and nine supra that the
applicant has brought the review application.
The grounds of review
12. The applicant contends that the commissioner misdirected and/or misconducted
himself and/or committed a gross irregularity in awarding an amount of six
months compensation to him, in circumstances where the commissioner had
found, correctly, that neither the applicant nor the third respondent was at fault for
any delay in the timeous completion of the arbitration under review.
13. The misdirection/misconduct/gross irregularity occurred in that the commissioner
misdirected himself in applying section 194(2) of the Labour Relations Act 66 of
1995 (“the Act”). The commissioner ought to have directed that the applicant was
to be awarded an amount of compensation equal to the remuneration which he
would have received from the time of the termination of his services being 25
January 2001 to the last date on which the arbitration was held being 8 January
2002 which is a period of 11 months and 14 days. The commissioner, so it was
contended, did not apply his mind to the aspect of compensation.
Analysis of the facts and arguments raised
14. I am of the view that the award of six months is not at all justifiable on the reasons
given therefor. The fact that neither party was responsible for the delay does not
excuse the third respondent from payment of the compensation he is by law
obliged to pay and which the commissioner was by law obliged to award, nor may
the applicant be denied his lawful compensation for the said reasons.
15. The commissioner was obliged at the time he delivered his award to grant the
applicant the full compensation but for a discretion to award zero remuneration.
Having decided to award some compensation in view of the commissioner’s
finding that there had been both substantive and procedural unfairness, he was
obliged to award the full measure thereof, subject to a limit of twelve months
remuneration. The twelvemonth rule prevails in circumstances where the date
between the commencement and conclusion of the arbitration exceeds a twelve
month period. In circumstances where the time period between commencement
and conclusion of the arbitration occurs within a twelvemonth period then the
maximum measure of compensation would be the elapse time period which in the
present case is eleven months and fourteen days. The commissioner was obliged
to award remuneration equivalent to that period.
1. 16. No purpose will be served by referring the matter back to the commissioner or
any other commissioner. The third respondent has conceded on the papers in this
review application that the applicant’s monthly remuneration was R9 640,00. The
applicant accepted that amount as his monthly remuneration. It is further common
cause that the time period from the commencement of the arbitration to the last
day of the hearing was eleven months and fourteen days.
17. The applicant is entitled to payment from the third respondent of R110 476,55
being the remuneration for the period of eleven and fourteen days.
18. There is no reason why costs should not follow the result.
19. In the circumstances the following order is made:
1. The compensation order in the arbitration award dated 21 January 2002 under case
number GA127301 issued by the commissioner sitting as an arbitrator of the first
respondent is reviewed and corrected.
2. The third respondent is directed to pay the applicant the sum of R110 476,55
being the equivalent of eleven months and fourteen days remuneration.
3. Condonation for the late filing of the replying affidavit is granted
1.
4. The third respondent to pay the costs of the application.
FRANCIS J
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
FOR THE APPLICANT : T C TIEDEMANN INSTRUCTED BY PETERSEN HERTOG &
ASSOCIATES
FOR THE THIRD RESPONDENT : NO APPEARANCE
DATE OF HEARING : 27 MAY 2003
DATE OF JUDGMENT : 27 MAY 2003