Panorama Park Retirement Village v CCMA and Others (LC) (unreported case no JR2472/2015, 21-1-2020) (Tlhotlhalemaje J).

Subsequent to the Labour Court (LC) handing down an interim order, interdicting employees from participating in strike action and picketing within a certain distance from the employer’s premises; in this matter the employee was dismissed for being in ‘contempt’ of the interim order.

At arbitration the employer, in an attempt to justify the fairness of the dismissal, argued that the court order established a rule in the workplace, which the employee breached. This, as suggested by the employer, amounted to insubordination in that the employee refused to carry out the instruction of the LC. He was, therefore, in contempt of the order.

The commissioner found that only a court of law can pronounce on whether a person is in contempt of a court order and if so, what sanction to impose. The commissioner further found that the interim order did not transform into a workplace rule as it had been an instruction issued by the employer and hence the employee could not be guilty of insubordination.

The employee’s dismissal was found to be both procedurally and substantively unfair and he was awarded reinstatement with backpay of R 9 160.

The award was issued on 11 November 2015, whereafter the employer filed its review application on 9 February 2016 together with an application for condonation. The employer further filed the transcribed record some eight months after the record had been made available.

At the hearing of the matter the court was satisfied with the explanation for the late filing of the record and revived the employer’s review application. Before addressing the condonation application, the court made certain observations regarding s 145(7) and (8) of the Labour Relations Act 66 of 1995 (the LRA).

In terms of s 145(7), a review application does not stay the enforcement of an arbitration award. Section 145(8) states that an award is stayed pending a review application if security is furnished or unless the court directs otherwise. Thus, an award is automatically stayed if security, as contemplated in s 145(8)(a) or (b) is furnished, or at the instance of the court pursuant to the employer bringing an application on why it should be absolved from furnishing security or providing a reduced amount.

The court noted – with grave concern – that like the employer in this instance, there was a growing trend among applicants not to furnish any security and to include a prayer in their review application that they be absolved from paying security. Some applicants attempt to make out a case in their founding affidavit to the review application, as to why they should be absolved from providing security while others merely make the request in their notice of motion. This point is generally heard as a preliminary point when the review application is set down for hearing.

However, by that time, and in the absence of the employee seeking to enforce the award, the employer has been absolved from paying in security by default.

This practice, according to the court, defeats the very purpose of s 145(7) and (8), which was to dissuade employers from bringing frivolous review applications with no prospects of success. The court went further to state:

‘For reasons that are obvious, reviewing parties have taken advantage [of] the lacuna created by the provisions of section 145(7) of the LRA, as it is not specified as to how the payment of security should be made, when and to whom. Furthermore, the provisions of section 145(8) of the LRA do not indicate how and when a reviewing party may approach the Court in order to be absolved from furnishing security’.

Referring to the judgment in City of Johannesburg v SA Municipal Workers Union on behalf of Monareng and Another (2019) 40 ILJ 1753 (LAC), the court held:

‘To the extent that the LAC’s decision as above requires a reviewing party to make an application to the Labour Court, either in terms of section 145(3) for the stay of the enforcement of the arbitration award pending its decision in the review application, or to be absolved from payment of security, a proper case in that regards needs to be made out. This in my view implies that a separate application from the review application ought to be made. It is not uncommon for parties to bring separate applications to stay enforcement of arbitration awards, even though this often happens when writs have been obtained. Ordinarily, the provisions of Rule 11 of the Rules of this Court will be best suited for applications to be absolved from payment of security, so that they can be treated as interlocutory, and be placed on special court rolls, so that they can be dealt with before it can be said that the review application is ripe for a hearing.’

Returning to the facts at hand, the court found that it would serve no purpose for it to consider whether the employer ought to be absolved from payment of security – the employee was dismissed over three years ago and if the court were to find the employer had not made out a case to be absolved from furnishing security, the matter would have to be postponed until such time as the employer meets its obligation thereby causing a further delay.

Turning to the condonation application the court was not satisfied with the employer’s reasons for filing its review application outside the prescribed time period. Likewise, the court found that the employer had no merits in its review application; the commissioner correctly found that only a court of law, by way of its supervisory and enforcement powers, could pronounce on whether a person is in contempt of a court order. The interim order furthermore did not transform into a workplace rule for purposes of the charge of insubordination.

The court dismissed the condonation application, as well as the review application with no order as to costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2020 (April) DR 32.