Brand v Kimberley Cold Storage (Pty) Ltd (J974/2006) [2007] ZALCJHB 64 (15 June 2007)

Brand v Kimberley Cold Storage (Pty) Ltd (J974/2006) [2007] ZALCJHB 64 (15 June 2007)

The court held that the respondent was not entitled to raise the issue of a fixed-term contract for the first time before the Labour Court, as it had failed to raise this issue during arbitration. The respondent's partial compliance by paying a pro rata salary did not discharge its obligation under the arbitration award, which required reinstatement and payment of two months' salary. The respondent could have sought review of the award if it believed compliance was impossible, but it did not do so. Accordingly, the arbitration award was made an order of court, and the respondent was ordered to pay the costs of the application.

Citation
[2007] ZALCJHB 64
Parties
Applicant: Nicollet Brand; Respondent: Kimberley Cold Storage (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 June 2007
Case Number
J974/2006
Procedural Posture
Urgent Application / Application to Make Arbitration Award an Order of Court
Outcome
Application granted. Arbitration award made an order of court. Costs awarded against respondent.
Judges
Ngalwana AJ
Legal Topics
Section 158 1 C, Arbitration Award Enforcement, Unfair Dismissal, Fixed Term Contracts
Labour Law Section 158 1 C Arbitration Award Enforcement Unfair Dismissal Fixed Term Contracts

Case Brief

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Parties

Nicollet Brand

Applicant

Kimberley Cold Storage (Pty) Ltd

Respondent

Procedural Posture

Urgent Application / Application to Make Arbitration Award an Order of Court

Legal Issues

  1. 1 Whether the arbitration award should be made an order of court under section 158(1)(c) of the Labour Relations Act.
  2. 2 Whether the respondent's argument regarding a fixed-term contract can be raised for the first time before this court.
  3. 3 Whether the respondent has complied with the arbitration award.

Ratio Decidendi

The court held that the respondent was not entitled to raise the issue of a fixed-term contract for the first time before the Labour Court, as it had failed to raise this issue during arbitration. The respondent's partial compliance by paying a pro rata salary did not discharge its obligation under the arbitration award, which required reinstatement and payment of two months' salary. The respondent could have sought review of the award if it believed compliance was impossible, but it did not do so. Accordingly, the arbitration award was made an order of court, and the respondent was ordered to pay the costs of the application.

Court Disposition

Application granted. Arbitration award made an order of court. Costs awarded against respondent.

Orders

  • The arbitration award issued under case number NC1460/2005 is made an order of court.
  • The respondent is ordered to pay the costs of this application.