Brand v Kimberly Cold Storage (Pty) Ltd (J974/2006) [2007] ZALC 172 (15 June 2007)

Brand v Kimberly Cold Storage (Pty) Ltd (J974/2006) [2007] ZALC 172 (15 June 2007)

The court found that the respondent failed to raise the issue of a fixed-term contract before the commissioner and cannot now raise it for the first time in court. The respondent's partial payment does not constitute compliance with the award, which required both reinstatement and payment of two months' salary. The respondent did not challenge the finding of unfair dismissal nor seek to review or set aside the award. Accordingly, the arbitration award is made an order of court and the respondent is ordered to pay the costs of the application.

Citation
[2007] ZALC 172
Parties
Applicant: Nicollet Brand; Respondent: Kimberley Cold Storage (Pty) Ltd
Court
Labour Court
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.
Judges
Ngalwana AJ
Legal Topics
Section 158 1 C, Arbitration Award Enforcement, Unfair Dismissal, Fixed Term Contract
Labour Law Section 158 1 C Arbitration Award Enforcement Unfair Dismissal Fixed Term Contract

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 found that the respondent failed to raise the issue of a fixed-term contract before the commissioner and cannot now raise it for the first time in court. The respondent's partial payment does not constitute compliance with the award, which required both reinstatement and payment of two months' salary. The respondent did not challenge the finding of unfair dismissal nor seek to review or set aside the award. Accordingly, the arbitration award is made an order of court and the respondent is ordered to pay the costs of the application.

Court Disposition

Application granted; arbitration award made an order of court.

Orders

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