Cadema Industries (Pty) Ltd v De Kock NO and Others (C400/06) [2007] ZALCCT 12 (15 February 2007)
- Citation
- [2007] ZALCCT 12
- Status
- Order
- Jurisdiction
- South Africa
- Court
- Labour Court Cape Town
- Panel
- Pillay D
- Case number
- C400/06
More details
- Court
- Labour Court Cape Town
- Panel
- Pillay D
- Case number
- C400/06
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the arbitrator erred by disregarding the definition of 'short time' and the provisions of clause 12.4 of the Main Agreement, which require only one day's notice and do not mandate extensive consultation. The consultation that occurred via correspondence was sufficient given the purpose and short notice period of short time. Furthermore, the arbitrator lacked jurisdiction to rule on the January 2006 short time as no dispute had been referred to the bargaining council.
Court disposition
The arbitration award was reviewed and set aside.
Orders
- The arbitration award is reviewed and set aside.
- No order is made regarding the January 2006 short time as the arbitrator lacked jurisdiction.
02
Material facts
Parties
Cadema Industries (Pty) Ltd
ApplicantC De Kock NO
RespondentSouthern African Clothing and Textile Workers Union
RespondentNational Bargaining Council for the Clothing Manufacturing Industry (Western Cape Sub-Chamber)
Respondent03
Procedural history
Posture
Review Application / Order Granting Reasons for Review
04
Questions and positions
Legal issues
- 01
Whether the arbitrator correctly applied the consultation requirements for imposing short time under the Main Agreement.
- 02
Whether the arbitrator had jurisdiction to rule on the January 2006 short time when no dispute was referred to the bargaining council.
Party arguments
- Applicant
- The applicant argued that it complied with the Main Agreement by issuing one day's notice for short time and that the consultation requirements for short time are less extensive than those for retrenchment. The applicant maintained that consultation occurred via correspondence and that further consultation would have undermined the purpose of short time.
- Respondent
- The respondents contended that the applicant failed to consult the union at the earliest opportunity for meaningful consensus-seeking consultation regarding the imposition of short time, as required by the Main Agreement.
05
Court’s reasoning
Legal principles
- 01
Clause 12.4 of the Main Agreement
The Main Agreement requires an employer to issue one day's notice for short time and does not prescribe extensive consultation as is required for retrenchment.
- 02
Labour Relations Act
Jurisdiction to rule on a dispute requires that the dispute be referred to the bargaining council.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the arbitrator erred by disregarding the definition of 'short time' and the provisions of clause 12.4 of the Main Agreement, which require only one day's notice and do not mandate extensive consultation. The consultation that occurred via correspondence was sufficient given the purpose and short notice period of short time. Furthermore, the arbitrator lacked jurisdiction to rule on the January 2006 short time as no dispute had been referred to the bargaining council.
Obiter and limits
- A more protracted consultation process would have defeated the purpose of short time.
- The standard of consultation for short time is not as extensive as that prescribed for retrenchment.
Court disposition
The arbitration award was reviewed and set aside.
- The arbitration award is reviewed and set aside.
- No order is made regarding the January 2006 short time as the arbitrator lacked jurisdiction.
Source and reliance status
Labour Court Cape Town
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Labour Court Cape Town
Order
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
CASE NO:C400/06
In the matter between:
CADEMA INDUSTRIES (PTY) LTD
APPLICANT
and
C
DE KOCK NO
1ST
RESPONDENT
SOUTHERN
AFRICAN CLOTHING AND TEXTILE
WORKERS
UNION
2ND
RESPONDENT
NATIONAL
BARGAINING COUNCIL FOR THE
CLOTHING
MANUFACTURING INDUSTRY
(WESTERN CAPE SUB-CHAMBER) 3RD
RESPONDENT
REASONS FOR ORDER GRANTED ON 15/02/07
PILLAY D, J
The award was reviewed and set aside because the arbitrator found that the applicant, Cadema Industries (Pty) Ltd, failed to consult the second respondent, the Southern African Clothing and Textile Workers Union (SACTWU) at the earliest opportunity for meaningful
consensus-seeking consultation about the short time imposed on 14th and 15th December 2005 and 23rd and 24th January 2006. In so doing the arbitrator disregarded the definition of “short time” and the short time provisions
in clause 12.4 of the Main Agreement. The Main Agreement requires an employer to issue one day’s notice for short time. Given the purpose of short time and the short notice periods, the standard of consultation that precedes short time is not as extensive as that prescribed for retrenchment.
On the facts, the parties did consult via correspondence. A more protracted consultation would have defeated the purpose of the short time. With regard to his ruling pertaining to the January 2006, short time the arbitrator had no jurisdiction as no dispute had been referred to the 3rd Respondent bargaining council.
DATED AT DURBAN ON 25 DECEMBER 2007-12-25
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