City of Ekurhuleni Metropolitan Municipality v South African Municipal Workers Union obo Hlongwane and Others (J256/2021) [2021] ZALCJHB 149 (22 June 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: J256/2021

In the matter between:

CITY OF EKURHULENI METROPOLITAN

MUNICIPALITY Applicant

and

SOUTH AFRICAN MUNICIPAL WORKERS

UNION obo M HLONGWANE AND 11 OTHERS

First Respondent

T L MABUSELA N.O.

Second Respondent

SOUTH AFRICAN LOCAL GOVERNMENT

BARGAINING COUNCIL

Third Respondent

Heard: 18 March 2021

Delivered: 22 June 2021

In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation

to the parties' representatives by email. The date for hand-down is deemed to be on 22 June 2021.

JUDGMENT

VAN AS, AJ

Introduction

[1] This is an urgent application to stay the enforcement of an Arbitration Award and Quantification Ruling pending the finalisation of an application to review and set aside the Arbitration Award and the Quantification Ruling.

[2] The Applicant also seeks an order that it be absolved from providing security in terms of sections 145(7) and 8 of the Labour Relations Act 66 of 1995 (“the LRA”).

[3] The First Respondent opposes the application. The Second and Third Respondents abide the decision of this Court.

The material facts

[4] The First Respondent referred an unfair labour practice dispute to the Third Respondent concerning the status and remuneration of twelve (12) of its members whom the Applicant employed as Metropolitan Police Officers (“the Affected Employees”).

[5] The Second Respondent arbitrated this dispute and thereafter delivered the Arbitration Award on 17 May 2019. The First Respondent did not attend these arbitration proceedings. It deliberately elected not to do so.

[6] The Second Respondent ordered the First Respondent to award the Affected Employees similar benefits to those enjoyed by employees of the Applicant in the Monitoring and Evaluation Investigation Unit with effect from 1 May 2019. The Second Respondent did not quantify these benefits in the Arbitration Award.

[7] The Applicant thereafter applied to the Third Respondent for an order quantifying these benefits. The Applicant also did not oppose this application. The Second Respondent then quantified these benefits in the Quantification Ruling which was delivered on 1 March 2021.

[8] The First Respondent thereafter filed this application. In Part A of this application, the First Respondent seeks the relief set out hereinabove.

[9] In Part B of the application the First Respondent seeks to review and set aside the Arbitration Award and the Quantification Ruling. The First Respondent therefore essentially seeks to stay the enforcement of the Arbitration Award and Qualification Ruling pending the finalisation if this review application.

Urgency

[10] The Applicant sought to certify the Arbitration Award and the Quantification Ruling on 1 March 2021. This application was served and filed on 9 March 2021, some one week later.

[11] I am therefore satisfied that the Applicant has acted expeditiously in bringing this application. I therefore find that the matter is urgent.

Evaluation of the merits

[12] This Court will not stay the enforcement of an arbitration award pending the finalisation of a review application if that review application is not properly before this Court.

[13] In casu, the Second Respondent delivered the Arbitration Award on 17 May 2019, some two years ago. As stated hereinabove, the First Respondent did not attend these arbitration proceedings.

[14] The First Respondent did not seek to review and set aside the Arbitration Award nor did it seek to rescind the Arbitration Award. It instead waited until the Second Respondent delivered the Quantification Ruling and thereafter applied to review and set aside both the Arbitration Award and the Quantification Ruling.

[15] Mr Sithole, who appeared for the First Respondent, submitted that there was no need for the First Respondent to review and set aside the Arbitration Award because the Arbitration Award, in the absence of the Quantification Ruling, was not enforceable.

[16] In my view, this submission is without merit. It is in the Arbitration Award, and not in the Quantification Ruling, that the Second Respondent concluded that the Applicant had committed an unfair labour practice. The merits of the unfair labour practice dispute were therefore determined in the Arbitration Award. The Quantification Ruling did no more than quantify the remuneration to be paid to the Affected Employees.

[17] The Arbitration Award was delivered on 17 May 2019. This application was launched on 9 March 2021, some 22 months later. This application, inasmuch as it seeks to review and set aside the Arbitration Award, was therefore filed well beyond the 6 week period contemplated in section 145(1) of the LRA.

[18] It is trite that this Court lacks the requisite jurisdiction to adjudicate a review application unless the late filing of the review

application has been condoned.[1]

[19] In casu, the Applicant has not sought condonation for the late filing of the review application and instead, mistakenly in my view, contends that the 6 week period contemplated in section 145(1) of the LRA only commenced when the Quantification Ruling was delivered on 21 January 2021.

[20] This Court cannot stay the further enforcement of the Arbitration Award unless there is a valid review application before it.

[21] Accordingly, I find that there is, on the papers before me, no reason to stay the further enforcement of the Arbitration Award.

[22] Insofar as it is necessary to consider this issue, I find that the Applicant need not furnish security in terms of section 145(8) of the LRA because the review application does not concern the reinstatement of an employee or the award of compensation as contemplated in section 145(8) of the LRA.

Costs

[23] The Since there is an ongoing relationship between the parties, I am of the view that there should be no order as to costs.

Order

[24] Accordingly, I make the following order:

1. The application to stay the further enforcement of the Arbitration Award is dismissed;

2. There is no order as to costs.

__________________

M J VAN AS

Judge of the Labour Court of South Africa

Appearances:

On behalf of the Applicant: Advocate E Sithole

Instructed by:

Jose & Associates

On behalf of the First Respondent: Mr N R Mkhize of Mkhize Attorneys

[1] Ellerine Holdings v Commission for Conciliation, Mediation and Arbitration and Others (2002) 23 ILJ 1252 (LC) at para 13