Sekwati v National Bargaining Council for the Road Freight and Logistics Industry and Others (JR 918/2021) [2022] ZALCJHB 123 (24 May 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR 918/2021

In the matter between:

SERGEANT SERAKI SEKWATI

APPLICANT

And

NATIONAL BARGAINING COUNCIL FOR THE ROAD

FREIGHT AND LOGISTICS INDUSTRY

FIRST RESPONDENT

N MBELENGWA SECOND RESPONDENT

STAFFING LOGISTICS/TOLL GLOBAL FORWARDING THIRD RESPONDENT

Heard: 20 May 2022

Delivered: 24 May 2022

(In view of the measures implemented as a result of the Covid 19 pandemic, this judgement was handed down electronically by circulation to the parties’ representatives, by email. The date on which the judgment is delivered is deemed to be 24 May 2022.)

JUDGMENT

VAN NIEKERK, J

[1] The applicant seeks to review and set aside a ruling issued by the second respondent (the commissioner) who on 21 April 2021, refused to make a settlement agreement between the parties an arbitration award. In his award, the commissioner stated that he was satisfied that the third respondent had complied with the settlement agreement concerned.

[2] In the proceedings before the commissioner, he had before him an application in terms of section 142A in which the applicant contended

that the third respondent had failed to comply with a settlement agreement reached on 3 October 2018. In terms of the agreement, the applicant was reinstated on the same terms and conditions of employment, subject to the condition that the respondent remained

entitled to exercise its rights to pursue disciplinary action against the applicant, which it intended to institute at the time of what is described as the applicant’s alleged dismissal.

[3] The commissioner had before him and affidavit deposed to on behalf of the third respondent in which it was contended that the third respondent had complied with the settlement agreement in that the applicant was reinstated on 5 October 2018. The next affidavit was a register of employees reporting for duty on which the applicant’s name appears. The third respondent averred further that subsequent to his reinstatement, the applicant referred a further dispute to the bargaining council. The dispute was scheduled for conciliation on 23 April 2019 and a further settlement agreement was reached on the same date in terms of which the applicant was paid an amount of R 5306.85 in settlement of the dispute, on the basis that the employment relationship terminate with immediate effect.

[4] In his ruling, the commissioner records that the documentary evidence disclosed that the applicant is reinstated into his position in terms of the agreement reached on 5 October 2018, that he was paid for the period of the suspension and that he had signed attendance registers indicating that he had in fact been reinstated. Further, the commissioner finds that the fact that the parties had concluded a further settlement agreement on 23 April 2019 was an indication that there was an employment relationship between the parties prior to that date. On this basis, as I have indicated, the commissioner found that the third respondent had in fact complied with the settlement agreement reached on 5 October 2018.

[5] In the present application, the applicant says no more than that the affidavit deposed to on behalf of the third respondent and that served before the commissioner was no more than a misrepresentation. In particular, the applicant seeks to be heard in this court.

[6] This court’s powers of intervention are limited. This is not an appeal. The court may review and set aside the commissioner’s ruling only if it is established that the ruling is so unreasonable that no reasonable decision-maker could come to the decision to which the commissioner came on the available evidence. The evidence before the commissioner, in the form of the affidavit filed on behalf of the third respondent, was not disputed at the time. The commissioner’s ruling, after having had regard both to the affidavit and to the relevant documentation, is entirely sustainable having regard to the evidence that served before him. It is not open to the applicant at this late stage to challenge the evidence of the third respondent on the basis that it constitutes a misrepresentation, when no objection was made at the relevant time.

[7] In short, the applicant has failed to make out a case for review and the application stands to be dismissed. For the purposes of section 162 of the LRA, the requirements of the law and fairness dictate that each party should bear its own costs.

I make the following order:

1. The application is dismissed.

______________________________

André van Niekerk

Judge of the Labour Court of South Africa

Appearances:

For the Applicant: In person

For the third respondent: A Naiker