LC summary: Condonation – late filing of review application – principles stated – no proper explanation for a material delay – condonation refused. Determination of back pay and retrospectivity in the case of reinstatement – principles applicable – exercise of a discretion by arbitrator – no indication that discretion not properly exercised. Peremption – acquiescence in the award followed by review application much later – peremption applicable – applicant prohibited from challenging award.
NUMSA obo Nedzamba v Fry’s Metals (A division of Zimco Group) and Others (JR2817/2009) [2014] ZALCJHB 115 (27 March 2014)
Heard: 15 January 2014 Delivered: 27 March 2014
SNYMAN, AJ
Introduction
[1] The applicant has brought an application to partially review and set aside an award of an arbitrator of the MEIBC (the second respondent), which application has been brought in terms of Section 145 of the LRA, as read with Section 158(1)(g). The review application only relates to the issue of a challenge by the applicant of the relief afforded to the individual applicant by the third respondent as arbitrator. In a nutshell, the applicant contends that the third respondent committed a reviewable irregularity by limiting the back pay due to be paid to the individual applicant after having found in favour of the individual applicant and having awarded him reinstatement, instead of making it retrospective to the date of the dismissal of the individual applicant. The review application was opposed by the first respondent. In addition, and because the applicant’s review application was brought late, the applicant also applied for condonation for such late filing.
[2] The first respondent had dismissed the individual applicant on 21 October 2008, and this dismissal was then challenged as an unfair dismissal dispute to the MEIBC. The matter came before the third respondent for arbitration on 23 June 2009. Pursuant to these arbitration proceedings, the third respondent then indeed determined that the dismissal of the individual applicant by the first respondent was substantively and procedurally unfair. The third respondent then determined that the individual applicant be afforded relief in the form of retrospective reinstatement without loss of benefits. The third respondent further determined that the back pay payable to the individual applicant pursuant to his award of reinstatement be limited to three months’ salary, in the sum of R51 663.23. The individual applicant was directed to report for duty at the first respondent on 20 July 2009 in terms of the reinstatement award. As stated above, it is the back pay determination that forms the subject matter of the applicant’s review application, which review application was only filed on 26 October 2009.