Can a litigant avail itself to section 158(1)(c) of the LRA to circumvent the further prosecution of a review application?

Posted: February 26, 2010 in Uncategorized

In BP Southern Africa (Pty) Ltd v Bargaining Council for the Chemical Industry and Others (J841/09), BP SA sought an order in terms of which an arbitration award, in terms whereof it was ruled that the third respondent’s unfair dismissal claim is dismissed, be made an order of the Labour Court.  The effect of such relief would have been to “void” the third respondent’s pending application for the review of the aforementioned award.  The Labour Court (per Van Niekerk J) inter alia ruled that: –

  1. “[t]his Court regularly grants orders in terms of s 158 (1) (c) to enforce arbitration awards in circumstances where employers are ordered to reinstate an unfairly dismissed employee or to pay compensation. In these instances, a s 158 (1) (c) application is an integral part of the statutory dispute resolution system, designed to afford applicants the means to enforce the underlying award. In all of these cases, the awards are capable of being executed. In other words, they are orders ad factum praestandum or ad pecuniam solvendam” (at §8);
  2. “[i]n the present instance, the award upholds the applicant’s dismissal. In effect, it constitutes a dismissal of the applicant’s claim. There is nothing in the award that is capable of being executed, not even a costs order. In these circumstances, it seems to me that an order in terms of s 158 (1) (c) is not a remedy that ought to be available to the applicant” (at §9);
  3. “[t]he applicant ought to have availed itself of an application to dismiss the review application… This is a remedy specifically designed to address an alleged abuse of this Court’s process in the form of unjustifiable delays occasioned by a litigant and avoids confusing procedures that have as their purpose the enforcement of awards with those that are intended to deal with litigants who fail to prosecute their claims with the required degree of diligence” (at §11).

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