South Africa: Labour Court

Enforce Guarding (Pty) Ltd v Minister of Labour and Others (D236/04 , D292/04) [2005] ZALC 40; (2005) 26 ILJ 1072 (LC); [2005] 4 BLLR 321 (LC) (21 January 2005)

JUDGMENT

NGCAMU AJ

[1] There are two applications before the Court. The first matter is under case No D236/04, which relates to the appeal and condonation. The second matter is under case No D292/04, being a review application. It has been agreed between the parties that case No D292/04 should only be considered if condonation is not granted in respect of case No D236/04.

[2] The parties first argued case No D236/04 and thereafter asked the Court to consider D292/04 if the condonation is not granted. The parties thereafter addressed the Court in the review application. The first part of the judgment therefore relates to D236/04.

[3] The applicant brought an application in which it sought an order:

(a) staying the enforcement proceedings of the compliance order pending the appeal in terms of section 72 of the Basic Conditions of Employment Act; (The Act)

(b) extending the period for the submission of the appeal;

(c) upholding the appeal in terms of section 77 of the Act against the refusal of the objection against the compliance order by the second respondent.

[4] A sectoral determination was made by the Minister of Labour to regulate the minimum ordinary hours of work, overtime, as well as payment for overtime. The applicant did not make payment of overtime in terms of the sectoral determination. The applicant filed an application for the exemption to clause 5(9) of the sectoral determination No 3 applicable to the security industry. Clause 5(9) covers the payment of overtime. The application was launched in terms of section 50(7)(b) of the Basic Conditions of Employment Act of 1997.

[5] The exemption sought was for the period 6 March 2001 to 15 November 2001. This is the period during which the applicant had paid overtime at a lower rate of 1,025 per hour instead of 1,5 per hour.

[6] The second respondent refused to vary the sectoral determination.

[7] The applicant launched a review application under case No D243/04. This application was heard on 3 November 2004 and judgment was reserved.

[8] On 28 October 2002 a compliance order seeking to enforce payment for overtime was served on the applicant. The compliance order was issued in terms of section 69 of the Basic Conditions of Employment Act. This section provides:

"(i) A labour inspector who has reasonable grounds to believe that an employer has not complied with the provision of this Act may issue a compliance order."

[9] The applicant filed an objection to the compliance order in terms of section 71 of the Act. Section 71(1) provides:

"An employer may object to a compliance order by making representations in writing to the Director-General within 21 days of receipt of that order."

[10] Section 71(3) provides that:

"After considering any representations by the employer and any other relevant information, the Director-General -

(a) may confirm, modify or cancel an order or any part of the order; and

(b) specify the period within which the employer must comply with any part of the order that is confirmed or modified."

[11] The objection was refused by the second respondent. Section 72 of the Basic Conditions of Employment Act provides:

"(1) An employer may appeal to the Labour Court against an order of the Director-General within 21 days of receipt of that order."

[12] The applicant did not take the decision on appeal. The second respondent lodged an application to enforce the compliance order under case No D214/04 in terms of section 73 of the Basic Conditions of Employment Act. The applicant thereafter lodged an appeal to this Court. This appeal was lodged outside the period of 21 days prescribed in section 72(1). An application for condonation was accordingly made by the applicant. The first and second respondents opposed this application.

The condonation application

[13] Section 72 prescribes that the appeal should be lodged with the Labour Court within 21 days. The applicant received the notification refusing the objection on 17 March 2004. The notification was delivered by Mr Harris Reddy of the Department of Labour. The 21-day period expired on 7 April 2004. The application for the appeal was filed with the registrar outside the period of 21 days. It was launched on 29 April 2004.

[14] Section 72(3) grants the Court the power to condone the late filing of the appeal on good cause shown. The applicant's explanation for the delay in the filing of the appeal is that when the human resources manager, Mr Hardie, received the notification of the refusal of the objection, he did not realise that it was such a notification. The deponent to the applicant's affidavit, Mr Hardie, further stated that he was misled into believing that the compliance order was being reissued because the document served was headed "Compliance order in terms of section 69 read with section 71(3) of the Basic Conditions of Employment Act". He further stated that he only realised on 22 April 2004 what the document was. This is the date on which the notice to enforce compliance order was served. It was submitted that had Hardie read the document he would have realised that the objection had been refused. When the notice was given to Mr Hardie, he signed for it.

[15] What is in dispute is whether Mr Reddy informed Mr Hardie that he was reissuing the compliance order, as alleged by Mr Hardie. As a result of the heading of the document, Mr Hardie (as the argument continues) was misled.

[16] In the replying affidavit, page 243, paragraph 6.2, Mr Hardie testified that he did not read the document and that Mr Reddy did not explain the contents thereof. He further stated that he did not consider it necessary to read the document as he assumed it was the same compliance order which had been reissued.

[17] I have some difficulties with the applicant's version, as will appear below. In paragraph 20, page 12, line 7, of the documents Mr Hardie stated:

"I had not seen the original compliance order and assumed it was the same document."

The difficulty here is that Mr Hardie has not explained how he assumed the document served on him was the compliance order when he had not seen the original. As Mr Hardie had not seen the compliance order, one would have expected him to read the document if he did not do so.

[18] Another difficulty with the applicant's version is that even if Mr Reddy did not explain the contents to Mr Hardie, Mr Hardie was aware that the variation application had been refused. At page 12, paragraph 20, of his founding affidavit, Mr Hardie stated:

"On 16 March 2004 I was informed that the second respondent had refused the applicant's variation application. On the following day Mr Harris Reddy, an inspector from the Department of Labour, who has throughout dealt with this dispute, attended the applicant's premises and informed me that he was reissuing the compliance order."

[19] The applicant knew by 16 March 2004 that the variation had been refused, even before the arrival of Mr Reddy. Section 71(6) provides that if the Director-General confirms or modifies the order or any part of the order, the employer must comply with that order within the time specified in that order. Mr Hardie has not explained how he got to know on 16 March 2004 that the variation had been refused. However, the applicant did not comply with the order, even though Mr Hardie had been informed on 16 March that the application had been refused.

[20] The service of the documents on 17 March 2004 merely confirmed what Mr Hardie already knew. This, in my view, explains why he did not read it. The applicant waited for the second respondent's next move. The applicant only took steps when the application to enforce the compliance order was served.