RULING ON
APPLICATION FOR REFERRAL TO ARBITRATION - 19/11/07
1.
The
Applicant has applied for his application under case No. 411/2007 to
be referred to arbitration under the auspices of CMAC in terms of
sections 85 (2) read with Section 8 (8) of the Industrial Relations
Act 2000(as amended).
2. The
application in Case No 411/2007 involves an unfair dismissal
dispute, in which the Applicant claims reinstatement alternatively
payment of terminal benefits and compensation amounting to a total
of E52.547-76.
3. The
Applicant alleges in the main application that his services were
terminated because he reported a dispute to CMAC regarding unfair
labour practices perpetrated by the Respondent. If this allegation
is proved, the dismissal of the Applicant may be found to have been
automatically unfair, entitling the Applicant to an award of up to
24 months wages as compensation.
4. The
Respondent opposed the referral of the main case to arbitration,
stating that it prefers to have the matter determined by the formal
adjudication process of the Industrial Court. The Respondent alleges
that complex issues of fact and law may arise in a matter involving
allegations of automatically unfair dismissal. The amount claimed is
also said to be substantial.
5. The
Applicant's only motivation for wishing the matter to be referred to
arbitration is that he anticipates unreasonable delay in the matter
coming to trial before the Industrial Court.
6. On
applying the principles spelled out in the cases of Sydney
Mkhabela v Maxi Prest Tyres (IC Case No. 29/2005) and Zodwa Gamedze
v Swaziland Hospice at Home (IC Case No. 252/2002), I
am not satisfied that this is the kind of matter where the
Respondent should be denied adjudication by a court of law and
compelled to submit to arbitration against its will.
7. The
application is dismissed. There is no order as to cost.
PETER
R. DUNSETH
PRESIDENT
OF THE INDUSTRIAL COURT
