EVER heard a judge say, in so many words, that the law being applied in a case is an ass? Welcome to the Alice-in-Wonderland world of Compass v Van Tonder, in which Judge Anton Steenkamp says not only that the law applicable to the case was an ass – but goes on to add that as a result he was “reluctantly forced to hand down an asinine judgment”.
Thanks to this “asinine” situation, employee Chris van Tonder, awarded more than R250 000 in damages for unfair dismissal, has lost it all – without even the chance for a court to consider, let alone confirm, that it must be paid.

Read and act

It’s a case that every labour law practitioner and every reader involved with a labour matter in which an arbitration award, made before January 2015, is disputed, needs to get excited about: read the decision and if necessary act quickly to make sure van Tonder’s fate doesn’t befall you as well.
Back in 2012, Van Tonder, sacked by his employer, Compass Group, took his claim of unfair dismissal to the CCMA for arbitration. There, the commissioner found in favour of van Tonder on 14 September 2012, and ordered Compass to pay van Tonder R228 000 in compensation, with payment due to be made by 21 November 2012.
When Compass became aware of the CCMA award in favour of van Tonder, the company decided to challenge the outcome and in December 2012, a month after the money should have been paid, Compass delivered an application for a Labour Court review.
During April 2013 van Tonder delivered an answering affidavit in which he asked that the Compass application for the award to be set aside, should be dismissed.
The review of the commissioner’s award was due to be heard on 10 February 2016, but it got nowhere, for on that date Compass argued, successfully as it turned out, that the claim had prescribed. The finding that van Tonder was unfairly dismissed may well have been upheld by the Labour Court – who knows? – but Judge Steenkamp said that he was not even able to consider the matter of whether the dismissal was unfair. In his decision, delivered this week, he held that the matter had indeed prescribed. The outcome was in his view “not fair”, he said, but there was nothing he could do about it, and important changes to the law introduced in 2015 “came too late for van Tonder”.

Wiped clean

Here’s how van Tonder lost his quarter of a million rand award:
The Prescription Act says that except where an Act of Parliament provides otherwise, debts prescribe after three years. The Labour Relations Act initially said nothing about this possibility, so in van Tonder’s case that means the debt should have prescribed on 20 November 2015 and after that date Compass’s slate was wiped clean.
But it’s not that simple. Over the years there has been lack of clarity, conflicting court decisions and considerable unfairness around the key question of whether the running of the three years towards prescription is “interrupted” if an application for review is made during that time. Surely, you might think, such an application should stop the clock until the labour court considers the award.
To bring certainty to this question, Parliament changed the Labour Relations Act and added an amendment to clarify the issue: the new s 145 (9) says that any application to set aside an arbitration award interrupts the running of prescription. But, devastating to van Tonder’s case on prescription, the new s 145 (10) adds that the amendment only applies to arbitration awards issued after 1 January 2015.
In other words, awards made before that date are still subject to the old regime: three years and you’re out.

Faint hope

There was however, just a faint chance of getting van Tonder back into consideration, and his lawyers, as well as the judge, had a good look at it.
An important decision delivered by the Labour Appeal Court before the law was amended deals with the question of the impact of a pending review application to the running of prescription. In that case, the court said there was something else that a litigant could do to slow down prescription: bring an application asking that the award be made an order of court. Sounds crazy, right? Why would a judge who must decide whether an award is good in law be willing to make that same award an order of court, and thus give it strong legal standing, before even hearing the challenge to the award?
But the appeal court was looking for something that would present an obstacle to prescription; making such an application, in their view, would do the trick. Note that the court didn’t have to agree to make the award an order of court – what counted is merely that the litigant had made such an application.
With that loophole the sole remaining way in which van Tonder could side-step prescription and have a shot at keeping the award, his legal team tried one last argument. Surely, they said, the wording of van Tonder’s answering affidavit, filed in response to the challenge by Compass, would count as an application to have the award made an order of court.
Here’s what van Tonder actually said at the end of his answering affidavit: having responded to the grounds put forward by Compass for setting aside the order, he concluded: “Wherefore I respectfully pray that the … court dismiss the application with costs and confirm the arbitration award as an order of … court.”

“Morally persuasive”

For most ordinary readers this might appear to close the gap. There are the words: “I pray that the court confirm the award as an order of court.” But nothing doing. Even though this argument was “morally and emotionally persuasive”, said the judge, he could not find that these words amounted to “bringing an application to make the award an order of court”, as stipulated by the appeal court.
Court rules make it clear that bringing such an application requires certain steps, such as giving proper notice to all parties. It also has to be brought in a certain format – and van Tonder’s “prayer” at the end of his answering affidavit just didn’t meet the requirements for such an application.
The upshot, said the judge is that van Tonder was “deprived of an award of R228 000”. In words seldom heard these days he continued, “I am not persuaded that justice has been served.” Then he added the kicker: “The law is, in this case, an ass; but I am reluctantly forced to hand down an asinine judgment.”

Who’s the ass?

So just who is the ass here? I would argue that the original drafters of the Labour Relations Act fit the bill. If they had worded the law in a way that made it clear, from the start, that applying for review of an award had the effect of stopping the prescription clock it would have saved enormous heartache and unfairness. Not to mention saving many court hours in arguing the point.
Of course at the time the law was originally framed, few people could have guessed that awards, intended to be final and binding, would prompt so much litigation and that so many litigants would want to challenge the outcome of the arbitration process.
But what about the drafters of the amendment to the law, who saw the problem and moved to solve it? Why didn’t they factor in the very strong possibility that people who had already begun litigating over dismissal would also need the benefits of the amendment? Why didn’t they make the new dispensation applicable to everyone whose disputes were pending, instead of cutting out from the protection of the amendments everyone with matters pre-dating the January 2015 inception date? Why aren’t they also responsible for this idiocy, and for the unfairness experienced by litigants like van Tonder?
True, from January 2018 the problem will no longer arise, but in the meantime many others could get an unexpected kick from the ass of the law. Litigants should therefore look very closely at the relevant dates of the matter they are involved in and take urgent action if necessary, by speeding up the process to bring it into the three year limit, or bringing a formal application for an award to be made an order of court.
In the period until that magical date the law is capable of producing asinine results, as van Tonder knows to his bitter cost. The terrible unfairness of his plight should at least act as a warning to the rest of us.

Compass Group v Van Tonder