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[2020] ZALAC 42
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Mngadi v Jenkin NO and Others (DA 7/2019) [2020] ZALAC 42; [2021] 3 BLLR 248 (LAC); (2021) 42 ILJ 768 (LAC) (24 November 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, DURBAN
Reportable
Case no: DA 7/2019
In the matter between:
MANDLENKOSI LIONEL
MNGADI
Appellant
and
GARTH JENKIN NO
First respondent
THE
CCMA
Second respondent
HULAMIN
LIMITED
Third Respondent
Heard:
22 September 2020
Delivered:
24 November 2020
Summary:
CCMA
conciliation proceedings—Referral of dispute—Date when
dispute arises—Alleged unfair discrimination in terms
of
Employment Equity
Act
55 of 1998
—
Conduct
complained of not single act but continual and
repetitive—Unnecessary
therefore
to specify date that dispute arose—Dispute ongoing—Referral
not out of time or requiring condonation of late
referral.
Coram:
Coppin JA, Murphy AJA and Savage AJA
JUDGMENT
MURPHY AJA
[1]
This is an appeal against a judgment of the Labour Court (Gush J)
dismissing an application
to review a ruling of the first respondent
(“the commissioner) refusing condonation for the alleged late
referral of a dispute
in terms of section 10 of the Employment Equity
Act
[1]
(“the EEA”).
[2]
The appellant was employed by the third respondent in 1999 and
remains in employment.
He has been employed as a shift leader grade
11 since 2008. Prior to 2008, he was employed as an operator. As a
grade 11 employee,
the appellant does not fall within the defined
bargaining unit and thus the scope of the collective agreement (“the
house
agreement”) concluded by the third respondent and the
trade unions representing employees within the bargaining unit. The
appellant maintains that his exclusion from the scope of the house
agreement since his promotion in 2008 amounts to discrimination
in
that he is paid less than his subordinates and does not qualify for
certain benefits. His complaint more specifically relates
to: i) the
payment of lesser annual salary increments since October 2008; ii)
the incorrect payment of his “standing-in allowance”
in
January–February 2013 and 2015; iii) not being appropriately
compensated for his “off days” in January-February
2013
and 2015; and iv) not being appropriately compensated for working the
“Four/Continental shift system” since 2008.
[3]
On 21 July 2016, the appellant referred an unfair discrimination case
to the second
respondent (“the CCMA”) in terms of section
10 of the EEA alleging unfair discrimination on an arbitrary ground
in
contravention of section 6(1) of the EEA.
[4]
The issue in this appeal relates to the interpretation and
application of sections
10(2) and 10(3) of the EEA which read as
follows:
‘
(2)
Any party to a dispute concerning this Chapter may refer the dispute
in writing to the CCMA within six months after the act
or omission
that allegedly constitutes unfair discrimination.
(3)
The CCMA may at any time permit a party that shows good cause to
refer a dispute after the relevant time limit set out in subsection
(2).’
[5]
In a statement attached to his referral to the CCMA, the appellant
averred (in relevant
part) as follows:
‘
Section
10(2) of the EEA requires that a party to a dispute in terms of s 6
“may refer the dispute in writing to the CCMA
within 6 months
after the act or omission that allegedly constitutes unfair
discrimination.” Condonation for a late referral
can be
granted, in terms of s 10(2), on good cause shown.
On
parity of reasoning with
SABC Ltd v CCMA
and others
[2010] 3
BLLR 251
(LAC) (where it was found that the date that an unfair
labour practice arises does not coincide with its commencement date
when
the nature of the unfair labour practice is such that it is
ongoing – in such case, the dispute can be referred at any
time),
it is submitted that there is no need for a condonation
application….In the event that this is incorrect, condonation
is
applied for in the alternative in respect of the failure to pay
the correct standing-in allowance…’
[6]
In an affidavit annexed to his referral, the appellant made out a
case for condonation
by addressing the relevant issues: the degree of
lateness; the reasons for lateness; and the prospects of success.
However, he
confined the condonation application to the issue of his
not being paid “the correct standing-in allowance” per
the
house agreement in February 2013 and February 2015. He thus
recorded the degree of lateness as being two years and 11 months and
11 months respectively. As regards the reasons for lateness, he set
out that he had been pursuing internal remedies and seeking
legal
advice. As for his prospects of success, he merely averred that he
had excellent prospects without setting out clearly the
evidence or
submissions upon which he based that conclusion.
[7]
The third respondent filed an answering affidavit contesting
inter
alia
the appellant’s application for condonation in terms
of section 10(2) of the EEA. It denied that it refused to correct the
alleged act or omission “on an ongoing basis”, submitted
that the appellant’s explanation for the degree of lateness
was
not a reasonable explanation for the delay and challenged the
appellant’s claim of reasonable prospects of success,
principally on the ground that as a salaried employee, he did not
qualify for the benefits under the house agreement.
[8]
It is trite that before the CCMA can have jurisdiction to conciliate
a dispute, the
dispute must have been referred to it within the
prescribed time periods or condonation must have been granted for a
failure to
do so.
[2]
This may
require a preliminary determination of jurisdiction by the
commissioner. The CCMA has no capacity or power to conciliate
without
the necessary jurisdiction. There can be no conciliation, once a
jurisdictional point arises until jurisdiction has been
determined.
Unless the necessary jurisdictional facts are found to be present,
the process of conciliation cannot be engaged and
thus jurisdiction
must necessarily be established at the outset of the process.
[3]
The determination of the jurisdictional issue of necessity must
precede the conciliation process.
[4]
[9]
The commissioner in his ruling on jurisdiction did not pronounce on
whether the referral
was out of time but appears to have assumed that
it was, at least in some respects. He formulated the enquiry he
proposed to undertake
as follows:
‘
While
copious argument has been presented by both parties relating,
inter
alia
, to the degree of lateness,
whether or not condonation is even required for certain aspects of
the dispute – due to the ongoing
nature of the alleged
discrimination, what aspects of the dispute could possibly require
condonation and whether or not certain
aspects of the Applicant’s
claim have prescribed. I intend firstly to deal with the essence of
the parties’ arguments
in regard to the Applicant’s
prospects of success.’
[10]
Although the commissioner did not say as much, in deciding the
application for condonation he
had in mind the factors normally
relevant: the degree of lateness; the explanation given for the
lateness; the prospects of success;
and the importance of the
matter.
[5]
The commissioner was
evidently aware of the appellant’s contention that condonation
was not required because the alleged
dispute related to ongoing or
repetitive discrimination. However, he failed to engage with the
question or to make a ruling in
relation to it. Instead, he refused
condonation for what he believed was a late referral and declined
jurisdiction to conciliate
on the grounds that good cause had not
been shown as the appellant had poor prospects of success on the
merits.
[11]
The commissioner’s ultimate conclusion though rested on his
view that the appellant’s
“prospects of succeeding in
proving that he has been/is being unfairly discriminated against, on
arbitrary grounds, are poor.”
The commissioner considered the
following factors: i) the claim was primarily rooted in differences
in remuneration arising out
of collective bargaining; ii) the
appellant voluntarily accepted the appointment to salaried staff;
iii) salary differentials resulting
from collective bargaining and
other factors are not unusual; and iv) the appellant’s
remuneration was on par with other
grade 11 employees. He then
refused condonation on the following basis:
‘
I
am not convinced that Applicant has made out a
prima
facie
case showing that he has
prospects of proving that he has been discriminated against on the
grounds that his grade is not covered
by the House Agreement
viz.
that the reason for his grade not being covered by the House
Agreement is arbitrary/irrational.’
[12]
The appellant filed an application for review with the Labour Court
seeking an order setting
aside the commissioner’s
jurisdictional ruling and requesting in prayer 2 of the notice of
motion an order to the effect
that condonation for the referral of
the unfair discrimination case “outside of the 6-month period
prescribed by section
10 of the [EEA] is not required”.
[13]
The prayer in paragraph 2 of the notice of motion is somewhat
ambiguous. However, the appellant
set out his case in the founding
affidavit. With reference to the decision of this court in
SABC
Ltd v CCMA and Others,
[6]
he maintained that there was no need for him to have applied for
condonation of the referral “outside of the time period
prescribed” by section 10(2) of the EEA since the unfair
discrimination related to remuneration and benefits and was ongoing
in nature. The time bar in section 10(2) of the EEA, he argued, does
not apply to ongoing and repetitive discrimination. He pointed
out
that he had applied for condonation in the alternative solely in
relation to his not having been paid the correct standing-in
allowance, which he accepted might not have been an act or omission
of an ongoing nature. He accordingly contended that the commissioner
had misdirected himself in failing to address his primary submission
that an application for condonation was not necessary at all
because
of the ongoing or repetitive nature of the alleged discrimination.
[14]
The Labour Court noted in its judgment that the parties had agreed
that the only issue it was
required to decide in the application was
whether the appellant “in fact required condonation”. The
Labour Court defined
the issue thus:
‘
The
crisp issue therefore relates solely to the question whether the
referral of the dispute regarding the alleged discrimination
was
referred timeously. Did the act or omission that founds the
applicant’s alleged discrimination take place or occur at
the
time of the applicant’s acceptance of his promotion or was it
ongoing? If I am satisfied that the alleged discrimination
was
ongoing then the award of the first respondent should be reviewed and
set aside and the applicant be entitled to pursue his
dispute through
conciliation.’
[15]
Counsel for the appellant submitted to the Labour Court that it
should not consider the merits
of whether a case of discrimination
had been made out but rather limit the review to determining if there
was a right to refer
a dispute to conciliation. The Labour Court
rejected that contention as follows:
‘
It
could never be the intention of the legislature that an
unsubstantiated and unspecified claim of discrimination would found a
dispute capable of adjudication. This is particularly so in the light
of the provisions of section 11 of the [EEA] that requires
an
employer to prove on a balance of probabilities that the
discrimination complained of did not take place; or was rational and
not unfair; or is otherwise justifiable……I am conscious
of the decision of the Labour Appeal Court in the [
SABC
]
matter… in which the court found that the discrimination was
ongoing accordingly the provisions of section 10 of the [EEA]
did not
apply. In this matter however the applicant’s dispute arises
solely from his promotion to grade 11. The absence of
any detail as
to how the promotion constituted unfair discrimination determines the
date on which the act or omission arose (sic)
and accordingly the
commencement of the six-month time within which to refer a dispute.
In determining a fixed period within which
a dispute may be referred
it could not have been within the contemplation of the legislature to
allow an employee who is aware
and conscious of the discrimination of
which he complains as well as the cause and date of the act or
occurrence he relies on,
to simply wait an inordinate amount of time
(8 years) before seeking redress by availing himself of the
provisions of the Act.’
[16]
The Labour Court accordingly held that the appellant was obliged to
apply for condonation. In
light of a concession by the appellant not
to challenge the commissioner’s ruling if condonation was
required, the Labour
Court dismissed the application and upheld the
ruling.
[17]
The appellant’s claim that he was unfairly discriminated
against on the arbitrary ground
that his grade is not covered by the
house agreement, and was paid at a lower rate, in effect alleges that
the discrimination was
ongoing since his promotion or at least was a
repetitive monthly act or omission occurring with every salary
payment.
[18]
Both the Labour Court and the commissioner proceeded on the
assumption that the dispute had been
referred out of time and,
accordingly, that condonation was required. Both failed to appreciate
the appellant’s argument
that the dispute was not out of time
because the discrimination was ongoing or repetitive. The
commissioner, though aware of the
contention, did not address or
apply his mind to it but simply determined the matter on the
assumption that condonation was required.
The Labour Court found that
condonation was required because of the “absence of detail
about the discrimination”.
[19]
The Labour Court’s finding that the merits of a dispute are
relevant to the determination
of jurisdiction is mistaken. Whether a
claim is meritorious or whether it is good in law is immaterial to
the question of jurisdiction.
[7]
Where jurisdiction depends on the discretionary power to grant
condonation, the merits will play a role insofar as the commissioner
or court is required to consider the prospects of success. But when,
as in this case, a party alleges that jurisdiction
ratione
temporis
exists
(and condonation is therefore not necessary) the merits of the claim
are unrelated to that enquiry. It was hence incorrect
for the Labour
Court to find that the CCMA had no jurisdiction to conciliate the
dispute merely because it had doubts about the
merits of the dispute.
[20]
I
n
SA
Broadcast Corporation Ltd v Commission for Conciliation, Mediation
and Arbitration & others
[8]
the applicants complained about the promotion of three artisans
resulting in ongoing discrimination in terms of which those artisans
were favoured at their expense. This court held that since the
applicants
were
continually being paid at a lower rate, the discrimination was not a
single act but a “continuing or repetitive”
act that
recurred on each pay date. Applying that reasoning to the
present case, the appellant’s referral of his dispute
in
relation to the alleged ongoing and repetitive discrimination was not
out of time, at least in relation to the payment of his
salaries
(discrete repetitive acts) in the six months prior to his referral.
Condonation was not required to conciliate the alleged
dispute with
regard to those past payments and intended future payments.
Consequently, the commissioner erred in declining jurisdiction
entirely to conciliate the alleged dispute and the Labour Court erred
in holding otherwise.
[21]
The appropriate remedy is for the dispute to be referred back to the
CCMA to be conciliated by
a different commissioner in accordance with
the findings of this judgment.
[22]
Fairness dictates that there should be no order for costs.
[23]
The appeal is upheld. The ruling of the commissioner is set aside and
the dispute is remitted
to the second respondent for conciliation in
terms of section 10(7) of the EEA read with section 135 of the Labour
Relations Act
[9]
by a
commissioner other than the first respondent.
________________
JR Murphy
Acting Judge of Appeal
Coppin
JA and Savage AJA concur in the judgment
APPEARANCES:
FOR THE APPELLANT:
Adv. DP Crampton
Instructed by Austin
Smith Attorneys
FOR THE RESPONDENT:
Adv LR
Naidoo
Instructed
by Edward Nathan Sonnenberg
[1]
Act
55 of 1998.
[2]
Fidelity
Guard Holdings (Pty) Ltd v Epstein NO and Others
[2000] 12 BLLR 1389
(LAC) para 16
[3]
Shell
SA Energy (Pty) Ltd v National Bargaining Council for Chemical
Industry & others
(2013) 34
ILJ
1490 (LAC) paras 11-13 and 21.
[4]
Shell
SA Energy (Pty) Ltd v National Bargaining Council for Chemical
Industry & others
(2013) 34
ILJ
1490 (LAC) para 13.
[5]
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (A).
[6]
[2010]
3 BLLR 251 (LAC).
[7]
Makhanya
v University of Zululand
2010 (1) SA 62
(SCA) para 95.
[8]
(2010) 31 ILJ 592 (LAC).
[9]
Act
66 of 1995.