IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2233/21
In the matter between:
CLEMENCE MATUNGA Applicant
and
G AND R HYDRAULICS (PTY) LTD First Respondent
COMMISSIONER M. SOMAN N.O. Second Respondent
COMMISSIONER I. SIRKHOT N.O. Third Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL Fourth Respondent
Heard: 30 August 2023
Delivered: 26 January 2024 (This judgment was handed down electronically
by circulation to the parties’ legal representatives by email, publication on the
Labour Court website and release to SAFLII. The date and time for handing-
down is deemed to be 10h00 on 26 January 2024.)
REASONS FOR ORDER
PHEHANE, J
Introduction
[1] On 30 August 2023, I issued an order condoning the late filing of the review
application, reviewing and setting aside the rulings by the second and third
2
respondents and remitting the dispute regarding an automatically unfair dismissal to
the fourth respondent to be conciliated afresh before a commissioner other than the
second and third respondents.
[2] The first respondent seeks reasons for the order. Brief reasons follow below.
Brief chronology and background
[3] On 17 January 2020, an unfair labour practice dispute was referred by the
applicant to the fourth respondent. The dispute concerned the issuance of a final
written warning by the first respondent against the applicant.
[4] On 5 February 2020, the fourth respondent issued a certificate of outcome
recording that the unfair labour practice dispute remained unresolved. On 17 March
2020, the applicant was dismissed from the employ of the first respondent for
misconduct.
[5] On the same day (17 March 2020) the applicant referred an unfair dismissal
dispute to the fourth respondent. The unfair dismissal dispute was set down for
conciliation on 16 April 2020. The conciliation did not take place due to the lockdown
regulations that were imposed as a result of the Covid-19 pandemic.
[6] On 14 August 2020, the applicant referred his unfair dismissal dispute to
arbitration. (The applicant contends that his dispute is an automatically unfair
dismissal dispute).
1
[7] On 8 September 2020, the second respondent consolidated the unfair
dismissal and unfair labour practice disputes. A consolidation ruling was issued.
2
The consolidated dispute was set down for arbitration on 3 December 2020, at which
hearing, the third respondent ruled that the fourth respondent lacked jurisdiction to
determine “dismissals based on victimization and intimidation”.3
1 Founding affidavit at para 12 on p 8.
2 Founding affidavit at para 12 on p 15.
3 Founding affidavit at para 12 on p 16.
3
[8] On 30 December 2020, the automatically unfair dismissal dispute was
referred to this C ourt for adjudication. The first respondent raised a jurisdictional
point in the referral before this Court by way of special plea, contending that this
Court lacks jurisdiction to adjudicate the automatically unfair dismissal as the referral
was launched out of time.4
[9] The special plea was adjudicated by this Court per Mohamed AJ.
[10] The words of Mohamed AJ are not far off the mark when he states that before
him was a “ complicated jurisdictional egg peppered with facts which go back to a
period shortly before the cursed Covid-19 pandemic reached South African shores in
2020” which was necessary to unscramble. His judgment assesses a number of
judgments in this Court and in the LAC that considered when this Court is conferred
with jurisdiction in disputes concerning automatically unfair dismissals. I refer to two
of such judgments below.
[11] In a judgment dated 29 September 2021, Mohamed AJ found that in the
absence of a certificate of non- resolution of the dispute issued by the bargaining
council, this Court lacked jurisdiction to adjudicate the automatically unfair dismissal
dispute.
5 The following orders were issued by Mohamed AJ:
‘1. The Labour Court does not have jurisdiction to adjudicate the claim of an
automatically unfair dismissal in that the MEIBC has not issued a certificate of
deadlock under section 191(5)(b) read with section 191(11) of the Labour Relations
Act 66 of 1995, as amended (“the LRA”).
2. The claim filed by the applicant under the above case number is stayed
pending:
2.1 The finalisation of an application to be launched by the applicant to review
and set aside the rulings issued by the ME IBC under case number is MEGA55697
and a MEGA56063 dated 8 September 2020 3 December 2020 respectively;
4 See: para 3 of the judgment by Mohamed AJ on p 18.
5 See: para 47 and 50 of the judgment by Mohamed AJ on p 34 and 35.
4
2.2 Should the applicant be successful in the review application, the MEI BC is
then directed to either enrol the automatically unfair dismissal claim for conciliation or
issue a certificate of deadlock in respect of the automatically unfair dismissal claim;
2.3 Within 30 days thereafter the applicant is to file a supplementary statement of
claim establishing the jurisdiction of this Court in respect of the automatically unfair
dismissal whereafter the dispute of an automatically unfair dismissal will further
proceed in this Court.
3. Should the applicant not file the review application referred to in 2.1 within 30
days of this order, the order to stay the automatically unfair dismissal claim for
automatically lapse and in such instance the order in paragraph 1 will come into
effect.
4. There is no order for costs.’6
[12] Pursuant to the aforesaid order by Mohamed AJ , the applicant launched this
review application in terms of section 158(1)(g) read with section 145 of the Labour
Relations Act
7 (LRA) to review and set aside the condonation ruling by the second
respondent dated 8 September 2020 and the jurisdictional ruling by the third
respondent dated 3 December 2020. The review application is accompanied by an
application for condonation for its late filing.
Argument
Condonation
[13] Condonation is opposed by the first respondent.
[14] The applicant avers that the dies within which to launch the review application
in respect of the consolidation ruling expired on 19 October 2020 and expired on 13
January 2021 in respect of the jurisdictional ruling. In the circumstances, the delay is
approximately 252 and 191 days late respectively. The degree of lateness is
excessive.
6 Founding affidavit at para 12 on p 36.
7 No. 66 of 1995, as amended.
5
[15] The reasons proffer ed for the delay are that the consolidated dispute was
referred this Court on 30 December 2020 and subsequent to the judgment by
Mohamed AJ, the referral was stayed and the applicant was granted an opportunity
to launch this application within 30 days, which the applicant did in compliance with
the order by Mohamed AJ.
[16] The applicant contends that it has excellent prospects of success on review
and that the first respondent stands to suffer no prejudice as the purpose of the
review is to ensure the jurisdictional defects which were successfully raised by the
first respondent in a special plea in the referral before this Court are dealt with.
[17] In weighing up the degree of delay, and the reasons therefore, the prejudice
to both parties and the prospects of success review application, in the interests of
justice, I exercised my discretion to grant condonation for the late filing of the review
application.
Merits of review application
[18] The applicant contends the second responded exceeded his powers in
consolidating the unfair labour practice dispute and automatically unfair dismissal
disputes which resulted in the consolidated dispute being set down for arbitration in
circumstances where the fourth respondent lacked jurisdiction to arbitrate the
automatically unfair dismissal dispute.
[19] The ground of review in respect of the jurisdictional ruling by the third
respondent is not eloquently pleaded – the applicant states that both the second and
third respondents ought not to have rendered their rulings in circumstances where
the automatically unfair dismissal dispute had not been certified as unresolved. No
supplementary affidavit was filed – the applicant filed a notice in terms of rule
7A(8)(b), stating that he stands by his notice of motion.
[20] In opposing the ground/s of review, the first respondent does not p ut up any
serious opposition other than to state that the jurisdictional ruling is reviewable. The
first respondent concedes that the applicant referred an automatically unfair
6
dismissal dispute to the fourth respondent, which was ultimately consolidated with
his unfair labour practice disput e and denies that the consolidation ruling is
reviewable.8
[21] In National Union of Mineworkers v Hermic Exploration (Pty) Ltd 9 the Labour
Appeal Court (LAC) stated that jurisdiction is conferred on this Court in terms of
section 191(5)(b) read with section 191(11) of the LRA when the C ommission for
Conciliation, Mediation and A rbitration (CCMA) ( or the council with jurisdiction, as
the case may be), issues a certificate that the dispute remains unresolved. This was
followed by this Court in National Union of Metalworkers of South Africa and Another
v BMW (South Africa) (Pty) Ltd.
10
[22] On the facts of the present case, no such certificate was issued by the fourth
respondent. The applicant was unrepresented when he referred his automatically
unfair dismissal dispute to arbitration. The second respondent, sitting as an
arbitrator, exceeded his powers when he consolidated the automatically unfair
dismissal dispute with the unfair labour practice dismissal in circumstances where
the fourth respondent lacked jurisdiction to determine the automatically unfair
dismissal dispute. ( The records of the fourth respondent referral show that the
applicant’s dispute is unfair dismissal on account of him having referred an unfair
labour practice dispute to the fourth respondent).
11 As stated above, the first
respondent concedes the dispute is one of an automatically unfair dismissal. The
automatically unfair dismissal dispute was at no stage, conciliated.
[23] The third respondent sitting as an arbitrator of the consolidated dispute,
loosely states that the fourth respondent lacks jurisdiction to determine di smissals
based on victimization and intimidation without engaging as to the nature of the
dispute before him. I repeat that it is common cause that the nature of the dispute is
an automatically unfair dismissal. No certificate of the non-resolution of the dispute is
issued by the third respondent conferring jurisdiction on this Court as contemplated
in section 191(11) of the LRA.
8 Answering affidavit at paras 5.1 to 5.3 on p 126.
9 [2003] 4 BLLR 319 (LAC) at para 45.
10 (2019) 40 ILJ 1818 (LC).
11 Record: referral for conciliation, p 85 request for arbitration, pp 74, condonation application, p 72.
7
[24] The review application succeed ed due to the second respondent exceeding
his powers and in my view, due to the third respondent failing to exercise his powers
in determining the dispute before him.
[25] The order by Mohamed AJ states that should the revi ew succeed, which it
does, the MEIBC (fourth respondent) is to enrol the automatically unfair dismissal
dispute for conciliation or issue a certificate of non- resolution of the dispute, after
which, the applicant is to file a supplementary statement of claim in his referral
before this Court.
[26] In view of the afore- going, I am not persuaded that the automatically unfair
dismissal dispute has been conciliated. It is for the aforesaid reasons that the
aforementioned order was made, remitting the matter to the fourth respondent.
M. T. M. Phehane
Judge of the Labour Court of South Africa