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1999
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[1999] ZALAC 37
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Fidelity Guards Holdings (Pty) Ltd v National Union of Security Officers and Guards (NUSOG) obo Lomax (CA16/ 98) [1999] ZALAC 37 (28 September 1999)
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD IN CAPE TOWN
CASE NO CA 16 / 98
In the matter between:-
FIDELITY
GUARDS HOLDINGS (PTY) LTD
Appellant
and
NATIONAL
UNION OF SECURITY OFFICERS AND
Respondent
GUARDS
(NUSOG) obo BERNER EMIL LOMAX
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
MOGOENG
AJA
[1] Mr Berner Emil
Lomax (âLomaxâ) was employed by the Appellant in 1983. He was
dismissed on 11 December 1996. His dismissal
was confirmed on the
first and second level appeal on 18 December 1996 and 27 January 1997
respectively. He was a member of an unregistered
body known as the
Employeesâ Representative Council (âthe ERCâ) at all times
material hereto.
[2] Subsequent to the
aforegoing appeals, Lomax lost confidence in the ERC . As a result,
he joined the National Union for Security
Officers and Guards (
âNUSOGâ ) to deal with the dispute further. Acting on this
mandate, NUSOG referred the dispute to the CCMA
on 30 January 1997.
[3] The Appellant
objected to such a referral on the basis that the jurisdiction of the
CCMA was ousted by the recognition agreement
which it had concluded
with the ERC on 23 September 1991. That agreement embodies an
arbitration clause which provides that after
the appeal stages âit
shall become compulsory to refer the matter to arbitration.â The
parties contemplated private arbitration,
preferably under the
auspices of the Independent Mediation Service of South Africa
(âIMSSAâ). As a result of this objection,
the CCMA did not
entertain the dispute.
[4] On or about 16 July
1997 the ERC referred the dispute to IMSSA on behalf of Lomax. The
Appellant refused to cooperate in the appointment
of an arbitrator on
the grounds that the delay preceding that referral was inordinate. It
was not prepared to allow the matter to
proceed to arbitration and
regarded it as closed.
[5] The next step taken
by NUSOG on behalf of Lomax was to apply to the Labour Court for an
order in the following terms:
â(1) Ordering the Respondent to comply with
its obligation to have the dispute invoked by the Applicantâs
member, Berner Emil
Lomax, in terms of Respondentâs recognition
agreement with its Employees Representative Council ( âthe ERCâ
), arbitrated under
the auspices of the Independent Mediation
Services of South Africa in order to give effect to
section 158
(3)(d) of the
Labour Relations Act, 66 of 1995
.â
[6] The learned Judge
arrived at the conclusion that she could not grant Lomax the order as
prayed for. She made the following order
instead:
â1. âThe applicants are entitled to refer
the first applicantâs dispute to the Commission for Conciliation,
Mediation and Arbitration.
2. The Commission for Conciliation, Mediation
and Arbitration has the necessary jurisdiction to conciliate this
dispute.
3. The respondent is
ordered to pay the costs of the applicant in this matter.â
[7] I
have examined all the grounds on which the Appellant bases its appeal
against the judgment of the court
a quo
. The only fundamental
issue which stands out is whether the totality of the facts can
sustain the order granted. I will, therefore,
confine myself to the
facts which are relevant to the determination of this issue.
[8] As I said above,
the ERC and the Appellant concluded a recognition agreement which
also makes provision for compulsory private
arbitration. In terms of
item 13 of Schedule 7 to the Labour Relations Act No. 66 of 1995
(âthe Actâ), a recognition agreement
is deemed to be a
collective agreement. A collective agreement binds members of every
other party to it (see s23(1)).
[9] NUSOG referred the
dispute to the CCMA in January 1997. In July 1997 the dispute was
referred to IMSSA by the ERC. It follows
that Lomax was still a
member of the ERC which is a party to the abovementioned collective
agreement even after he had joined NUSOG.
[10] It is common cause
between the parties that the arbitration clause of the abovementioned
agreement was and is binding on them.
It was their common
understanding that only IMSSA or a similar private body had
jurisdiction over their dispute and not the CCMA.
It was for this
reason that NUSOG and Lomax brought an application to the Labour
Court for an order intended to facilitate the application
or
enforcement of the arbitration clause.
[11] The
order sought by the Respondent(s) required the Labour Court to
adjudicate a dispute about the interpretation or the application
of a
collective agreement. Section 24 of the Act vests such powers on the
CCMA. The court
a quo
was therefore correct to conclude that
it did not have jurisdiction to entertain such an application, as a
forum of first instance.
It was also correct in refusing to grant the
order prayed for.
[12] As
a result of this finding of the court, a superficial reading of the
order may well lead one to think that the Labour Court
intended to
âreferâ the question of the interpretation or application of the
recognition agreement to the CCMA. However, a closer
scrutiny of the
order suggests otherwise. The court
a quo
stated that the
Respondent(s) was âentitled to refer the.....disputeâ to the CCMA
and that the CCMA has âthe necessary jurisdiction
to conciliate the
dispute.â Clearly, the dispute referred to is the one which arose
from Lomaxâs dismissal and not the interpretation
or application of
the recognition agreement.
[13] A case was not
made out for the order granted. Appellant could not have understood
the granting of such an order to be part of
the case it had to meet.
It was therefore effectively denied the opportunity to express itself
on such a possible order.
[14] By referring the
dispute to the CCMA, the court order flew in the face of the clear
and binding provisions of the agreement and
rendered the arbitration
clause nugatory. Such an order cannot stand.
I am satisfied that the appeal must be upheld.
In the result, I make the following order:
The appeal is upheld with costs.
The order of the Labour Court is set aside and
the following is substituted therefor:
â (i) The application is dismissed.
(ii) There will be
no order as to costs.â
________________
MOGOENG AJA
I agree
______________
CONRADIE
JA
I agree
_______________
NICHOLSON
JA
Appearances:
Appearing for the
Appellant: Mr S Snyman instructed by Snyman van der Heever Heyns
Attorneys.
Appearing for the
Respondent: Mr C Wilson instructed by National Union of Security
Officers and Guards.
Date of hearing: 1
September 1999
Date of judgment:
28 September 1999