Fidelity Guards Holdings (Pty) Ltd v Epstein and others (DA25/99) [2000] ZALAC 8 (1 September 2000)

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[2000] ZALAC 8
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Fidelity Guards Holdings (Pty) Ltd v Epstein and others (DA25/99) [2000] ZALAC 8; [2000] 12 BLLR 1389 (LAC); (2000) 21 ILJ 2382 (LAC) (1 September 2000)

23
IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
held in Durban
Case No: DA 25/99
In the matter between:
FIDELITY GUARDS HOLDINGS
(PTY)LTD
Appellant
and
EPSTEIN L M N. O.
First
Respondents
THE COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second
Respondents
SUKHNANAN, MOHANLALL
Third
Respondents
JUDGEMENT
ZONDO JP
Introduction
[1] In this appeal the appellant
appeals against a judgement given by Pillemer AJ in the Labour Court
in which the learned judge
dismissed with costs a review application
which had been brought by the appellant. The review application was
aimed at the reviewing
and setting aside of an arbitration award
previously issued by the first respondent, a commissioner of the
Conciliation Mediation
and Arbitration in respect of a dispute
between the appellant and the third respondent.
The Facts
[2] The third respondent was
employed by the appellant. He was dismissed from the appellant’s
employ. A dispute arose between
the two parties about the fairness
of that dismissal. The third respondent referred the dispute to the
second respondent, (the
Commission for Conciliation, Mediation and
Arbitration) outside the statutory 30 days’ period from the date
of dismissal within
which he was required to have referred it in
terms of sec 191(1)(b) of the Labour Relations Act, 1995 (Act NO 66
of 1995 (
“the Act”
). Attempts were made to conciliate the
dispute but those attempts did not yield any results. The
commissioner who had conciliated
the dispute issued a certificate in
terms of sec 135 of the Act to the effect that the dispute remained
unresolved. Thereafter
the dispute was referred to arbitration. The
arbitration took place. The commissioner who arbitrated the dispute
issued an award
to the effect that the dismissal was unfair and
ordered the appellant to pay the third respondent certain
compensation.
[3] After the issuing of the
arbitration award, the appellant launched an application in the
Labour Court to have the award reviewed
and set aside. The review
application was based on two grounds. The first one, which went to
the issue of jurisdiction, was that
the commissioner who arbitrated
the dispute had no jurisdiction to do so because the conciliation
proceedings had been invalid
because the third respondent had not
made an application for condonation for the late referral of the
dispute even though it had
been referred to conciliation outside the
30 days statutory period and the commissioner had not condoned the
late referral. In
those circumstances, so contended the appellant,
the arbitrating commissioner could not have had jurisdiction to
arbitrate the
dispute.
[4] The second ground went to the
merits of the arbitration proceedings. It was that, having found the
third respondent guilty of
the misconduct he had been charged with
in the internal disciplinary inquiry, the arbitrating commissioner
was not entitled to
interfere with the sanction of dismissal that
the appellant had imposed. It is necessary to state at this stage
that the basis
on which the arbitrating commissioner found the
dismissal unfair was that the appellant had applied discipline to
him in a manner
which was inconsistent with the manner in which it
had applied discipline to other employees who had committed similar
offences.
This point is not covered by the grounds of appeal which
the appellant gave in its notice of appeal. However, for the same
reasons
given by the court a quo, I would have found it to be
without merit even if it was covered by the grounds of appeal.
The jurisdictional point
[5] The jurisdictional question
which this appeal raises relates to the identification and
determination of the true conditions
which must exist under the Act
before a dispute in respect of which an
“unresolved outcome
certificate”
can be arbitrated or adjudicated. Is there one
condition or are there a number of conditions? What are they? What
is the effect
of a failure to comply with them? As the passage I
shall quote shortly will indicate, there are different categories of
jurisdictional
facts.
[6] In SA Defence & Aid Fund &
NO v Minister of Justice 1967(1) SA 31(C) at 34H - 35D Corbett J, as
he then was, had this
to say about jurisdictional facts:.
“
Upon a proper construction of the legislation concerned, a
jurisdictional fact may fall into one or other of two broad
categories.
It may consist of a fact, or state of affairs, which,
objectively speaking, must have existed before the statutory power
could
validly be exercised. In such a case, the objective existence
of the jurisdictional fact as a prelude to the exercise of that
power
in a particular case is justiciable in a Court of law. If the
Court finds that objectively the fact did not exist, it may then

declare invalid the purported exercise of the power (see e.g.
Kellerman v. Minister of Interior ,
1945 T.P.D. 179
; Tefu v.
Minister of Justice and Another,
1953 (2) S.A. 61
(T)). On the other
hand, it may fall into the category comprised by instances where the
statute itself has entrusted to the repository
of the power the sole
and exclusive function of determining whether in its opinion the
pre-requisite fact, or state of affairs,
existed prior to the
exercise of the power. In that event, the jurisdictional fact is, in
truth, not whether the prescribed fact,
or state of affairs, existed
in an objective sense but whether, subjectively speaking, the
repository of the power had decided
that it did. In cases falling
into this category the objective existence of the fact, or state of
affairs, is not justiciable in
a Court of law. The Court can
interfere and declare the exercise of the power invalid on the
ground of a non-observance of the
jurisdictional fact only where it
is shown that the repository of the power, in deciding that the
pre-requisite fact or state of
affairs existed, acted mala fide or
from ulterior motive or failed to apply his mind to the matter. (See
e.g. Minister of the Interior
v. Bechler and others, supra; African
Commercial and Distributive Workers’ Union v. Schoeman, N.O. and
Another
1951 (4) S.A. 266
(T); R.V. Sachs, 1
953 (1) S.A. 392
(AD)”.
[7] In my view where the power to
be exercised is statutory, the answer to the question of what the
jurisdictional fact(s) is (are)
which must exist before such power
can be exercised lies within the four corners of the statute
providing for such power. Accordingly
the provisions of such statute
require to be considered carefully to determine what the necessary
jurisdictional fact(s) is (are).
In the light of this I consider it
necessary to have regard to the provisions of the Act to determine
what the necessary jurisdictional
fact(s) is (are) which must exist
in a case such as this one before it can be arbitrated or
adjudicated in terms of the Act.
(8) Sec 191 of the Act deals with
disputes about unfair dismissals. The provisions of sec 191 (1)-(5)
read thus:.
“
1. If there is a dispute
about the fairness of a dismissal, the dismissed employee may refer
the dispute in writing within 30 days
of the date of dismissal to -
(a) a council, if the parties to
the dispute fall within the registered scope of that council; or
(b) the Commission, if no
council has jurisdiction.
If
the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the dispute after
the
30-day time limit has expired.
The
employee must satisfy the council or the Commission that a copy of
the referral had been served on the employer.
The
council or the Commission must attempt to resolve the dispute
through conciliation.
If
a council or a commissioner has certified that the dispute remains
unresolved, or, if 30 days have expired since the council
or the
Commission received the referral and the dispute remains unresolved
-
(a) the council or the Commission must arbitrate the dispute at the
request of the employee if -
(I) the employee has alleged that the reason for dismissal is
related to the employee’s conduct or capacity unless paragraph
(b)(iii) applies;
(ii) the employee has alleged that the reason for dismissal is that
the employer made continued employment intolerable; or
(iii) the employee does not know the reason for dismissal; or
(b) the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal
is -
(I) automatically unfair;
(ii) based on the employer’s operational requirements;
(iii) the employee’s participation in strike that does not comply
with the provisions of Chapter IV; or
(iv) because the employee refused to join, was refused membership of
or was expelled from a trade union party to a closed shop
agreement.”
[9] Certain of the provisions of sec 135 and 136 of the Act may also
be relevant: The heading to sec 135 is: Resolution of disputes
through conciliation. Sec 135(5) says:-
“
When a conciliation has failed, or, at the end of the 30 day
period or any further period agreed between the parties -
(a) the commissioner must issue a certificate stating whether or
not the dispute had been resolved;
(b) the Commission must serve a copy of that certificate on each
party to the dispute or the person who represented a party in the
conciliation proceedings;
and
(c) the commissioner must file the original of that certificate
with the commission.”
[10] Sec 136(1) of the Act provides:
“
If this Act requires a dispute to be resolved through
arbitration, the Commission must appoint a commissioner to arbitrate
that
dispute if -
(a) a commissioner had issued a certificate stating that the
dispute remains unresolved; and
(b) within 90 days after the date on which that certificate was
issued, any party to the dispute has requested that the dispute be
resolved through arbitration. However, the Commission, on good cause
shown, may condone a party’s non observance of that time
frame
and allow a request for arbitration filed by the party after the
expiry of the 90-days period.”
There is also sec 157 (4)(b). It says:
“
A certificate issued by a commissioner or a council stating
that a dispute remains unresolved is sufficient proof that an
attempt
has been made to resolve the dispute through conciliation.”
[11] It will be clear from the provisions of ss(1) to (5) of sec 191
above that, when there is a dispute about the fairness of
a
dismissal, a certain process may be followed which ultimately leads
to the resolution of such
dispute either by way of
arbitration or by way of adjudication. The first step in that
process is the referral of the dispute to
a council or the CCMA for
conciliation. The second is that the applicant must satisfy the
CCMA or the council that a copy of the
referral has been served on
the other party to the dispute. Subject to sec 191(5) the third step
is that the council or the CCMA
must attempt to resolve the dispute
through conciliation. In terms of sec 191(5) the commissioner must
then issue a certificate
of
outcome
to the effect that the dispute remains unresolved or a period of 30
days must expire after the council or the CCMA received the
referral. Thereafter comes the arbitration of the dispute by the
council or the CCMA or the adjudication of the dispute by the
Labour
Court, as the case may be. The dispute is required to be referred to
either a council or the CCMA within 30 days of the
date of
dismissal. However, if it is not referred within that period, the
council or the CCMA has power to permit a late referral
on good
cause shown.
[12] In my view the language
employed by the legislature in sec 191 is such that, where a dispute
about the fairness of a dismissal
has been referred to the CCMA or a
council for conciliation, and, the council or commissioner has
issued a certificate in terms
of sec 191(5) stating that such
dispute remains unresolved or where a period of 30 days has lapsed
since the council or the CCMA
received the referral for conciliation
and the dispute remains unresolved, the council or the CCMA, as the
case may be, has jurisdiction
to arbitrate the dispute. That the
dispute may have been referred to the CCMA or council for
conciliation outside the statutory
period of 30 days and no
application for condonation was made or one was made but no decision
on it was made does not affect the
jurisdiction to arbitrate as long
as the certificate of outcome has not been set aside. It is the
setting aside of the certificate
of outcome that would render the
CCMA or the council to be without the jurisdiction to arbitrate.
[13] In par 12 of his judgement,
Pillemer AJ said:-
“
If the administrative act of
certification is invalid, even then it must be challenged timeously
because, if not, public policy
as expressed in the maxim omnia
praesumuntur rite esse acta, requires that after a reasonable time
has passed for it to be challenged,
it should be given all the
effects in law of a valid decision. (Cf. O’Reilly v Mackman [1983]
2AC 237,238 and Harnmaker v Minister
of Interior 1965(1) SA 372(c)
at 381)”
I agree with this.
[14] I also agree with the views
expressed by the court a quo in par 15 of its judgement. There the
learned judge had this to say:.
“
I have considered the remarks
of Mlambo J in Van Rooy v Nedcor Bank Ltd [1998] ILJ 1258 (LABOUR
COURT). In that case the learned
judge rejected the submission that
the Labour Court could not interfere with a certificate issued by a
commissioner if the matter
was not brought before the court on
review on the basis that the court has a supervisory role to the
commission and its commissioners.
It is not necessary to consider
whether this court has an inherent power of review in certain
circumstances, but I respectfully
do not agree with the learned
judge when he states that for the court to have jurisdiction to deal
with the matter before it, the
commission must have had jurisdiction
(used in the special sense of such jurisdiction flowing from a
referral made timeously).
To my mind jurisdiction of the court under
section 191(5) flows from the existence of the appropriate
certificate in those classes
of dispute which have to be referred to
the court. Section 157 (4)(b) goes so far as to provide that a
certificate by its mere
production constitutes prima facie proof
that an attempt has been made to resolve the dispute; this, not in
the context of section
195, but generally, limiting the jurisdiction
the court has to refuse to determine a dispute in respect of which
there has been
no attempt as (sic) resolution by conciliation. The
power to issue the certificate is conferred by section 135. That
section requires
the commissioner appointed to resolve the dispute
through conciliation to issue a certificate issued out of time may
be set aside
on review, that is a far cry from the conclusion that
the commissioner lacked power to issue a certificate is a nullity to
be regarded
as pro non scripto and having no legal effect with the
dire consequence that an arbitrator or the court, as the case may
be, has
no jurisdiction to determine a dispute which is otherwise
properly referred to it for resolution after a genuine attempt at
conciliation”.
[15] A question which arises in a
case such as this one is at what stage of the dispute resolution
process contemplated by the Act
should a party who objects on one or
other ground to the processing of the
dispute institute review
proceedings? In the absence of a statutory provision to the
contrary, I am of the opinion that it should
be done within a
reasonable time. The question which arises is whether that means
before any further steps are taken after the
event giving rise to
the objection or that means within a reasonable time after the party
has allowed the entire process to be
concluded so that it can see
whether its objection does not become academic for one or other
reason in the process.
[16] Where a dismissal dispute has
been referred to the CCMA or a council for conciliation, there are a
few matters which can possibly
give rise to a jurisdictional
objection by, for example, the
“employer”
. The one is
that it can be disputed that there was an employer - employee
relationship between the parties. Another one could
be that the
referral is outside the 30 days period and that, therefore, the
Council or the CCMA has no jurisdiction to conciliate
the dispute.
Yet another one, which has been taken in some cases which have come
before the Labour Court, is that the referral
form was not signed by
the employee but by someone else and that such referral is not valid
and therefore, that the CCMA or the
council, lacks jurisdiction.
[17] If the employer is aware of
anyone of the above possible grounds of objection, he would have to
consider what he must do about
them. He would have to consider
whether he should immediately rush off to a court of competent
jurisdiction to seek an order to
the effect that the CCMA or the
Council has no jurisdiction to conciliate the dispute or whether he
should first raise the objection
before the commissioner appointed
to conciliate and go to such court only if the ruling is against him
or whether he should raise
the objection before the conciliating
commissioner and even if the ruling is against him, proceed to
participate in the conciliation
process because, if the matter is
resolved at conciliation, the ruling against him will become
academic and in that way he will
avoid the legal costs which would
be involved in approaching a court.
[18] If the dispute is not
resolved at conciliation stage, he would have to consider whether he
should then rush off to a court
of competent jurisdiction at that
stage to obtain an appropriate order on whether or not the CCMA or
the council has jurisdiction
to proceed to arbitrate the dispute. He
would consider whether he should wait and see if the employee takes
the dispute to arbitration
or to the Labour Court after conciliation
has failed before he can take the costly route of approaching a
court for a ruling on
jurisdiction. He may legitimately think that
he should reserve his rights and participate in the arbitration
proceedings on the
basis that , if the arbitrator finds in his
favour on the merits which is likely to be a cheaper route in some
cases if not most
- he will avoid legal costs but if he rushes off
to court before the arbitration is completed, he may waste money on
court proceedings in a case where he may be likely to end up
with an award in his favour any way.
[19] If the employer approached the
court after the referral but before even the conciliation could
start and sought a ruling that
the council or the CCMA
did
not have jurisdiction on one or more of the grounds of objection I
referred to earlier, he might be unsuccessful and might
have to come
back to participate in the conciliation process anyway. Then, maybe,
he might have to approach the court again after
the conclusion of
the arbitration proceedings if the award is against him if he
believes that the arbitrating commissioner has
committed one or
other reviewable irregularity entitling him to have the award set
aside. That would be
a second trip to the court. If,
however, he raised whatever objections
he has before the CCMA or the
Council but participated in the process
upto the end of the
arbitration proceedings before rushing off to court, this may be
cost effective, more convenient and may avoid
a duplication or
multiplication of court proceedings. It will also not overburden the
court.
[20] I think from the above it
should be clear that whether or not a party should approach the
court about jurisdictional objections
before or after the completion
of the processes before the CCMA or the council is not a simple
question. I doubt that a hard and
fast rule can be made about it.
Considerations which this issue raises are not altogether dissimilar
to some of the considerations
which our courts have to deal with
from time to time in different contexts (see. Nugent J in
Liberty
Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC) at
676G-680J;
Nicholson J
in
Gordon Verhoef & Krause
& Another v Azanian Workers Union & others (1997) 18 ILJ 707
(LAC) and Galgut J
in connection with the in medias res rule in
Zondi & others v President Industrial Court and others (1991)
12 ILJ 1295 (LAC) esp at 1300c - 1303A.)
[21] In conclusion I am unable to
find that the court a quo erred in any way in dismissing the review
application. In fact I am
satisfied that the judgement of the court
a quo is correct in upholding that as long as the certificate of
outcome stands, the
CCMA has jurisdiction to arbitrate the dispute.
[21] In the result the appeal falls
to be dismissed. It is dismissed with costs.
_______________
RMM Zondo
Judge President
I agree
_____________
C.R Nicholson
Judge of Appeal
I agree
______________
R. Nugent
Acting Judge of Appeal
Appearances:
For the Appellant : Mr S. Snyman
Instructed by : Snyman Van Der
Heever Heyns
For the 3
rd
Respondent
: M Sukhnanan
Instructed by :
Date of hearing : 30 May 2000
Date of judgement : 2000