Premier Gauteng and Another v Ramabulana N.O and Others (JA 62/05) [2007] ZALAC 16; [2008] 4 BLLR 299 (LAC); (2008) 29 ILJ 1099 (LAC) (21 December 2007)

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[2007] ZALAC 16
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Premier Gauteng and Another v Ramabulana N.O and Others (JA 62/05) [2007] ZALAC 16; [2008] 4 BLLR 299 (LAC); (2008) 29 ILJ 1099 (LAC) (21 December 2007)

27
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA HELD JOHANNESBURG
Case no: JA 62/05
IN
THE MATTER BETWEEN
PREMIER GAUTENG 1
st
Appellant
MEMBER
OF THE EXECUTIVE
COUNCIL
FOR SOCIAL SERVICES
AND
POPULATION DEVELOPMENT,
GAUTENG PROVINCIAL GOVERNMENT 2
nd
Appellant
AND
L RAMABULANA N.O 1
st
Respondent
PUBLIC
HEALTH AND WELFARE
SECTOR BARGAINING COUNCIL 2
nd
Respondent
V
Vena 3
rd
Respondent
NEHAWU
4
th
Respondent
JUDGMENT
ZONDO JP
[1] I have had the opportunity of reading the judgment
prepared by Jappie JA in this matter. I agree with that judgment. The
reasons
for the conclusion that Jappie JA has reached in the matter
are based on the provisions of the collective agreement containing
the
dispute resolution procedure applicable to this matter. The
purpose of this judgment is to provide additional reasons that are
based
on provisions of the Labour Relations Act, 1995 (Act 66 of
1995) (“
the Act
”)
which also justify the same conclusion reached by Jappie JA. I
proceed to do so below.
[2] The
facts of this matter are very brief and are common cause. The third
respondent was employed by the Gauteng Provincial Government
in the
Department of Social Services and Population Development. The first
appellant is the Premier of the Gauteng Province. The
second
appellant is the Member of the Executive Council responsible for
Social Services and Population Development. The first respondent
is
the arbitrator whose ruling was the subject of a review application
in the Labour Court which led to this appeal. He was cited
in his
official capacity as such. The second respondent is the Public Health
and Welfare Sector Bargaining Council. The fourth respondent
is the
National Health and Allied Workers Union. The third respondent is a
member of the union.
[3] The
third respondent was dismissed from the employ of the Gauteng
Provincial Government. A dispute arose between him and his union,
on
the one hand, and, on the other, the appellants about the fairness of
the dismissal. The union referred the dispute to the bargaining
council for conciliation. The referral was made within the prescribed
period of 30 days from the date of dismissal. The union and
the
employee failed to attend a subsequent conciliation meeting convened
by the bargaining council to try and resolve the dispute
through
conciliation. They did not in any way contact the bargaining council
as for a postponement or to convey to the bargaining
council any
difficulties they might have had.
[4] At the conciliation meeting the appellants were
represented but, as already stated, the third and fourth respondents
were not.
The conciliator who had been assigned by the bargaining
council to conciliate the dispute in the conciliation meeting did not
issue
a certificate to the effect that the dispute remained
unresolved. He indicated that he satisfied himself that the union had
been
notified of the conciliation meeting nor did he postpone it. He
concluded that “
the matter
”
be “
dismissed
”. He
did this in a written ruling.
[5] Subsequently the union referred the dispute to the
bargaining council for conciliation for a second time. As that
referral was
made outside the prescribed period of 30 days from the
date of dismissal, the union also submitted an application for the
condonation
of the late delivery of such referral. The appellants
opposed the second referral and the condonation application on the
basis that
the initial referral had been dismissed and because of
that the conciliation had no jurisdiction to entertain a second
referral and
the condonation application. In due course the first
respondent, also a conciliator of the bargaining council, granted the
union’s
condonation application.
[6] Aggrieved by the first respondent’s decision to
grant the union condonation, the appellants launched an application
in the Labour
Court to have the first respondent’s decision
reviewed and set aside on the basis that the first respondent had no
jurisdiction
in the matter as the matter had already been dismissed
by the first conciliator. The Labour Court chose to approach the
matter on
the basis that the union’s condonation application had to
be treated as an application for the rescission of the first
conciliator’s
decision. On this basis the Labour Court, per Revelas
J, concluded that the first respondent was right in granting the
condonation
application. It, accordingly, dismissed the appellant’s
review application. The Labour Court subsequently granted the
appellants
leave to appeal to this Court.
The appeal
[7] The
first issue that this appeal raises is what power or authority the
bargaining council’s first conciliator had when neither
the union
nor the third respondent attended the conciliation meeting and what
to “
dismiss
” the
matter, as the first conciliator put it, means in such a context.
[8] In a case such as this the statutory framework
governing the dispute resolution processes in regard to unfair
dismissal disputes
is primarily to be found in the Act. Therefore,
one must start with the Act and ask what, if anything, it provides
should happen
in a case where the employee party fails to attend a
conciliation meeting after referring the employee’s dismissal
dispute to the
CCMA or the relevant bargaining council for
conciliation.
[9] Sec 191(a) of the Act provides that
“(i)f
there is a dispute about the fairness of a dismissal, or a dispute
about an unfair labour practice, the dismissed employee
or the
employee alleging an unfair labour practice may refer the dispute in
writing to:
(i) a council, if the parties to the dispute fall
within the registered scope of that council; or
(ii) the Commission, if no council has jurisdiction
”
Sec 191(1)(b)(i) provides that a referral in terms of
paragraph (a) must be made within 30 days of the date of a dismissal,
or, if
it is a later date, within 30 of the employer making a final
decision to dismiss or to uphold the dismissal.” Sec 191(2)
provides
that “(i)f the employee shows good cause at any time, the
council or the Commission may permit the employee to refer the
dispute
after the relevant time limit in subsection 1 has expired.
Sec 191(3) requires the employee to satisfy the council or the CCMA
that
a copy of the referral has been served on the employer. Sec
191(4) and (5) of the Act read as follows:
“
(4) The council or the Commission must attempt to
resolve the dispute through conciliation.
If the 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 –
the council or the Commission must arbitrate the
dispute at the request of the employee if –
…
…
…
the employee may refer the dispute to the Labour
Court for adjudication if the employee has alleged that the reason
for dismissal
is –
…
…
…
…”
[10] What the provisions of sec 191(4) mean is that,
once the CCMA or a bargaining council with jurisdiction, has received
a referral
of a dismissal dispute as contemplated in sec 191(1) of
the Act for conciliation within the prescribed period of 30 days or,
I am
sure, within a longer period and has condoned the late referral,
the CCMA or the bargaining council has an obligation to attempt
to
conciliate it. While in many cases this may mean that the parties
must be physically present at a conciliation meeting, I do not
think
that it can be said that the CCMA or a bargaining council cannot
undertake attempts to conciliate a dismissal dispute simply
because
one party is not physically at the conciliation venue even if he is
only a telephone call away and is available to telephonically
participate in attempts at conciliation. Accordingly, simply because
a party did not arrive at the conciliation venue should not
automatically lead to no attempts being made to conciliate the
dispute. Indeed, the Act does not anywhere confer on the CCMA or a
bargaining council power to dismiss an employee’s referral of a
dismissal dispute simply because he failed to attend the conciliation
meeting. If there is such a power, it certainly is not in the Act.
And the CCMA is a creature of statute that, generally speaking,
derives its powers from the Act. Of course, it can also derive some
of its powers from its rules governing the dispute resolution
process
that it is empowered to undertake. Needless to say, its rules should
not be in conflict or inconsistent with provisions of
the Act. Where
they are, the Act will obviously prevail and such rules would be
ultra vires.
[11] What
the provision of sec 191(5) of the Act means is that two
eventualities are provided for when the CCMA or a bargaining council
has received the referral of a dismissal dispute within the
prescribed period for conciliation. Either there will be attempts to
conciliate or there will be no attempts at conciliation within the
prescribed period. It seems to me that there will be no attempts
where none can be made because the one party is not present at the
conciliation meeting or both are not present at the conciliation
meeting and can simply not be contacted during that period. In such a
case no attempts can be made. The other is where attempts can
be
made. Where they have been made and they have been unsuccessful, the
conciliator can or must issue a certificate that the dispute
remains
unresolved.
[12] Where no attempts could be made or were made –
may be because one of the parties was out of reach or could not for
some or
other reason be reached, no certificate is made that the
dispute remains unresolved but, once a period of 30 days from the
date when
the CCMA or the bargaining council received the referral
has lapsed, the consequence is the same. It is that the employee
acquires
the right to have his dispute either arbitrated if he so
requests or to have it adjudicated by the Labour Court if he refers
it to
that Court for adjudication.
[13] Whether the dispute goes to arbitration or
adjudication depends on whether the case falls within the ambit of
either sec 191(5)(a)
or (b) of the Act. This means that a failure by
the employee to attend a conciliation meeting convened pursuant to
his referral of
his dispute to the CCMA or a bargaining council for
conciliation does not take away, and, cannot possibly to take away,
from him
the right which sec 191(5)(a) or (b) gives him to have his
dispute arbitrated if he so requests or adjudicated if he refers it
to
the Labour Court for adjudication.
[14] It might be helpful to consider what, if anything,
the Rules of the CCMA provide should happen in the event of a
situation such
as the one that arose in this case. Sec
115(2)(CA)(iii)(aa) and (bb) of the Act empowers the CCMA to make
rules:
(iii) regulating the practice and procedure-
for any process to resolve a dispute through
conciliation
at arbitration proceedings;
[15] Rule 13 of the CCMA Rules bears the heading: “
What
happens if a party fails to attend or is not represented at
conciliation
.” Rule 13(1) requires a party
to a dispute to “
attend a conciliation in
person, irrespective of whether they are represented
.”
It would not be surprising if the validity of this rule were
questionable since the Act does not contemplate that there would
necessarily have to be a conciliation meeting and certain rights are
conferred on the employee simply by reason of the fact that
a period
of 30 days from the CCMA’s receipt of the referral has lapsed. Of
course, one understands why it would be a good thing
if all parties
attended a conciliation meeting once it has been called.
[16] Rule 13(2) deals with a situation where “
a
party is represented at the conciliation but fails to attend in
person”
. That relates to, among others, a
case where an employee has referred his dismissal dispute to the CCMA
conciliation but on the day
of the conciliation meeting he fails to
attend but ensures than an official of a trade union of which he is a
member attends to protect
his interests. That is not the scenario
that occurred in this case. However, it may be helpful to consider
the rule relating to it.
Rule 13(2) provides that in such a case the
commissioner may –
(a) continue with the proceedings;
(b) adjourn
the proceedings; or
(c) dismiss
the matter by issuing a written ruling.”
[17] Rule 13(3) deals with the factors which a
commissioner seeking to exercise his powers under Rule 13(2) may take
into account.
Rule 13(3) provides:
“(3)
In exercising a discretion in terms of subrule
(2), a commissioner should take into account, amongst others –
whether the party has previously failed to attend a
conciliation in respect of that dispute;
any reason given for that party’s failure to
attend;
whether conciliation can take place effectively in
the absence of that party;
the likely prejudice to the other party of the
commissioner’s ruling;
any other relevant factors.
[18] Rule 13(4) deal with a situation where a party to a
dispute fails to attend in person or to be represented at a
conciliation.
That relates to the scenario that occurred in this
case. Rule 13(4) provides: “
If a party to a
dispute fails to attend in person or to be represented at a
conciliation, the commissioner may deal with it in terms
of rule 30
.”
Rule 30 bears the heading: “
what happens if
a party fails to attend proceedings before the Commission
.”
Rule 30 (1), (2) and (3) read as follows:
“
(1) If a party to the dispute fails to attend or
be represented at any proceedings before the commission, and the
party –
had referred the dispute to the Commission, a
commissioner may dismiss the matter by issuing a written ruling; or
had not referred the matter to the commission, the
commissioner may –
continue with the proceedings in the absence of
that party; or
adjourn the proceedings to a later date.
A commissioner must be satisfied that the party had
been properly notified of the date, time and venue of the
proceedings, before
making any decision in terms of subrule (1).
If a matter is dismissed, the Commission must send a
copy of the ruling to the parties.”
[19] The provisions of the Rules of the CCMA which
apply to the scenario which occurred in this case are in Rule
30(1)(a). This is
because of Rule 13(4) which says that Rule 30
applies to such a scenario. Rule 30(1)(a) provide that
“(i)f
a party to the dispute fails to attend or be represented at any
proceedings before the commission, and the party had referred
the
dispute to the Commission, a commissioner may dismiss the matter by
issuing a written ruling.
” The question
arises: What does it mean to say that in such a situation the
commissioner may dismiss the matter? In seeking to
determine what the
CCMA Rules mean in this regard, certain observations must be borne in
mind. The one is that a commissioner dealing
with such a matter has
no power to deal with the merits of the dispute in the sense of
deciding whether or not a dismissal is fair
or not. His authority is
limited to attempting to conciliate the dispute. Apart from
attempting to conciliate the dispute, his powers
would be limited to
doing whatever is incidental to attempts to conciliating the dispute.
That would be like adjourning the conciliation
meeting and, may be,
ruling that no further conciliation attempts or meetings would be
made in which case he probably should certify
that the dispute
remains unresolved as provided for in sec 191(4) of the Act.
[20] Another observation that must be borne in mind is
that it is the Act that provides for the making of CCMA Rules and in
sec 115(2)(cA)(iii)(aa)
– which relates to conciliation – it
empowers the CCMA to make rules “
regulating
the practice and procedures – for any process to resolve a dispute
through conciliation
.” This means that such
rules – in so far as they relate to conciliation – are not meant
by the Act to take away any substantive
right of any party. At any
rate, where the Act confers a right to a party, the CCMA Rules cannot
take that away. Any rule that does
that would be in conflict with the
Act – an untenable situation. Obviously the Act prevails in such a
case. Furthermore, it must
be borne in mind that in terms of sec
191(4) of the Act a party to a dispute who refers a dispute to the
CCMA or a bargaining council
for conciliation has a right, once a
period of 30 days from the date when the CCMA or a bargaining council
received the referral
has lapsed, to have his dismissal dispute
arbitrated if he so requests or has a right to refer it to the Labour
Court for adjudication,
without such party having done anything after
referring the dispute for conciliation. The CCMA Rules cannot take
that right away.
[21] The construction that must be given to provisions
of the Rules of the CCMA must, as far as possible, be a construction
that reconciles
them with the Act rather than a construction that
places them on a collision course with the Act. Indeed, the
construction given
to them must, as far as possible, be consistent
with the powers of the CCMA as conferred by the Act.
[22] In the light of all the above it seems to me that
to construe “
dismiss the matter”
in Rule 30(1) of the CCMA Rules as meaning that the employee loses
his right to take the dispute to arbitration or adjudication even
after the period of 30 days referred to in sec 191(4) has lapsed
would be to give the phrase a construction that is not in line with
the powers of the CCMA and a construction that is in conflict with
sec 191(4) of the Act. In my view it must be given a construction
that does not have such effect. If one construes the phrase to mean
that implicit in a referral for conciliation is a request for
a
conciliation meeting and such a request is dismissed in the sense
that there will thereafter not be another conciliation meeting,
that
would not be in conflict with the Act. If the phrase is construed to
mean that the matter is dismissed for purposes of conciliation
–
and, therefore, not for purposes of any future arbitration or
adjudication, that is not in conflict with the Act and is in line
with the powers of the CCMA. If it is construed to mean that it is
struck off the roll of the conciliation process, that is also
not in
conflict with the Act. I am of the view that the phrase bears one of
the above meanings and cannot conceivably mean that the
employee or
the union is precluded from having the dispute arbitrated if that is
what he wants or that he is precluded from referring
the dispute to
the Labour Court for adjudication if the matter is one that should be
referred to the Labour Court for adjudication.
In this regard it
seems to me that the approach adopted by Jappie AJA with regard to
the provisions of the Dispute Resolution Procedure
agreement between
the parties is consistent with the approach that commends itself to
me both in terms of the Act read with the Rules
of the CCMA as well
as in terms of the Act read with the collective agreement with which
Jappie JA has dealt with in his judgment.
[23] The conciliator had no power to “
dismiss
”
the referral in the sense of dismissing it on the merits or in the
sense of precluding the employee party from pursuing the dispute
to
arbitration. What he or she could do, I would imagine, is to make a
decision if the relevant rules of the bargaining council permitted
him or her to do so the effect of which would be that the dispute
could no longer be set down for another conciliation meeting either
at all or at the request of the employee party but could be set down
again at the request of the employer party or it could only
be set
down for a conciliation meeting at the request of the employee party
on good cause shown. Assuming that the bargaining council
or the CCMA
places dispute referrals on the a kind of a “
conciliation
roll
” like a motion court roll or a trial
roll in the Labour Court or High Court, such a decision can be taken
to mean that the matter
is struck off the conciliation roll with the
result either that it cannot be placed on the conciliation roll again
or it can be placed
on the conciliation roll again only with the
leave of the bargaining council. In such a case, if the matter is not
again placed on
the “
conciliation roll
”
within the prescribed period, including an extended prescribed
period, the employee is entitled, once the 30 days period has lapsed,
to request that the CCMA or the bargaining council arbitrate the
dispute and, if he makes that request, the CCMA or bargaining council
is obliged to arbitrate the dispute. The bargaining council or CCMA
has no authority or power in such a case to require the employee
party to make an application for “
condonation
”
of any kind for its failure to attend the conciliation meeting before
it can entertain his request for arbitration or before it
can
arbitrate his dispute.
[24] The effect of the above is that in this case the
employee party did not need to make a second referral of the dispute.
It had
made a referral of the dispute in time and all it needed to do
was to request that the dispute be arbitrated by the bargaining
council.
This means that there was no need for an application for
condonation. The conciliator granted that condonation application. He
should
have held that the second referral was incompetent as a
dispute that has already been competently referred to conciliation
cannot
be referred to the same process for a second time. He did not
do so but, instead, he condoned the “
late
referral
” of the dispute.
[25] Although the conciliator had no jurisdiction to
deal with such a referral and such condonation application, his
decision granting
the condonation did not adversely affect any of the
employer party’s rights or interests. This is so because by that
time a period
of 30 days from the date of receipt of the first
referral of the dispute had lapsed and, because of that, the employee
party had
become entitled to have his dispute arbitrated by the
bargaining council if he so requested. In other words the granting of
the condonation
application did not give the employee party a right
that it did not already have nor did it take away from the employer
party a right
which it had acquired before such order was made. That
being the case, the employer party should not have brought a review
application
to set aside the decision condoning the so-called “
late
referral
”. Even if the order condoning the
“
late referral
”
were granted, as it was, and that order was set aside, in law that
would not have prevented the employee party from making the
request
for arbitration and having the dispute arbitrated. For this reason,
the bringing of the review application by the employer
party was moot
and was an exercise in futility that would not have brought the
employer party any practical benefit. For that reason,
it should not
have been brought. It could, and, should, have been dismissed by the
Labour Court on that ground alone.
[26] In the circumstances the appeal falls to be
dismissed – not for the reasons given by the Labour Court - but for
those given
in this judgment and in that of Jappie JA. It seems to me
that there should be no order as to costs both in this Court and in
the
Court below. This is because both parties launched unnecessary
proceedings. Instead of simply requesting the bargaining council to
arbitrate the dispute, the employee party made an unnecessary and
incompetent second referral and an unnecessary condonation
application.
Instead of acknowledging that the order condoning the
“
late
” referral
was of no consequence as the employee party was entitled to pursue
the dispute to arbitration any way, the employer party
brought an
unnecessary review application in the Labour Court.
[27] In the premises I agree that the appeal be
dismissed with no order as to costs.
Zondo
JP
I
agree.
Jappie
JA
I
agree.
Leeuw JA
Appearances
For
the Appellant : Adv. M.M Oosthuzen
Instructed
by : State Attorney
For
the Respondent : Adv R La grange
Instructed
by : Cheadle Thompson & Haysom
Date
of judgment : 21 December 2007
JAPPIE
AJA
[1] This is an appeal against a
judgment of Revelas J, sitting in the Labour Court. The
court
a quo
dismissed with costs
an application to review a ruling of the First Respondent, L
Ramabulana N O, in which ruling the First Respondent
condoned the
late referral of an unfair dismissal dispute for conciliation.
[2] The material facts are either not
in dispute or appear from the documents
filed in the appeal.
During August 1999 the Third Respondent, V. Vena, commenced
employment with the Provincial
Government of Gauteng in
the Department of Social Services and Population Development. On the
8
th
August 2002 and at a disciplinary inquiry, the Third Respondent was
found guilty of having on two occasions assaulted a senior manager.

He was dismissed for gross misconduct. He lodged an internal appeal
against his dismissal. The internal appeal was dismissed and
he
consequently referred the dispute of his dismissal to the Public
Health and Welfare Sector Bargaining Council, the Second Respondent,
for it to be conciliated.
[3] The conciliation hearing was set
down for the 14 May 2002. On the day of the hearing neither the
Third Respondent nor an official
of the Fourth Respondent attended.
The appointed conciliator, Mr Baloyi, after having satisfied himself
that the Third Respondent
and the Fourth Respondent has been properly
notified of the date of the hearing dismissed the dispute. The Third
Respondent and
an official of the Fourth Respondent were informed by
telephone on that same day that the matter which had been referred
for conciliation
had been dismissed.
[4] Nothing further transpired until
the 26
th
July 2002 when the Third Respondent again referred the same dispute
to the Second Respondent to have it conciliated. This referral
was
out of time. Clause 3.6 of the Dispute Resolution Procedure
provides:-
“
If
the dispute concerns an alleged unfair dismissal, the dispute must be
referred to the Secretary within 30 days of the date of
dismissal.”
[5] As more than 30 days had elapsed
since the Third Respondents dismissal the Third Respondent lodged an
application for condonation
for the late referral. The application
for condonation was set down on the 13th August 2002 and came before
Mr S. Seedat. At
this hearing, the Appellants raised the point that
the matter had already been before another conciliator and he had
dismissed the
dispute. It was argued that there was no legal basis
or provision in the Dispute Resolution Procedure that permitted a
seconded
referral for concilication of the same dispute. It was
contended that there was no basis in law for the conciliation to
continue
and accordingly asked for the application for condonation to
be dismissed. The conciliator, Mr Seedat did not make a ruling but
postponed the hearing on the basis that the Second Respondent would
provide to the Appellants relevant information and/or an explanation
at to the legal basis on which the second referral was permitted.
[6] On the 19
th
August 2002 the Appellants wrote to the Second Respondent requesting
it to inform the Appellant of the legal basis for setting the
matter
down again for conciliation.
[7] On the 4
th
September 2002 the Appellants received a directive from the Second
Respondent calling upon the Appellants to respond, in the usual
manner, to the Third Respondent’s application for condonation. The
Second Respondent appointed the First Respondent as conciliator
for
this second referral. On the 8
th
October 2002 a meeting was convened before him to deal with the
question of the condonation. Once again the Appellants raised
the
point that the earlier conciliation proceedings has been dismissed
and argued that the application for condonation could not
be
granted. Nevertheless, on the 24 October 2002 the First Respondent
handed down a ruling condoning the late referral of the dispute
for
conciliation. The Appellants approached the Labour Court to have the
ruling reviewed and set aside.
[8] In the Labour Court, the matter
came before Revelas J. The Appellants argued that the Second
Respondent had committed a reviewable
irregularity by permitting the
second referral of the same dispute whilst the ruling dismissing the
first referral was
extant
.
It was further argued that the effect of the first dismissal was
that the matter had become
res
judicata
and the First
Respondent lacked the necessary jurisdiction to hear the matter as
there was no live dispute which the Second Respondent
could resolve.
The
court a quo
dismissed the review application with cost.
[9] The Appellants applied for and was
granted leave to appeal against the judgment of the
court
a quo
and is now before
this Court.
[10] The Appellants argued that the
court a quo
had committed a misdirection by regarding the application for
condonation as if it was an application for the rescission of the
ruling of the conciliator Mr Baloyi. It was submitted that the
court a quo
had therefore erred in dismissing the review of the First
Respondent’s ruling to grant condonation on the basis that by
granting
condonation it had the same effect as a rescinding the
ruling of the dismissal of the referral for conciliation.
[11] It was argued that the court a
quo ought to have found that it was not legally permissible for the
Third and Fourth Respondents
to have applied for a second referral
for the conciliation of a dispute which had already been dismissed
under an earlier referral.
The earlier decision was binding between
the parties.
[12] It was further argued that there
is no provision (either in law or in terms of the Dispute Resolution
Procedure) for the same
dispute to be conciliated, once it had been
dismissed. The Second Respondent was
functus oficio
and, in so
far as the conciliation was concerned and, therefore could not have
entertained the second referral. It had acted
ultra
viris
when it had set
down the second referral for hearing before the First Respondent.
It, therefore, follows that the First Respondent
had no jurisdiction
to entertain or grant the application for condonation of second
referral in the face of the dismissal which
dismissal remained valid.
[13] Counsel who appeared for the
Third and Fourth Respondents conceded that the
court
a quo
may have erred in its
approach in regarding the application for conciliation as having the
same effect as an application for rescission.
Nevertheless it could
not be said that the
court a
quo
had erred in upholding
the First Respondent’s ruling. It was submitted that the First
Respondent correctly granted condonation
to the Third and Fourth
Respondents on the basis that it was apparent to the First
Respondent that the first conciliator (Mr Baloyi)
had erred by
dismissing the referral for conciliation. That being so, the First
Respondent correctly took into consideration all
the factors which
would have entitled a party to condonation. For this reason, it
was submitted that this court ought not to interfere
with the
judgment of the
court a quo.
[14] In the judgment of the
court
a quo,
it is pointed out
that the Dispute Resolution Procedure, makes not provision for the
rescission of a ruling made by a conciliator.
Further there is no
provision in the Dispute Resolution Procedure which allows for an
application for condonation. Revelas J stated
the position as
follows:-
“[20] If the collective agreement regulating dispute resolution
proceedings between the parties did not make provisions for a
rescission
procedure, that is a patent omission.
Sections 114
and
164
of the
Labour Relations Act, 66 of 1995
, as amended (“the Act”)
makes provision for rescission of arbitration awards (or rulings) and
Labour Court orders respectively.
It is unthinkable that a bargaining council should be deprived of
the inherent power to rectify a wrong or a mistake. Furthermore,
dismissing a matter in the absence of a party, is akin to striking a
matter from the roll as it would happen in a court. If a court
strikes the matter of the roll in error, it may reinstate it. The
effect of reinstatement is to rescind the ruling in terms of which
the matter was struck off the roll.
No
rescission application would be necessary, let alone a review
application.”
Further she states the following:-
“
The
first respondent’s final ruling, namely that the matter be
conciliated afresh, is precisely the object of a rescission ruling.
The fact that factors applicable in a condonation ruling were dealt
with by the first respondent as well, does not nullify that
part of
his reasoning which is applicable to rescission application. Even if
the first respondent erred in law, the error did not
lead to an
injustice. In fact, it led to fairness and justice.”
[15]
There
is a fundamental difference between condonation and rescission.
Condonation is granted in circumstances where there is non-compliance
with
rules of procedure.
It
is usually granted on good cause shown. A judgment or an order may
only be rescinded in certain specific instances and on grounds
recognised either by law or in terms of a set of applicable rules.
Condonation and rescission cannot, therefore, be treated as if
it is
one and the same thing. The concession made on behalf of the Third
and Fourth Respondents is correct and that the
court
a quo
err in its approach
in treating the application for condonation as if it was an
application for rescission.
[16] The
court
a quo
however correctly
pointed out that Dispute Resolution Procedure did not make provision
for applications to rescind a conciliator’s
ruling as already
pointed out there is not provision for condonation procedure as well
It in fact do not make provision for condonation
procedure as well.
In my view
Section 144
of the
Labour Relations Act No. 66 of
1995 is
not applicable in the present situation. The position between the
parties is governed by a collective agreement. The agreement
contains Dispute Resolution Procedure. Disputes between the parties
are to be resolved in terms of the agreed Dispute Resolution
Procedure. A court cannot
ex
mero motu
make procedure not agreed upon by the parties or provided in law
applicable to the parties.
[17] What the Dispute Resolution
Procedure does provide for is that in the event when conciliation
fails is for the matter to proceed
to arbitration. This is set out
in Clause 3.5 of the Dispute Resolution Procedure. It reads as
follows:-
“
If
the dispute is one that is contemplated in terms of clause 3 (1)
(c), that is dispute that the council will conciliate and
if not
resolved at conciliation arbitrate, the following procedure applies:-
…
(c) If
the Secretary is satisfied that the referral has been properly
served, Secretary must –
appoint
an arbitrator to arbitrate the dispute;
set
the matter down for arbitration within 30 days of the referral;
appoint
a conciliator to attempt to settle the dispute prior to the
arbitration; and
set
the matter down for conciliation no later that 4 days before the
arbitration.”
[18] In my view, the dismissal of the
first referral for conciliation by Mr Baloyi had the effect of not
resolving the dispute at
conciliation. The next procedural step that
then came into play is that set out in Clause 3.5 of the Dispute
Resolution Procedure.
If the Third and Fourth Respondents were
still of the view that the dispute could be resolved through
conciliation the arbitrator
could have been requested to proceed in
terms of Clause 5.1 of the Dispute Resolution Procedure which reads
as follows:-
“
An
arbitrator appointed by the Secretary to arbitrate the dispute may,
should it be agreed upon by all the parties to the dispute,
attempt
to resolve the dispute through conciliation
.”
The door to conciliation, in terms of
the Dispute Resolution Procedure, had not been shut by the dismissal
of the referral for conciliaton.
What is evident is that the Dispute
Resolution Procedure do not provide for an aggrieved party whose
referral for conciliation had
been dismissed to apply for a “second
referral for conciliation” and neither does it provide condonation
if the second referral
is out of time. It was an error to treat the
application in these circumstances as if it is an application to
rescind the earlier
ruling of the dismissal an application to
conciliate. The correct approach was for the First Respondent to
have applied the
provisions of the Dispute Resolution Procedure by
referring the parties to arbitration.
[19] If the parties had been referred
to arbitration there would have been no need for the Third and Fourth
Respondents to apply for
a second referral of the dispute. This
means that there was no need for an application for condonation.
What ought to have occurred
was that the second referral should have
been held to have been incompetent as the dispute had already been
referred to conciliation
and the same dispute cannot be referred for
a second time.
[20] The
conciliator had no jurisdiction to deal with the second referral and
the application for condonation, his decision nevertheless
did not
adversely affect the Appellants. For this reason, the bringing
the of the review application in the Labour Court was
an exercise in
futility on the part of the Appellants. In my view the court a quo
ought not to have entertained the review application
and was
correct in dismissing the same.
[22] In
the result I am persuaded that the decision of the court a quo ought
not to be interfered with. In the result the appeal
stands to be
dismissed with no order as to costs.
Jappie JA
I
agree.
Zondo
JP
I agree.
Leeuw
JA
Appearances
For
the Appellant : Adv. M.M Oosthuzen
Instructed by : State Attorney
For the Respondent : Adv R La grange
Instructed
by : Cheadle Thompson & Haysom
Date
of judgment : 21 December 2007