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[2010] ZALAC 6
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Minister of Safety and Security v Safety and Security Sectoral Bargaining Council and Others (PA2/09) [2010] ZALAC 6; (2010) 31 ILJ 1813 (LAC) ; [2010] 6 BLLR 594 (LAC) (29 January 2010)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA Held in Durban
Case
no: PA2/09
In
the matter between
Minister
of Safety and Security
And
Safety
and Security Sectoral
Bargaining
Council
l"
Respondent
John
Chccrie Robertson NO
2"
d
Respondent
Adri
Badenborst
3
rd
Respondent
JUDGMENT
ZONDOJP
[1]
This matter comes before this Court as a special case as provided for
in Rule 5(16) of the Rules of this Court by agreement
between the
appellant and the third respondent. The background to the facts of
the matter appear from a statement of facts agreed
to between the
parties. I take the agreed facts from that statement. They are as
follows:
"2.1
The parties accordingly agree that the appeal can be decided on the
following common cause facts:
2.1.1
The Third Respondent made an application for a transfer from
Information and Management System Management (ISM), Provincial
Commissioner's Office, Zawelitsha to Community Service Centre, Mount
Road Police Station, Port Elizabeth.
2.1.2
The Appellant, in the person of Commissioner Dlani disapproved the
Third Respondent's application for transfer on the basis
of the
service delivery needs of the Appellant.
2.1.3
The Third Respondent (being aggrieved at Commissioner Dlani's
decision) lodged a dispute about the interpretation and application
of a collective agreement, challenging the decision taken by the
Appellant to disapprove the application for a transfer.
2.1.4
At the arbitration proceedings the Third Respondent argued that the
Appellant and more particularly Commissioner Dlani had
breached
Resolution 5 of 1992 and in particular clause 10 thereof in that the
Appellant had failed to give any or proper consideration
to the Third
Respondent's interests vis-a-vis the interests of the Appellant. The
Third Respondent argued that having regard to
the facts of the matter
the reason for the refusal of the application for a transfer namely
that of
"service
delivery needs"
was
neither logical nor rational.
2.1.5
In short the Third Respondent argued at the arbitration proceedings
that Commissioner Dlani had failed to apply her mind to
the factors
which were listed in clause 10 of Resolution 5 of 1999 when coming to
her decision to refuse the transfer.
2.1.6
The dispute between the aforementioned parties was ultimately
arbitrated by the Second Respondent under the auspices of the
First
Respondent.
2.1.7
The Second Respondent in his arbitration award found that the
decision of the Applicant not to approve the Third Respondent's
application for a transfer was capricious illogical and irrational
and hence invalid.
2.1.8
Although the arbitrator dealt with the categorisation of the dispute
(as being a dispute about the interpretation and application
of a
collective agreement) the categorisation of the dispute was not
placed in dispute by either of the parties at the proceedings.
2.1.9
The Court a quo corrected the Second Respondent's arbitration award
only to the extent that it had declared the decision
to disapprove
the application for a transferinvalid
ab
initio.
The
Court a quo set this finding aside. The Court a quo however
effectively dismissed the application for review and thereafter
made
the arbitration award an order of Court."
[2]
The parties set out the legal issue before this court in par 3 of the
document containing the special case. Par 3 of that document
reads as
follows:
"3.
The
Legal Issue
3.1
The parties agree that the sole issue before this Honourable Court is
whether, as a matter of law, the Second Respondent was
possessed of
the requisite jurisdiction to determine the dispute which was
referred to arbitration.
3.2In
this particular regard this Honourable Court will be required to
decide whether the Second Respondent correctly classified
the dispute
before him as one concerning the interpretation and application of a
collective agreement.
3.3The
Third Respondent contends that the Second Respondent was correct in
his categorisation of the dispute as one concerning the
interpretation and application of a collective agreement.
3
.4The
Appellant on the other hand will contend that although the dispute
may have been dressed up as a dispute concerning the interpretation
and application of a collective agreement, the real or true dispute
before the
Second
Respondent was in fact a dispute about the fairness of the decision
taken by the Appellant to refuse the Third Respondent's
application
for » transfer (and that there was neither a dispute about the
interpretation of the relevant collective agreement
or whether it
applied in the present circumstances)."
[3]
The issue before us is whether or not the Safety and Security
Sectoral Bargaining Council
("the
SSBC"),
which
is the first respondent in these proceedings, had jurisdiction to
deal with the dispute that resulted in the arbitration award
which
was the subject of the proceedings in the Labour Court. That issue
will be determined by how we answer the further question
whether or
not the second respondent correctly classified the dispute before him
as one concerning the interpretation and application
of a collective
agreement. In this regard the appellant contends that in substance
the dispute was about the fairness of the third
respondent's transfer
whereas the appellant contends that it was a dispute about the
interpretation or application of a collective
agreement. The
collective agreement to which the first respondent was referring was
a document bearing the heading: AGREEMENT REACHED
By the Safety and
Security Sectoral Bargaining Council, ft is also reflected as:
"agreement
NO 5 of 1999 dated 8 October 1999'\
It
deals with the transfer policy and procedures.
[4]
The contents of the collective agreement apply both to the cases
where a transfer is initiated by the employer as well as where
the
transfer is at the request of the employee. The collective agreement
provides for the procedure to be followed in the processing
of
transfers and the factors that must be taken into account in deciding
whether an employee is to be transferred or not. It also
deals with
the officials who have the authority to make decisions on transfers
in various circumstances.
[5]
It was accepted by both parties' Counsel that, if the dispute was a
dispute about the interpretation or application of a collective
agreement, the
SSSBC
had
jurisdiction in respect of the dispute and, therefore, the appeal
would fall to be dismissed but that, if the dispute was about
the
fairness of the transfer, the
SSSBC
did
not have jurisdiction and the appeal would have to be upheld.
[6]
In support of his contention that the dispute was about the
interpretation or application of the collective agreement, Counsel
for the first respondent drew our attention to various provisions of
the collective agreement to emphasise the various factors
which he
submitted were either not taken into account by the official who made
the decision to refuse the third respondent's request
for a transfer
or to show that the relevant official did not or could not have
attached any weight to such factors or some of the
factors. He
submitted that that showed that the dispute was about the application
or interpretation of the collective agreement.
[7]
I drew the attention of Counsel for the third respondent to the
contention that had been advanced by Counsel for the appellant
the
previous week in this Court in the case of
Johannesburg
City Parks
v
Mphahlani,
J NO & others,
case
no.
JA31/08
in
respect of which judgment had been reserved and had not yet been
handed down at that stage. In that case an employee who was
aggrieved
by his dismissal had referred an unfair dismissal dispute to the
Local Government Bargaining Council at a time when a
certain
demarcation dispute had been referred to the Commission for
Conciliation, Mediation and Arbitration
("CCMA").
In
that case the arbitrator arbitrated the dispute and issued an award
in favour of the employee. In a subsequent review application
brought
by the employer, it was contended on behalf of the employer that the
Local Government Bargaining Council had had no jurisdiction
to
arbitrate the dispute because the dispute was about the
interpretation and application of the collective agreement containing
the dispute procedure of the bargaining council and
sec 62(3A)
of the
Labour Relations Act, 1995
was to the effect that proceedings about
the interpretation and application of a collective agreement had to
be adjourned whenever
a question arose in such proceedings about a
demarcation dispute. In that case Counsel for the employee had argued
that the arbitration
proceedings pursuant to which the arbitration
award had been issued had not been in regard to a dispute about the
application or
interpretation of a collective agreement as required
by
sec 62(3A)
of the LRA and that, accordingly,
sec 62(3A)
had no
application. The argument presented on behalf of the employer in that
case was that every dispute that is dealt with by
a bargaining
council in terms of its dispute procedure is a dispute about the
application of a collective agreement.
[8]
Counsel for the appellant in the present matter was asked whether he
would submit that the dispute that was before the arbitrator
in the
Johannesburg City Parks matter was a dispute about the fairness of
the dismissal of the employee or whether he would associate
himself
with the submission that it was a dispute about the application of a
collective agreement as had been submitted by Counsel
for the
appellant in that case. Counsel for the appellant in the present case
said that he could not associate himself with the
submission that in
that case the dispute before the arbitrator was a dispute about the
application of a collective agreement. He
submitted that the dispute
in that case was a dispute about the fairness of a dismissal.
[9]
In the light of his answer, Counsel for the appellant in the present
matter was asked why it could not be said that in the present
matter
the dispute that was before the second respondent was not a dispute
about the application of a collective agreement but
a dispute about
the fairness of Commissioner Dlani's decision to decline the third
respondent's request or application for a transfer.
Although Counsel
did not make any concession in this regard, he had considerable
difficulty in making submissions on why the reasoning
that persuaded
him that the dispute before the arbitrator in the Johannesburg City
Parks matter was a dispute about the fairness
of a dismissal and not
a dispute about the application of a collective agreement should not
apply with equal force to the present
case with the result that we
should conclude that the dispute before the second respondent was
about the fairness or otherwise
of the transfer and not about the
application of a collective agreement.
[10]
We sec no distinction of any materiality in the two cases.
Accordingly, we shall refer to the reasoning in the judgment of
this
Court
in the Johannesburg City Parks' case to decide the present appeal. I
am of the view that a recognition of the distinction
between a
dispute, on the one hand, and, an issue in a dispute, on the other,
is determinative of this matter.
[11]
Judgment in the Johannesburg City Parks matter is
to
be
handed down on the same day as this judgment but just before this one
is handed down. At par 16 of the judgment of this Court
in the
Johannesburg City Parks matter the following explanation of the
difference between a dispute and an issue in a dispute appears:
"[18]
There are a number of areas in the LRA which contain references to
disputes or proceedings that are about the interpretation
or
application of collective agreements, particularly in provisions that
deal with dispute resolutions. Some of the sections of
the LRA which
contain such references are
sections 22
and
00
0000">
24.
In
all of those sections the references to disputes about the
interpretation or application of a collective agreement are
references
to the main disputes sought to be resolved and not to
issues that need to or may need to be answered or dealt with in order
to
resolve the main dispute. Let me make an example to illustrate the
distinction that I seek to draw between
a
dispute
and
an
issue in a dispute
.
One may have a situation where an employee is dismissed for
operational requirements and that dismissal is challenged as unfair
because it is said that in terms of a certain collective agreement
the employer was supposed to follow a certain procedure before
dismissing the employee but did not follow such procedure. In such a
case, in determining whether the dismissal was fair or unfair,
the
Labour Court would have to determine whether the relevant provisions
of the collective agreement were applicable to that particular
dismissal. The employer may argue that, although the collective
agreement is binding on the parties, the particular clause did
not
apply to a particular dismissal. This means that the Labour Court has
to interpret and apply the collective agreement in order
to resolve
the dispute concerning the fairness or otherwise of the dismissal for
operational requirements. So, the real dispute
is about the fairness
or otherwise of the dismissal and the issue of whether certain
clauses of the collective agreement arc applicable
and or were
complied with before the employee was dismissed is an issue necessary
to be decided in order to resolve the real dispute.
[19]
In the above example it cannot be said, for example, that the Labour
Court has no jurisdiction to adjudicate the dispute concerning
the
dismissal for operational requirements and it must be referred to
arbitration just because, prior to or in the course of, resolving
the
dismissal dispute, the issue concerning the interpretation or
application of certain clauses of the collective agreement must
be
decided, It would be different, however, where the main dispute, as
opposed to an issue in a dispute, is the interpretation
or
application of a collective agreement. In the latter case the Labour
Court would ordinarily not have jurisdiction in respect
of the
dispute and the dispute would be required to be resolved through
arbitration in terms of the LRA.
[20]
The proposition advanced by Counsel for the appellant made no
distinction between a dispute, on the one hand, and, an issue
in a
dispute, on the other. That is why the appellant's Counsel was driven
to submit that all disputes which are dealt with by
a bargaining
council are all disputes about the application of a collective
agreement because the procedures for dealing with such
disputes are
provided for in a collective agreement. Obviously, this proposition
can simply not be correct. In bargaining councils,
proceedings are
held that are about all kinds of disputes such as proceedings about
dismissal disputes, proceedings about disputes
concerning the
interpretation or application of collective agreements, proceedings
concerning disputes about organisational rights,
proceedings about
wage disputes and proceedings concerning other disputes."
In
my view this explanation applies to the present case. The dispute
that was before the second respondent in this case was a dispute
concerning the fairness or otherwise of Commissioner Dlani's refusal
to approve the third respondent's application or request for
a
transfer and the application of the provisions of the collective
agreement was an issue in a dispute. It was an issue which had
or may
have had to be dealt with in order to resolve the real dispute. That
is the main dispute. The dispute itself did not relate
to an
application of the collective agreement.
[12]
In the light of the above I conclude that the first and second
respondents had no jurisdiction to arbitrate the dispute in
this case
because that was a dispute concerning the fairness or otherwise of
commissioner Dlani's decision not approve the third
respondent's
request or application for a transfer and the first and second
respondents had no jurisdiction to deal with such a
dispute.
Accordingly, the Court a quo erred in not granting the appellant's
application for review.
[13]
With regard to costs, Counsel for the appellant did not press for
costs. In my view Counsel for the appellant adopted the correct
approach in this regard.
[14]
In the premises I make the following order:
1.
The appeal is upheld.
2.
There is to be no order of costs on appeal.
3.
The order of the Labour Court is hereby set aside and, for it, the
following order is substituted:
"
(a)
The
review application is granted.
(b)
It is hereby declared that the first and second respondents had no
jurisdiction to arbitrate the dispute concerning commissioner
Dlani's
decision not to approve the third respondent's request or application
for a transfer.
(c)
There is to be no order as to costs.
(d)
The arbitration award issued by the second respondent is hereby
reviewed and set aside and, for it, the following ruling is
substituted:
"(i)
The Safety and Security Sectoral Bargaining Council has no
jurisdiction to deal with this dispute and the referral thereof
to
this Council is dismissed.
(ii)
There is no order as to costs."
Zondo
JP
I
agree.
Sangoni
A
JA
I
agree.
Tlaletsi
AJA Appearances:
For
the Appel lant:
Mr
Kroon
Instructed
by:
State
Attorney
For
the Respondent:
Mr
M Grobler
Instructed
by:
J
Gruss Attorneys
Date
of judgment:
29
January 2010