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[2010] ZALAC 32
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Johannesburg City Parks v Mphahlani NO & others (JA31/08) [2010] ZALAC 32; [2010] 6 BLLR 585 (LAC); (2010) 31 ILJ 1804 (LAC) (29 January 2010)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA31/08
In the matter between
Johannesburg City Parks
…..............................................................
Appellant
And
Mphahlani, J NO
…...................................................................
1
st
Respondent
The South African Local Government
Bargaining council
…................................................................
2
nd
Respondent
SAMWU obo MAGUVHE
…...................................................
3
rd
Respondent
Commissioner Chairman Webb, NO
…..................................
4
th
Respondent
JUDGMENT
ZONDO JP
Introduction
[1] This is an appeal against a judgment and order of
the Labour Court in terms of which a review application that had been
brought
by the appellant in that Court for an order reviewing and
setting aside an arbitration award of the fourth respondent would be
reviewed and set aside. As an alternative to the reviewing and
setting aside of the arbitration award, the appellant sought an order
reviewing and setting aside a decision made by the first respondent
under the auspices of the second respondent refusing to rescind
the
arbitration award. The arbitration award related to a dispute between
the appellant and the third respondent about the fairness
or
otherwise of the dismissal of Mr F Maguvhe, a member of the third
respondent which is a registered trade union, by the appellant.
The
leave to appeal was granted by the Labour Court.
The background
[2] Mr Maguvhe was employed by the appellant but was
dismissed. A dispute then arose between the appellant and the third
respondent
about the fairness of that dismissal. The third respondent
referred that dispute to the second respondent for, initially,
conciliation,
and, later, arbitration when conciliation failed. After
the conciliation process had failed, the dispute was referred to
arbitration.
The second respondent was assigned to arbitrate the
dispute.
[3] On the 16
th
September 2005 the appellant
sent a letter to the second respondent informing the latter that it
did not fall within the jurisdiction
of the second respondent and
that, for that reason, it would not attend the proceedings. The
appellant also informed the second
respondent that there was a
demarcation dispute pending at the CCMA and that until that dispute
was finalised it would not be bound
by any decision of the second
respondent and its employees were free to refer “
disciplinary
matters
” to the CCMA which the company would attend. The
letter was brought to the second respondent’s attention. The
letter
did not provide any substantiation for the point taken by the
appellant that the second respondent had no jurisdiction to deal with
the dispute. The fourth respondent seems to have then given the third
respondent’s representative an opportunity to make
submissions
as to the jurisdictional point taken by the appellant which the third
respondent’s representative then made.
The fourth respondent
thereafter decided to proceed with the arbitration. Obviously, she
was not satisfied that she had no jurisdiction
to arbitrate the
dismissal dispute. That is why she proceeded to arbitrate that
dispute.
[4] Evidence was led by the third respondent on the
dismissal dispute. In the end the fourth respondent issued an
arbitration award
in which she found that Mr Maguvhe’s
dismissal was substantively unfair and ordered the appellant to
reinstate him in its
employ retrospectively from the date of
dismissal. As indicated earlier, the appellant elected not to take
part in the arbitration
proceedings. Accordingly, the only evidence
that was led in the arbitration was the evidence that was led on
behalf of Mr Maguvhe.
Subsequent to the issuing of the arbitration
award by the fourth respondent, the appellant brought an application
before the second
respondent for the rescission of the arbitration
award of the fourth respondent. That application was dismissed.
Proceedings in the Labour Court
[5] Subsequent to the first respondent’s dismissal
of the appellant’s rescission application, the appellant
brought
an application before the Labour Court to have the award or
alternatively the rescission application reviewed and set aside on
the ground that the fourth respondent should have adjourned the
proceedings after it had been brought to her attention that there
was
a demarcation dispute pending in the CCMA. The review application was
brought to Court without compliance with the time limits
prescribed
for the bringing of such an application. The appellant made an
application for the condonation of its failure to bring
the review
application within the prescribed time period. The condonation
application was incorporated in the founding affidavit
of the review
application. The third respondent opposed both the review application
and the condonation application.
[6] The review application came before Hendricks AJ in
the Labour Court. The learned Acting Judge dismissed the application
for
condonation. The explanation that the appellant had given in its
founding affidavit for its failure to bring the review application
within the prescribed time-limit was that the delay was due to the
fact that it had initially pursued a rescission application.
The
Labour Court found this to be an unsatisfactory explanation. As
already stated earlier, the Labour Court subsequently granted
the
appellant leave to appeal against its judgment and order.
The appeal
[7] Before us Counsel for the appellant contended that
the fourth respondent had no jurisdiction to arbitrate the dispute
because
sec 62(3A) of the Labour Relations Act, 1995 (“
the
LRA
”) was applicable to the proceedings before her and,
once the fact that a demarcation dispute had been referred to the
CCMA
had been brought to her attention, she was obliged to have
adjourned the proceedings in accordance with the provisions of sec
62(3A).
In order to understand the provisions of sec 62(3A) properly,
it is necessary to first quote sec 62(1)(a) and (b) of the LRA. Sec
62(1)(a) and (b) read as follows:-
“
(1) Any registered trade
union, employer, employee, registered employers’ organisation
or council that has a direct or indirect
interest in the application
contemplated in this section may apply to the Commission in the
prescribed form and manner for a determination
as to –
whether any employee, employer, class of employees
or class of employers, is or was employed or engaged in a sector or
area:
whether any provision in any arbitration award,
collective agreement or wage determination made in terms of the Wage
Act is or
was binding on any employee, employer, class of employees
or class of employers.
”
Sec 62(3A) reads as follows:
“
In any proceedings before
an arbitrator about the interpretation or application of a
collective
agreement
,
if a question contemplated in subsection (1)(a) or (b) is raised, the
arbitrator must adjourn those proceedings and refer the
question to
the Commission if the arbitrator is satisfied that –
(a) the question raised –
(i) has not previously been determined by arbitration
in terms of this section; and
(ii) is not the subject of an agreement in terms of
subsection (2); and
(b) the determination of the question raised is
necessary for the purposes of the proceedings.”
Sec 62(2) will be referred to later and for that reason
I may as well quote it now. It reads:
“
If two or more councils
settle a dispute about a question contemplated in subsection (1)(a)
or (b), the councils must inform the
Minster of the provisions of
their agreement and the Minister may publish a notice in the
Government Gazette stating the particulars
of the agreement
.”.
[8] I specifically asked Counsel for the appellant
whether in contending that the second respondent did not have
jurisdiction his
jurisdictional point was only based on the
provisions of sec 62(3A) or whether his point was not necessarily
based upon sec 62(3A).
Counsel’s answer was that his argument
on jurisdiction was founded upon the provisions of sec 62(3A). He
submitted that his
point depended upon whether or not sec 62(3A) was
applicable to the proceedings before the fourth respondent. This
means that,
if it was found that sec 62(3A) was of no application to
the proceedings before the fourth respondent, the appeal would have
to
fail.
[9] In effect Counsel for the appellant argued that sec
62(3A) enjoined the fourth respondent to adjourn the proceedings that
were
before her once she had become aware that a demarcation dispute
had been referred to the CCMA and was still pending. Counsel for
the
appellant submitted that, pending the finalisation of the demarcation
dispute, it was not competent for the fourth respondent
to have
proceeded with the arbitration of the dispute. It seems to me that
this point is not a point about jurisdiction in the
true sense. It is
rather about whether or not, in the light of the provisions of sec
62(3A), it was competent for the fourth respondent
to arbitrate the
dispute while the demarcation dispute was still pending at the CCMA.
There is no dispute that, absent the pending
demarcation dispute, the
fourth respondent would have been entitled to arbitrate the dispute.
[10] Counsel for the third respondent’s answer to
the appellant’s Counsel’s contention was that sec 62(3A)
did
not apply to the proceedings before the fourth respondent because
sec 62(3A) applied to proceedings that, as sec 62(3A) itself says,
are “
about the interpretation or application of a collective
agreement
”. In this connection Counsel for the third
respondent drew our attention to the provisions of sec 62(3) and (5)
of the LRA.
It is necessary to quote both provisions. Sec 62(3)
reads:
“
In any proceedings in terms
of
this Act
before the Labour
Court, if a question contemplated in subsection (1)(a) or (b) is
raised, the Labour Court must adjourn those proceedings
and refer the
question to the Commission for determination if the Court is
satisfied that –
the question raised-
has not previously been determined by arbitration
in terms of this section; and
is not the subject of an agreement in terms of
subsection (2); and
the determination of the question raised is
necessary for the purposes of the proceedings
.”.
Sec 62(5) reads:
“
In any proceedings in terms
of
this Act
before a
commissioner, if a question contemplated in subsection (1)(a) or (b)
is raised, the commissioner must adjourn the proceedings
and consult
the
director
,
if the commissioner is satisfied that –
(a) the question raised –
(i) has not previously been determined by arbitration
in terms of this section; and
(ii) is not the subject of an agreement in terms of
subsection (2); and
(b) the determination of the question raised is
necessary for the purposes of the proceedings
”.
[11] From the above it will be seen that there is a lot
of similarity between the provisions of sec 62(3) and the provisions
of
sec 62(5). It will also be seen that the marked difference between
the wording of sec 62(3) and 62(5), on the one hand, and the
provisions of sec 62(3A), on the other, is that sec 62(3) and (5)
have no express limitation in terms of the proceedings which
must be
adjourned pending the outcome of a dispute about, for example,
demarcation whereas sec 62(3A) has an express limitation
in this
regard. The proceedings which sec 62(3A) requires to be adjourned are
proceedings “
about the interpretation or application of a
collective agreement
” whereas the proceedings that sec
62(3) and (5) require to be adjourned are “
any proceedings
”
and they are not qualified in any manner.
[12] Confronted with the proposition that sec 62(3A) did
not apply to the proceedings over which the fourth respondent
presided
as an arbitrator because those proceedings were about the
fairness or otherwise of a dismissal and, therefore, not about the
interpretation
or application of a collective agreement, Counsel for
the appellant submitted that all disputes that are dealt with by a
bargaining
council are disputes about the application of a collective
agreement because they are all required to be dealt with in terms of
a collective agreement. In this regard Counsel for the appellant
pointed out that an arbitrator who deals with any dispute under
the
auspices of a bargaining council deals with a dispute that is “
about
the application
” of a collective agreement because in
resolving the dispute he or she is required to apply a collective
agreement. He said
that it was for this reason that sec 62(3A)
referred specifically to proceedings about the application of a
collective agreement.
[13] Counsel for the third respondent was not able to
suggest the reason why the LRA has a limitation in sec 62(3A) but not
in sec
62(3) and (5) and yet all these three subsections deal with
how the same situation should be dealt with. Counsel for the
appellant
asked what reason there would have been for the Legislature
to have dealt with the situation differently in sec 62(3A) from the
way that it requires the same situation to be dealt with under sec
62(3) and (5).
[14] There are a number of areas in the LRA with
references to dispute 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 22 and 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 in order to resolve
the main dispute. Let me make an example to illustrate the
distinction 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 are applicable
and/or
complied with before the employer was dismissed is an issue necessary
to be decided in order to resolve the real dispute.
[15] 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 is required to be resolved
through arbitration in terms of the LRA.
[16] 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.
[17] If the submission by Counsel for the appellant that
all disputes that come before a bargaining council are disputes about
the
application of a collective agreement since all the disputes with
which bargaining councils deal are dealt with in terms of its
collective agreement were correct then the article that comes before
the words “
collective agreement
” in sec 62(3A)
would not be “
a
” but “
the
”
because it would be the same collective agreement that is applied in
every case.
[18] In response to the contention advanced by Counsel
for the third respondent that the scope of application of sec 62(3A)
is narrower
than that of sec 62(3) and (5), Counsel for the appellant
asked why the Legislature would have intended sec 62(3) and (5) to
have
a wider scope than sec 62(3A). Counsel for the third respondent
could not proffer a suggestion on this point but emphasised that
the
Legislature quite clearly did make such a distinction. In this
connection he submitted in effect that the Legislature deliberately
sought to make such a distinction because otherwise the difference in
the wording of sec 62(3) and (5), on the one hand, and that
of sec
62(3A) would be inexplicable. Counsel submitted that that distinction
must be given effect to. Counsel for the third respondent
pointed out
that initially the LRA had sec 62(3) and (5), quoted above, but did
not have sec 62(3A) and said that sec 62(3A) was
inserted afterwards
as an amendment. The effect of this is that the Legislature
deliberately sought to make the distinction reflected
in the
difference in the wording between sec 62(3) and (5), on the one hand,
and, sec 62(3A), on the other. Accordingly, Counsel
for the third
respondent is in right submitting that effect must be given to that
distinction.
[19] In the light of the above I hold that sec 62(3A)
was of no application to the arbitration proceedings concerning the
unfair
dismissal dispute that came before the fourth respondent. The
result of this conclusion is that it has not been shown that the
fourth respondent should have adjourned the proceedings over which he
presided in this matter. On this ground alone the appellant’s
appeal falls to be dismissed.
[20] Apart from the requirement in sec 62(3A) that the
proceedings that must be adjourned must be proceedings “about
the interpretation
or application of a collective agreement”,
the duty to adjourn the proceedings only arises if the conditions set
out in sec
62(3A)(a)(1) to (b) are present. The arbitrator is
required to adjourn the proceedings only “
if [he] is
satisfied that –
(a) the question raised –
(i) has not previously been determined by arbitration
in terms of this section; and
(ii) is not the subject of an agreement in terms of
subsection (2); and
the determination of the question raised is
necessary for the purposes of the proceedings
.”
[21] In any event, if the appellant sought to attack the
award on the basis that the arbitrator’s failure to adjourn the
proceedings
constituted a reviewable irregularity, it was incumbent
upon the appellant to show that the arbitrator was satisfied or ought
reasonably
to have been satisfied as required by paragraphs (a) and
(b) of sec 62(3A). That is that the arbitrator must first have been
satisfied
that:
(a) the question raised –
(i) had not previously been determined by arbitration
“
in terms of
” sec 62; and
(ii) was not the subject of an agreement in terms of
subsection (2); and
the determination of the question raised was necessary
for the purposes of the proceedings.
Without showing that the arbitrator was so satisfied or
ought reasonably to have been so satisfied, the appellant cannot even
begin
to criticise the arbitrator’s conduct in not adjourning
the proceedings. In the founding affidavit the appellant did not
state whether or not the arbitrator was so satisfied or ought
reasonably to have been so satisfied. Indeed, on the appellant’s
own version, the position is that the appellant boycotted the
arbitration proceedings before the arbitrator. The appellant only
sent a letter which said that the second respondent had no
jurisdiction over it and would, therefore, not attend the arbitration
proceedings and that there was a demarcation dispute pending at the
CCMA. The letter but did not deal with the issues referred
to in sec
62(3A)(a) and (b) so as to ensure that the arbitrator was satisfied
as to such issues as required by sec 62(3A(a) and
(b).
[22] Without having placed information before the
arbitrator which addressed those issues, there can be no basis in law
upon which
the appellant could conceivably be contended that the
arbitrator should have adjourned the proceedings as required by sec
62(3A),
not to speak of a contention that her failure to so adjourn
the proceedings was unreviewable or constituted a reviewable
irregularity.
In these circumstances the appellant has failed to show
that the arbitrator should have or was obliged to have adjourned the
proceedings.
The appellant has failed to bring its case within the
ambit of sec 62(3A). Accordingly the appeal should fail.
[23] With regard to costs it seems to me that it would
accord with the requirements of the law and fairness that the
appellant should
pay the third respondent’s costs.
[24] In the premises the appeal is dismissed with costs.
Zondo JP
I agree.
Patel JA
I agree.
Sangoni AJA
Appearances:
For the appellant: Adv T Bruinders SC
Instructed by: Sim and Botsi Attorneys
For the respondent : Adv J.G Van der Riet SC
Instructed by : Cheadle Thompson & Haysom
Date of judgment : 29 January 2010