Bracks NO and Another v Rand Water and Another (JA 2/08) [2010] ZALAC 4; (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR 795 (LAC) (9 March 2010)

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[2010] ZALAC 4
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Bracks NO and Another v Rand Water and Another (JA 2/08) [2010] ZALAC 4; (2010) 31 ILJ 897 (LAC); [2010] 8 BLLR 795 (LAC) (9 March 2010)

IN THE LABOUR
APPEAL
COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE NO. JA2/08
In
the matter between:
ADVOCA
TE
RAYNOLD BRACKS N.O.
First
Appellant
(First Respondent in the court
a
quo)
COM
MISSION
FOR CONCILIATION,
MEDIATION AND
ARBITRATION (CCMA)
Second
Appellant
(Second
Respondent in the court
a
quo)
a
nd
RAND WATER
First
Respondent
(Applicant in the court
a
quo)
MARTHA CHRISTINA
SWART
Second
Respondent
(Third Respondent in the court
a
quo)
______________________________________________________________
JUDG
MENT
______________________________________________________________
JAPPIE
JA
[1]
The
appeal deals with the question whether the Commission for
Conciliation, Mediation and Arbitration (CCMA) has jurisdiction in
terms
of s 191(12) of the Labour Relations Act 66 of 1995 (the LRA)
to hear disputes about the procedural fairness of dismissals for
operational
requirements involving a single employee. The appeal is
unopposed.
[2] The
First Appellant, Advocate Raynold Bracks is a commissioner at the
CCMA. He was the designated arbitrator to arbitrate an
unfair
dismissal dispute between Rand Water and Martha Christina Swart (the
First and Second Respondents). At the arbitration Swart
contended
that she had been unfairly retrenched in that Rand Water,
inter
alia,
had failed to comply with the procedural requirements as set out in s
189 of the LRA.
[3] The
First Appellant had found in favour of Swart and directed Rand Water
to reinstate her in her employment. Rand Water launched
an
application in the Labour Court in which it sought the review and the
setting aside of the First Appellants award. The review
was sought
on several grounds. One of the grounds upon which Rand Water relied
for the setting aside of the award was that the CCMA
lacked the
requisite jurisdiction to hear a dispute which concerned the
retrenchment of a single employee in circumstances where
such a
single employee alleges that the dismissal is unfair,
inter
alia
,
for want of proper compliance by the employer with the consultation
requirements set out in s 189. S 189 requires an employer to
consult
with its employee/s or their representatives before embarking on a
retrenchment program. Failure to comply with s 189 could
render a
dismissal both substantively as well as procedurally unfair.
[4] In
the Labour Court, Rand Water had argued that on a proper construction
and interpretation of s 191(12) the CCMA did not have
jurisdiction to
arbitrate the dispute between itself and Swart. At the arbitration,
Swart had alleged that her retrenchment and
subsequent dismissal was
unfair because Rand Water had failed to properly consult with her as
required by s 189. It was contended
on behalf of Rand Water that
because Swart had placed in issue non- compliance with s 189, s
191(12) precluded her from approaching
the CCMA to arbitrate a
dispute and that she was compelled to placed the dispute before the
Labour Court for adjudication
[5] The
Labour Cour
t
was persuaded by the argument advanced on behalf of Rand Water and
concluded at paragraphs 41 and 42:
“The
court is enjoined, when interpreting a statutory instrument, to give
effect to all the words in the statute. If it was the
legislature’s
intention that if one employee only is dismissed by reason of an
employer’s operational requirements, then the
CCMA will have
jurisdiction, the relevant section clearly need not have contained
the words ‘following a consultation procedure
in terms of section
189
.
’
It
must accordingly be determined what the legislature intended by the
insertion of these words. Having regard to the fact that the
word
‘following’ may mean either ‘subsequent to’ or ‘after’ as
well as bearing in mind that the phrase ‘in terms of’
means ‘in
conformity with’, it follows that the phrase “following a
consultation procedure in terms of section 189”
could
be interpreted to mean subsequent to or after a consultation process
in conformity with section 189’.
I am accordingly
driven to the conclusion that th
e
legislature intended that it only is in matters where only the
substantive fairness of a dismissal by an employer by reason of
its
operational requirements involving a single employee is to be
determined that the CCMA has jurisdiction to hear the matter.
As
soon as the procedural fairness of the dismissal is put in issue by a
single employee, I am satisfied that section 191(12) of
the LRA must
be interpreted as meaning that such cases must still be referred to
the Labour Court and that the CCMA will not have
jurisdiction to hear
them. I am satisfied that no absurdity will result from this
interpretation. Employees are not denied any
remedies. They may
still take their cases to the Labour Court.”
[6
]
In
Scheme
Data Services (Pty) Ltd. v. Myhill N.O. and Others
[2009]
4 BLLR 381
(LC
)
Ngalwana AJ expressed the view that the judgment of the court
a
quo
in this appeal is clearly wrong in law. After a careful analysis of
the judgment of the court
a
quo,
Ngalwana AJ concluded that s 191(12) did not exclude the jurisdiction
of the CCMA to arbitrate an unfair dismissal dispute in circumstances
where a single employee contends that the dismissal for operational
requirements is unfair because the employer did not comply with
the
procedural requirements as set out in s 189.
[7
]
In
my view, Ngalwana AJ’s interpretation of s 191(12) in
Scheme
Data Services
is to be preferred.
[8
]
Section
191(12) provides as follows
“if an employee is dismissed by reason of the employer’s
operational requirements following a consultation procedure in terms
of Section 189 that applied to the employee only, the employee may
elect to the further dispute either to Arbitration or to the Labour
Court”.
[9
]
S
191(12) does not expressly pronounce upon the jurisdiction of the
CCMA. What the section provides is that when a single employee
disputes the fairness of his/her dismissal for operational reasons,
and where such a dispute remains unresolved after conciliation,
the
single employee has a choice either to refer the dispute to the CCMA
for arbitration or to the Labour Court for adjudication.
[10
]
The
court
a
quo
took
the view that the words
“following a consultation procedure in terms of s 189”
meant
a consultation process that conformed with s 189 in all its
requirements. That is to say a single employee who disputes his/her
dismissal for operational requirements will have the election, as set
out in the section, only if the single employee accepts that
the
consultation procedure in terms of s 189 had been duly complied with.
[11]
To
interpret s 191(12) as the court
a
quo
did, in my view, is to defeat the very purpose of the section. The
court
a
quo
had pertinently raised the principle of purposive interpretation. It
said at paragraph [40] of its judgment:
“It is true that the LRA must be interpreted purposively to give
effect to an expeditious resolution of labour disputes
.
”
Having
expressed itself thus, the court
a
quo
then
embarked on a discourse to discover what the intent of the
legislature was when it enacted s 191(12). As was pointed out in
the
Scheme
Data Services
the court
a
quo
erred in its approach to the proper interpretation of the section.
[12]
Section
191(12) was introduced by way of an amendment by s 46(i) of Act 12 of
2002. The explanatory memorandum to the amending act
states at
paragraph 2.46 that s 191 is to been amended
“to provide that if only one employee is dismissed for operational
requirements the employee is able to refer the dispute up after
conciliation to the Labour Court or to Arbitration.”
There
is no indication that it was the intention of the legislature to
limit a single employee’s election to dispute that can be
referred
to arbitration to cases where only the substantive fairness is placed
in issue. My view is that the legislature intended
to give a single
retrenched employee, who may not be able to afford the legal costs of
Labour Court litigation, the opportunity to
have his/her unfair
dismissal dispute resolved by arbitration. That appears to be the
plain purpose of s 191(12). The court
a
quo
therefore erred in placing upon s 191(12) a construction which
limited a single employee’s election to either approach the CCMA
or
the Labour Court where both the substantive and procedural fairness
of his/her dismissal for operational reasons are placed in
issue.
[13
]
In
the result the appeal succeeds. The legal question raised in the
appeal is answered with the finding that the CCMA does have
jurisdiction
in terms of s 191(12) to hear disputes about the
procedural fairness of a dismissal for operational requirements
involving a single
employee.
_________________________
­­­­­­­­
JAPPIE JA
________________________
DAVIS JA
__________________________
LEEUW
JA
Appearances
For the Appellant
Mr JG van
der Riet SC
Instructed by Cheadle Thompson & Haysom
Date of Judgment: 09 March 2010