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[2015] ZALAC 1
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Qibe v Joy Global Africa (Pty) Ltd, In re: Joy Global Africa (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JA 119/13) [2015] ZALAC 1; [2015] 4 BLLR 415 (LAC); (2015) 36 ILJ 1283 (LAC) (15 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA
119/13
DATE: 15 JANUARY
2015
Reportable
In the matter
between:
HAPPY
QIBE
................................................................................
Applicant
And
JOY GLOBAL AFRICA
(PTY) LTD
.........................................
Respondent
In Re:
JOY GLOBAL AFRICA
(PTY) LTD
............................................
Applicant
And
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
...............................
First
Respondent
NICHOLUS SONO
N.O
.............................................
Second
Respondent
HAPPY
QIBE
...............................................................
Third
Respondent
Date heard: 20
November 2014
Date delivered:
15 January 2015
Summary: Review
of a rescission application- employer seeking rescission of a default
award granted against it- employer contending
that it belongs to a
bargaining council and CCMA not having jurisdiction - commissioner
dismissing rescission application –
Appeal – commissioner
assuming jurisdiction and failing to request the CCMA management to
make a ruling on whether to refer
the dispute to the relevant
bargaining council for resolution, or whether he could continue to
determine the dispute in terms of
s 147 of the LRA – CCMA
lacking jurisdiction – Labour Court’s judgment upheld –
appeal dismissed. CORAM:
MUSI JA, MURPHY
ET
SETILOANE AJJA
JUDGMENT
SETILOANE AJA
[1] The appellant
appeals against the decision of the Labour Court (Benjamin AJ) in
which it set aside on review an arbitration
award made by the
Commissioner acting under the auspices of the Commission for
Conciliation Mediation and Arbitration (“the
CCMA”), on
14 May 2013, in which it dismissed an application by the respondent
to rescind a default arbitration award which
was made on 28 March
2013, in the absence of the respondent.
[2]
The appellant was dismissed by the respondent on 9 December 2011. He
referred an unfair dismissal dispute to the CCMA. The matter
was set
down for arbitration on 26 March 2012. The parties were notified by
the CCMA of the date of set down by facsimile. On receipt
of the
notice of set down, on 17 February 2012, the respondent’s Group
Human Resource Manager, Mr S Skosana, addressed an
e-mail to Ms J
Modiba of the CCMA’s case management division, informing her
that the CCMA did not have jurisdiction to arbitrate
the dispute as
the respondent is a member of the Metal and Engineering Industries
Bargaining Council (MEIBC).
[1]
The respondent did not receive a response from the CCMA.
[3]
The Commissioner who was assigned the arbitration was presumably
unaware of the respondent’s e-mail of 17 February 2012,
and
made a default arbitration award on 28 March 2012, in which he found
that the appellant was unfairly dismissed and ordered
his
retrospective reinstatement.
On 13
April 2012, the respondent brought an application for the rescission
of the default award on
inter
alia
the grounds that the CCMA had no jurisdiction to arbitrate the
dispute as it should have been referred to the MEIBC under whose
jurisdiction it fell. With reference to the respondent’s e-mail
of 17 February 2012, the Commissioner found as follows in
his award
in the rescission application:
‘
The
CCMA’s failure to respond to the e-mail did not exempt the
employer from attending the hearing on 26 March 2012. Further
the
employer did not provide any proof of registration with the MEIBC.
The CCMA can assume jurisdiction to any dispute that falls
under the
jurisdiction of any Bargaining Council if the jurisdiction issue is
not or was not raised at the beginning of the arbitration.’
The
Commissioner found that the respondent had failed to provide a
reasonable and justifiable explanation for its default and was
in
wilful default. He accordingly dismissed the application for
rescission. On review, the Labour Court set aside the award of
the
Commissioner in the rescission application on,
inter
alia
, the grounds that that the CCMA
had no jurisdiction to deal with the dispute, as the parties were
members of a bargaining council.
The primary issue for determination
in this appeal is whether the CCMA is entitled to assume jurisdiction
in an unfair dismissal
dispute, where the parties are members of a
bargaining council or fall within the registered scope of a
bargaining council, and
one of them is a member of a bargaining
council. Since a decision in favour of the respondent on this ground
of appeal will be
dispositive of the appeal, I turn to deal with it
first.
[4]
A core function of the CCMA is to resolve disputes, referred to it in
terms of the LRA, through conciliation and arbitration.
As a
statutory body, the CCMA is obliged to act within the bounds of the
LRA. Its assumption of jurisdiction over a dispute that
is not
referred to it in terms of the LRA will, therefore, infringe upon the
principle of legality.
[2]
The
CCMA cannot, however, decide upon its own jurisdiction. In
South
African Rugby Players Association,
[3]
this Court held that:
‘
As
a general rule [the CCMA] cannot decide its own jurisdiction. I can
only make a ruling for convenience. Whether it has jurisdiction
or
not in a particular matter is a matter to be decided by the Labour
Court.
…
This
means that...., the CCMA may not grant itself jurisdiction which it
does not have. Nor may it deprive itself of jurisdiction
by making a
wrong finding that it lacks jurisdiction when it actually has
jurisdiction. There is, however, nothing wrong with the
CCMA
enquiring whether it has jurisdiction in a particular matter provided
it is understood that its decision on such an issue
is not binding in
law on the parties.’
[4]
[5]
The decision of a CCMA commissioner relating to the question of its
jurisdiction is, consequently, a preliminary matter that
may be set
aside by the Labour Court on review. The question as to whether the
CCMA has jurisdiction is contingent upon the existence
of certain
objectively pre-determined conditions as set out in the LRA, from
which it derives its existence.
[5]
In order for a party to succeed in a challenge to the jurisdiction of
the CCMA on review, it is required to demonstrate objectively
that
the jurisdictional facts necessary for the exercise of the CCMA’s
powers are absent.
[6]
In
determining, on review, whether the CCMA had jurisdiction to deal
with a dispute, the Labour Court must determine the issue
de
novo
.
[7]
[6]
Section 147 of the LRA provides a statutory exception to the rule
that the CCMA may not pronounce upon its own jurisdiction.
Where the
disputing parties fall under the jurisdiction of a bargaining
council,
[8]
the CCMA will not
have jurisdiction unless jurisdiction has been conferred on the CCMA
in terms of the provisions of s 147 of the
LRA.
[9]
Section 147 of the LRA provides in relevant part:
‘
(2)
(a) If at any stage after a
dispute
has been referred to the Commission, it becomes apparent that the
parties to the
dispute
are parties to a
council
,
the Commission may –
(i)
refer the
dispute
to the
council
for resolution; or
(ii)
appoint a commissioner or, if one has been
appointed, confirm the appointment of the commissioner, to resolve
the
dispute
in terms of
this Act
.
(b)... . ‘
(3) (a) If at any
stage after a
dispute
has been referred to the Commission, it
becomes apparent that the parties to the
dispute
fall within
the
registered scope of a council
and that one or more parties
to the
dispute
are not parties to the
council
, the
Commission may –
(i)
refer the
dispute
to the
council
for resolution; or
(ii) appoint a
commissioner or, if one has been appointed, the appointment of the
commissioner, to resolve the
dispute
in terms of this Act.
(b) … .’
[7]
As recently held by this Court in
Kgekwane
[10]
:
‘
Section
147 of the LRA makes provision for the performance of dispute
resolution functions by the CCMA in exceptional circumstances,
in
order to avoid delays that might otherwise be caused by
jurisdictional disputes. The section, accordingly, confers a choice
on the CCMA whether to resolve a dispute that has been erroneously
referred to it or whether to re-direct it to the proper forum.
[11]
’
In
terms of subsections (2) and (3) of s 147 of the LRA respectively, if
at any stage after a dispute has been referred to the CCMA,
it
becomes apparent (or evident) that the parties to the dispute are
parties to a bargaining council or that the parties to a dispute
fall
within the registered scope of a bargaining council but one or more
of the parties are not parties to that council, the CCMA
may either
refer the dispute to that bargaining council for resolution or
appoint a commissioner, or if one has already been appointed,
confirm
the appointment of such commissioner to resolve the dispute.
[12]
[8]
The Labour Court found s 147(2)(a) of the LRA to be applicable to the
jurisdictional question in this dispute on the basis that
both the
appellant and respondent are parties to the MEIBC. It seems to me,
however, from a perusal of the review application that
while both
parties fall within the registered scope of the MEIBC, only the
respondent is a member thereof.
[13]
I, accordingly, consider subsection (3)(a) of s 147 of the LRA to
have application, and not subsection (2)(a) thereof. Regardless,
however, of which of the two subsections of s 147 is applicable, once
it becomes apparent or evident that the parties to the dispute
are
parties to a bargaining council, or fall within the registered scope
of a bargaining council, and one or more of them are not
parties to
the bargaining council, a commissioner can only continue to hear the
matter if his or her appointment is confirmed by
the CCMA as provided
for in subsection 2(a)(ii) or 3(a)(ii) of s 147 of the LRA.
[14]
Thus, as held by this Court in
Kgekwane:
[15]
‘
[W]here
a dispute is referred to the CCMA, the matter may not proceed before
the CCMA once it is ascertained that the parties are
parties to a
bargaining council or fall within the registered scope of a
bargaining council, until the options set out in s 147(2)
and (3)
have been exercised by the CCMA.
[16]
…
[O]nce
that is ascertained, it is then for the CCMA or its delegate (and not
the commissioner hearing the matter when this was ascertained)
to
determine whether to refer the matter to the bargaining council or to
appoint a commissioner to determine the dispute or if
one has already
been appointed, to confirm his or her appointment
[17]
This
Court in
Kgekwane
went
on to hold that where the CCMA elects to appoint a commissioner to
arbitrate the dispute or to confirm the appointment of one
who has
already been appointed, the matter may then proceed as the CCMA has
jurisdiction to determine that dispute. Accordingly,
I consider the
Labour Court not to have erred in interpreting s 147(2(a)(ii) as
follows:
‘
In
terms of section 147(2)(a), once it becomes apparent that the parties
to the dispute are parties to a council, a Commissioner
can only
continue to hear the matter if his or her appointment is confirmed by
the Commissioner. This requires that someone other
than the presiding
Commissioner, presumably the Senior Regional Commissioner or another
official to whom this responsibility has
been delegated , consider
the matter and decide whether or not to confirm the arbitrator’s
appointment. This procedure was
not followed in the present matter.’
[9] I am, however,
of the view, that the Labour Court erred in interpreting subsection
(2)(a)(i) of s 147 of the LRA as empowering
a commissioner to refer a
dispute to a bargaining council, once it becomes apparent to him or
her that the parties to the dispute
are parties to a bargaining
council. To reiterate, s 147(2) and (3) of the LRA properly
interpreted mean that if at any stage after
a dispute is referred to
the CCMA, it becomes apparent to the CCMA or its delegate (or the
commissioner hearing the matter), that
the parties to the dispute are
parties to a bargaining council or fall within the registered scope
of a bargaining council, but
one or more of them are not parties to
the council, it is then for the CCMA or its delegate (and not the
commissioner hearing the
matter when this is ascertained) to
determine whether to refer the matter to the bargaining council or to
appoint a commissioner
to determine the dispute or if one has already
been appointed, to confirm his or her appointment. Thus, in the
current matter,
once the respondent had placed its founding affidavit
before the Commissioner, in the rescission application, contending
that the
it was a member of the MEIBC and that the appellant fell
within its registered scope, he was required in terms of s 147(3)(a)
of
the LRA to request the CCMA management to make a ruling on whether
to refer the dispute to the MEIBC for resolution, or whether
he could
continue to determine the dispute. This was not a decision for the
Commissioner to make.
[10]
The appellant contends that the provisions of s 147(2) and (3) of the
LRA apply only from the time that the dispute is first
referred to
the CCMA until the arbitration award is made. The contention thus
advanced is that once an arbitration award is made
(whether by
default or opposed) the provisions of s 147(2)(a) or 3(a) are no
longer applicable. This contention, in my view, is
misconceived for
two basic reasons: Firstly a default arbitration award made by an
arbitrator in the absence of one of the parties
is not final in
effect, as it may be rescinded or revisited by the arbitrator who
made the award.
[18]
Therefore,
although a default arbitration award will have full effect until set
aside, it is not final for purposes of a review,
as contemplated in
the LRA, because the proceedings are not complete and the award may
be revisited or rescinded by the arbitrator
who made the default
award. It follows that only the decision of the arbitrator dismissing
the rescission application may be reviewed
− and not the
default arbitration award itself – as it is not a final
decision.
[11] Secondly, the
appellant’s contention is inconsistent with the plain meaning
of both subsections (2)(a) and (3)(a) of
s 147, each of which
commences with the words “[i]f at any stage after a dispute has
been referred to the Commission…”.
The import of these
words read in the context of the section as a whole is that, if at
any stage after a dispute has been referred
to the CCMA until it
makes a final award (which brings the proceedings before it to
completion), it becomes apparent that the parties
to the dispute are
parties to a bargaining council, or fall within the registered scope
of a bargaining council, and that one or
all the parties are not
parties to the bargaining council, the CCMA may elect to refer the
dispute to the bargaining council for
resolution or appoint a
commissioner or, if one has been appointed, confirm the appointment
of the commissioner, to resolve the
dispute in terms of the LRA.
[12] I accept that,
at the commencement of the arbitration proceedings in this matter,
the Commissioner may not have been aware
of the respondent’s
challenge to the CCMA’s jurisdiction to deal with the dispute.
However, when he was presented with
the respondent’s
unchallenged version in the rescission application that, the MEIBC
enjoyed jurisdiction over the matter
to the exclusion of the CCMA,
and that all similar matters had been referred to the MEIBC for
resolution, the Commissioner ought,
at that stage, to have recognised
this as an apparent challenge to its jurisdiction, requiring the
decision of the CCMA in terms
of s 147 of the LRA. Instead he
dismissed the challenge to the CCMA’s jurisdiction by
erroneously assuming that he was entitled
to continue dealing with
the matter. Thus, once a challenge to the CCMA’s jurisdiction
was raised, the Commissioner was required
to refer it to the
appropriate CCMA official for a decision in terms of s 147 of the
LRA. This he erroneously failed to do. Accordingly,
the Labour Court
did not err in finding that:
‘
The
arbitrator’s assumption that the CCMA is entitled to exercise
jurisdiction in respect of a dispute under the jurisdiction
of a
bargaining council if not raised at the beginning of the arbitration
is not a correct reflection of the law. While it is correct
that
there are circumstances in which the CCMA may deal with a dispute
otherwise falling within the jurisdiction of a Bargaining
Council,
these provisions are not consistent with the arbitrator’s view
of his jurisdiction.’
[13] The
Commissioner, in my view, clearly misconstrued his powers under the
LRA in assuming that he was entitled to continue dealing
with the
matter, when he clearly had no jurisdiction in terms of s 147(3)(a)
to do. There is accordingly no basis to interfere
with the finding of
the Labour Court that the CCMA lacked jurisdiction to arbitrate the
dispute. The appeal accordingly falls to
be dismissed on this ground
alone. I see no reason in law or equity why costs should not follow
the result.
[14] In the result,
I make the following order:
The
appeal is dismissed with costs.
F
Kathree-Setiloane
Acting
Judge of the Labour Appeal Court of South Africa, Johannesburg
Musi
JA and Murphy AJA concurring
APPEARANCES
:
For the
Appellant: Mr D Mantsha
Instructed by
Lungisani Mantsha Inc.
For the
Respondent: Mr W.B Bank
Instructed
by Webber Wentzel
[1]
The
deponent to respondent’s founding affidavit in the review
application states that the respondent is a fully paid up
member of
the MEIBC and all its employees are covered by the MEIBC scope as
well as its associated wage determination.
[2]
EOH
Abantu (Pty) Ltd v CCMA
(2008) 29 ILJ 2588 (LC) at para 9.
[3]
South
African Rugby Players Association (SARPA); SA Rugby (Pty) Limited
and Others; v South African Rugby Players Union and Another
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at para 40.
[4]
SA
Rugby Players Association
at para 40.
[5]
EOH
Abantu
at
para
[6]
Benicon
Earthworks and Mining Services (Edms) Bpk v Jacobs and Others
(1994) 15 ILJ 801 (LAC) at 803H-804A.
[7]
Fidelity
Cash Management Services v Commission for Conciliation Mediation and
Arbitration and Others
(2008) 29 ILJ 964 (LAC) at para 101,
Ruan
Kukard v GDK Delkor (Pty) Ltd,
Case No JA 52/2013, 7 October (LAC) at para 12
,
Phaka and 19 Others v Commissioner Banks and Others
,
Case No 3/2014, 18 December 2014 (LAC) at para 29.
[8]
Section 191(1) of the LRA gives jurisdiction to a bargaining council
to resolve unfair dismissal and unfair labour practice disputes
if
the parties to the dispute fall within the registered scope of that
bargaining council. It provides
‘
(1)(a)
if 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 the 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.’
Subsections
(3) and (4) of s 51 of the LRA, which make provision for the dispute
resolution functions of bargaining councils provide:
‘
(3)
If a
dispute
is referred to a
council
in terms of this
Act
[footnote 11 omitted]
and any party to that
dispute
is not a party to
that
council
,
the
council
must
attempt to resolve the
dispute
−
(a)
through conciliation; and
(b)
if the
dispute
remains unresolved after conciliation, the
council
must arbitrate the
dispute
if−
(i)
This
Act
requires arbitration and any party to the
dispute
has requested that it be resolved through arbitration; or
(ii)
all the parties to the
dispute
consent to the arbitration
under the auspices of the
council
.
(4)
If one or more of the parties to a
dispute
that has been
referred to the
council
do not fall within the registered
scope of that
council
it must, refer the
dispute
to
the Commission.’
Footnote
11 to subsection 3 of s 51 of the LRA provides in relevant part:
‘
The
following disputes contemplated by subsection (3) must be referred
to a council: disputes about the interpretation or application
of
the provisions of Chapter II (see section 9); disputes that form the
subject matter of a proposed statutory council or lock-out
(see
section 64(1); disputes in essential services (see section 74);
disputes about unfair dismissals (see section 191); disputes
about
severance pay (see section 196); and disputes about unfair labour
practices (see item 2 in Schedule 7).’
[9]
EOH
Abantu
at para 11.
[10]
Nehawu
obo Kgekwane v Department of Developmental Planning
Case No: JA 68/13, 15 January 2015 (LAC) at paras 16-17.
[11]
Footnote
omitted
.
[12]
Kgekwane
at para 18
[13]
See
footnote 1 above.
[14]
Kgekwane
at para 18
[15]
At paras 18 and 19.
[16]
Footnote
omitted.
[17]
Footnote
omitted.
[18]
Similarly,
a judgment granted in default by a court in the absence of one of
the parties is not final in effect for purposes of
an appeal as it
may be rescinded by the court that granted it. See in this regard:
Zweni
v Minister of Law and Order
1993 (1) SA 523
(A) at 532J and
Pitelli
v Everton Gardens Projects CC
2010
(5) SA 171
(SCA) at para 25.