About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 26
|
|
South African Municipal Workers Union obo Manentza v Ngwathe Local Municipality and Others (JA 56/13) [2015] ZALAC 26; [2015] 9 BLLR 894 (LAC); (2015) 36 ILJ 2581 (LAC) (24 June 2015)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no: JA 56/13
DATE: 24 JUNE 2015
Reportable
In the matter between:
SOUTH AFRICAN MUNICIPAL WORKERS UNION
OBO K I
MANENTZA
.............................................................................................................
Appellant
And
NGWATHE LOCAL
MUNICIPALITY
......................................................................
First
Respondent
VIOLET PHATSOANE
N.O
...................................................................................
Second
Respondent
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
........................................................................................
Third
Respondent
Heard: 06 November 2014
Delivered: 24 June 2015
Summary: Review of jurisdictional ruling – interpretation of
section 191(5) of the LRA - employee referring dispute to the
bargaining council for conciliation – conciliation
unresolved and the 30 day period and the agreed extension period
lapsing – employee not referring dispute to arbitration within
the 90 day period after the lapse of the abovementioned period–
commissioner assuming jurisdiction – Labour Court setting aside
arbitration award on the basis that bargaining council not
having
jurisdiction without an application for condonation for the late
referral. Appeal – employee contending that a proper
interpretation of section 191(5) read with section 135 and 136 of the
LRA giving dismissed employee an election to refer the dispute
to
arbitration or adjudication on the lapse of the period of 30 days as
contemplated in the subsection, or await the the issue
of a
certificate of outcome – employee contending that the issuance
of the certificate of outcome a pre-requisite to
referral of
dispute to arbitration or adjudication - jurisdiction of the CCMA or
bargaining council to arbitrate an unfair dismissal
or unfair labour
practice dispute not conditional upon the issue of a certificate of
outcome – employee’s right of
referral to arbitration
accruing on the lapse of 30 days from the date on which the CCMA or
bargaining council received the referral
and the dispute remaining
unresolved. Sections 135 and 136 serving different purpose and having
no application to the resolution
of unfair dismissal and unfair
labour practice dispute under the LRA –
Time period for referral to arbitration not provided for in
section 191(5)(a) – employee expected to refer within a
reasonable
time – reasonable time within the context of the LRA
is 90 days as contemplated by sections 191(11) and 136(1)(b) of the
LRA. Employee ought to have referred his unfair dismissal dispute to
the bargaining council for arbitration within 90 days from
the lapse
of the 30 day period contemplated in s191(5) of the LRA or such
extended period agreed upon by the parties - bargaining
council not
having jurisdiction - Appeal dismissed.
Coram:
Waglay JP, Dlodlo AJA and Kathree-Setiloane AJA
JUDGMENT
KATHREE-SETILOANE AJA
[1]
This
matter concerns an appeal and cross-appeal against the judgment of
the Labour Court (Cele J) in which it reviewed and set aside
the
jurisdictional ruling of the second respondent (“the
arbitrator”), made under the auspices of the South African
Local Government Bargaining Council (“the Bargaining Council”),
on
the basis that the Bargaining Council lacked jurisdiction to
arbitrate the dispute because the referral was made outside the
time
period specified in s191(5) of the Labour Relations Act, 66 of 1995
(“the LRA”), and the appellant failed to apply
for
condonation.
[2]
The
appellant was employed as a casual worker by the Ngwathe Local
Municipality (“the Municipality”) from June 2001,
and was
paid R50 per day. He was called to render services as and when
required by the Municipality. On 11 March 2002, the Ngwathe
Municipal
Council (“the Council”) resolved that the position of
Clerical Assistant: Clearance Certificate & Debt
Collection is
filled. On 27 March 2002, the Municipality advertised the position as
a “staff vacancy”. The advertisement
was signed by the
Municipal Manager, Mr SK Khota (“the Municipal Manager”).
It did not identify the grade of employment
or the salary that the
successful incumbent would receive, but it did indicate that the
salary would be negotiated with the successful
candidate on an
individual basis.
[3]
The
appellant applied for the position on 11 June 2002. He was
interviewed by the Municipal Manager and, on 19 August 2002, the
Council resolved to employ the appellant “Mr K I Manentza
(temporary worker)” into the position of Clerical Worker
Parys
in the Finance Department. On 20 August 2002, the Municipal Manager
issued a letter of appointment to the appellant. The
appellant signed
acceptance of the letter on 23 August 2002, and was appointed, on
probation, for a period of six months on the
R34 639 notch of the
salary scale (job level 13/11). The period of termination was one
month. The probation period was to commence
on 1 September 2002. The
Municipal Manager was expressly authorised to conclude the contract
pursuant to the Council resolution
of the previous day.
[4]
On
18 September 2002, the Municipal Manager issued another letter of
appointment dated 20 September 2002 to the appellant. This
letter of
appointment replaced or substituted the previous letter of 20 August
2002. Once again, the letter recorded that the probation
period would
commence on 1 September 2002, but that the appellant would be
employed on the R69 977 notch of the salary scale (unevaluated
job
level 7). The appellant accepted the revised offer on 19 September
2002. Importantly, the appellant was advised in the letter
that the
post level at which he had been appointed, had yet to be evaluated
and that, if the evaluation required a change upwards
or downwards,
the appellant would be obliged to accept this condition.
[5]
On
30 October 2002, the appellant was informed by the Director:
Administration that the Council had resolved that he will be
appointed
at job level 13/11 (in terms of the first offer). The
resolution attached to another letter of appointment dated, 20 August
2002,
had a space for the appellant to accept acknowledgement of the
appointment and the letter. The appellant also received a salary
advice on 25 October 2002 indicating that his salary would be reduced
to R34 639.00 (as per the first letter of appointment).
[6]
It
is common cause that the appellant had, at this time, been actually
rendering services to the Municipality. The appellant was
short-paid
on the lower level and, as a result, referred a dispute concerning
unilateral changes to his conditions of employment
to the Bargaining
Council on 8 November 2002. The chronology thereafter shows that the
Municipal Manager had acted irregularly
when he replaced the first
offer. The appellant maintained the view that the Municipality was
bound by the second offer. The Municipality,
in turn, took the view
that the second offer was null and void, but never questioned the
validity of the first contract.
[7]
On
11 December 2002, the Municipality addressed another letter to the
appellant indicating that the second letter, dated 18 September
2002,
which substituted the letter of appointment, dated 20 August 2002,
was null and void. The appellant was given seven days
to indicate his
acceptance of the first letter of appointment, failing which it would
be assumed that “
you
do not accept your appointment as Clerical Assistant (Clearance
Certificates and Debt Collections) at job Level 13/11 and therefore
we will be left with no alternative but to terminate your employment
with the Council”
.
[8]
The
Municipality, thereafter, changed stance. It took the view that the
position to which the appellant was appointed was not on
its
organogram, and it prepared another revised letter of appointment,
dated 17 December 2002. It adopted this approach even though
it had
expressly resolved, on 19 August 2002, to approve the appointment of
the appellant. In terms of the revised letter, the
appellant was to
be appointed from 1 September 2002 on “
the
R37 718 notch of the salary scale “job level 12/12)”
(two
levels higher than the original, but obviously lower than the second
appointment grade). The appellant maintained that the
second letter
of appointment was valid.
[9] On 24 December 2002, the Municipality wrote another letter to the
appellant indicating to him that his appointment at job level
7 was
invalid, and informing him that if he did not accept the new revised
letter, he would not be allowed to tender his services
and would be
left without any contract of employment with the Municipality. The
appellant signed the revised offer, on 30 December
2002, but
annotated it with the words “
sign without prejudice of
right
”.
[10] The Municipality appeared to have wrongly taken this to be a
counter offer, and did not accept the annotation. It wrote to
the
appellant on 30 December 2002, indicating that his acceptance
“without prejudice of right” was not accepted, and
that
if he did not sign the letter, dated 17 December 2002, without
qualification, he would be left without a contract of employment
from
7 January 2003.
[11] This led to a stand-off between the parties. The employee
refused to back down from his reservation of rights, whilst the
Municipality insisted on it. This then led to the letter dated 10
January 2003 in which, the Director: Administration informed
the
appellant that because he had not signed the revised letter of
appointment, he was deemed to have rejected his appointment
in terms
of the Council resolution of 19 August 2002. The letter ended by
thanking the appellant for his services.
[12] The appellant treated this as a dismissal and, on 10 February
2003, referred a dispute for conciliation to the Bargaining
Council.
He alleged that he had been unfairly dismissed, and sought
reinstatement. The referral to the Bargaining Council was made
within
the 30 day time limit for the referral of an unfair dismissal dispute
in terms of s191(1)(b)(i) of the LRA. The conciliation
was set down
on 3 April 2004. It was extended for a period of seven days. An
agreement was signed recording this extension. The
agreement
indicated that depending on the outcome of the Municipality’s
consultation with its principals, “
the Bargaining Council
will be approached for issuing the certificate of outcome”.
After the lapse of seven days, the appellant requested the
Bargaining Council to issue a certificate of outcome. However,
instead
of issuing a certificate of outcome, the Bargaining Council
erroneously enrolled the matter for arbitration on 1 December 2003.
A
certificate of outcome was issued on 15 April 2004.
[13]
On 24 June 2004, the appellant referred the dispute to arbitration.
The arbitration was set down for hearing on 29 July 2004.
During the
arbitration hearing, the Municipality accepted that, at all material
times before the termination letter, the appellant
had in fact been
rendering services to the Municipality.
The
Municipality raised three points
in
limine
at the arbitration in which it contended that:
(a) The Bargaining Council lacked jurisdiction to arbitrate the
dispute because the referral to arbitration was late (as a result
of
the late issue of the certificate of outcome).
(b) The appellant was not dismissed.
(c) The appellant sought a declaratory order in a contractual dispute
between the parties, which the Bargaining Council had no
jurisdiction
to arbitrate.
[14]
The arbitrator found that there was no need to apply for condonation
as the certificate of outcome was issued on 15 April 2004,
and the
referral was made within 90 days of the date of issue of the
certificate of outcome. The arbitrator relied on
Sappi
Timber Industries (Pty) Ltd t/a Boskor Sawmills v CCMA and Others,
[1]
in which, the Labour Court held that the delay in issuing a
certificate of outcome did not result in its invalidity, and that if
a party lost a right to arbitration or access to the Labour Court as
a result of the delayed action of the CCMA, this would be
inherently
unjust. The arbitrator found that the Municipality did not question
the validity of the certificate, and that the Bargaining
Council
could not, in any event, treat it as irregular on the basis of the
judgment of this Court in
Fidelity
Guards Holdings (Pty) Ltd v Epstein and Others (Fidelity Guards)
.
[2]
[15] Having summarised the background facts which led to the various
letters of appointment and the parties’ respective arguments,
the arbitrator found that it was common cause that the appellant was
employed by the Municipality on 20 August 2002 as a Clerical
Assistant. She also found that he had signed the second letter of
appointment dated 18 September 2002. She then highlighted the
text of
the letter of 11 December 2002 in terms of which, the appellant was
informed that if he did not accept the initial offer,
the
Municipality would be left with no alternative but to terminate his
employment. She also drew attention to the fact that the
appellant
was advised in the letter dated 10 January 2003, that his services
would not be required from Monday, 13 January 2003.
[16] The arbitrator found that the appellant had in fact been
rendering services to the Municipality from 20 August 2002, and that
his services came to an abrupt end on 10 January 2003. She found that
the contract of employment had commenced on 20 August 2002
and that
the Municipality terminated the contract on 10 January 2003. She
indicated that even if the letters of appointment were
invalid, the
appellant had been employed on a temporary basis prior to his
appointment in terms of these letters and was, therefore,
entitled,
as a temporary worker, to protection under the LRA. She, accordingly,
found that there was an employment relationship
between the appellant
and the Municipality and that the Municipality had dismissed him.
[17] She rejected the contention that the appellant was shut out or
locked out, and instead found that there was a dismissal, and
that
the Municipality was required to prove the fairness of the dismissal
at the arbitration. In respect of the third point
in limine,
she
indicated that the dispute was not about declaratory relief in a
contractual matter, but that it concerned a dismissal and its
fairness. She accordingly found that the Bargaining Council had
jurisdiction to determine the fairness of the dismissal.
[18] In the review application, the Municipality attacked all three
findings of the arbitrator. The Labour Court, however, only
dealt
with the first issue and found that the referral to arbitration was
out of time. It reasoned as follows:
‘
Section
191(5) of the LRA provides that if the council has certified that the
dispute remains unresolved or if 30 days have expired
since the
council received a referral, and the dispute remains unresolved, the
council must arbitrate the dispute at the request
of the employee, if
certain identified conditions are met. Section 191(11) (a) of the LRA
prescribes a maximum period of 90 days
within which a dispute must be
referred to arbitration after conciliation failed to resolve it. If
good cause is shown to exist
where a referral is made after the
expiry of the 90 days, in my view, the council may grant condonation
just as this Court is specifically
empowered by section 191(11)(b) to
grant condonation. To hold otherwise would result in an absurdity on
the face of a clearly prescribed
maximum period within which a
referral ought to be made to the council. Holding otherwise would
render the prescribed period of
90 days nugatory. After 30 days since
the council received a referral but before the lapse of 90 days, Mr
Manentza was at liberty
to refer the dispute for arbitration, see
Cappwawu
and Others v R & B Timbers CC t/a Harding Treated Timbers.
He
did not. Nor did he apply for condonation for such lateness. His
unexplained inactivity must have fatal consequences for his
case.
…
I am consequently persuaded by
the submission of the [Municipality] in holding that the [Bargaining
Council] and therefore the [arbitrator]
had no jurisdiction to
arbitrate a dispute in this matter in the absence of a condonation
application, where the period of the
delay in referring the dispute
was in the region of 9 months.’ [Footnote omitted]
[20] The appellant appeals against the judgment of the Labour Court
on the basis that the arbitrator was correct in finding that
there
was no need for the appellant to apply for condonation because the
referral to arbitration was within the 90 day time period
from the
date of the certificate of outcome. The Municipality cross-appeals
against the failure of the Labour Court to pronounce
upon the two
remaining issues. In short, it is the appellant’s case that the
arbitrator was correct on both remaining issues:
the appellant was
clearly dismissed and the true nature of the dispute was a standard
unfair dismissal dispute which the Bargaining
Council had
jurisdiction to arbitrate.
[21]
The first ground of appeal relates to the question of whether the
Bargaining Council had jurisdiction to arbitrate the dispute.
In a
jurisdictional challenge, the test on review is simply whether the
Bargaining Council had jurisdiction, on the objective facts
and on
the law, to arbitrate the dispute.
[3]
Section 191
[4]
of the LRA sets out the regulatory framework for the resolution of
unfair dismissal and unfair labour practice disputes. Section
191(1)(a) of the LRA provides that a dispute about the fairness of a
dismissal or a dispute about an unfair labour practice may
be
referred by the dismissed employee, or the employee alleging the
unfair labour practice to a bargaining council if the parties
to the
dispute fall within the registered scope of the bargaining council,
or to the CCMA if no bargaining council has jurisdiction.
Section
191(1)(a) of the LRA, accordingly, confers jurisdiction on a
bargaining council to resolve unfair dismissal or unfair labour
practice disputes if the parties to the dispute fall within the
registered scope of the bargaining council.
[22] Section 191(4) of the LRA obliges the bargaining council or the
CCMA to attempt to resolve the dispute through conciliation.
Section
191(5)(a) obliges either the bargaining council or the CCMA, at the
request of an employee alleging any of the circumstances
listed in
subsections (a)(i) to (iv), to arbitrate the dispute if the
bargaining council or a commissioner of the CCMA has certified
that
the dispute remains unresolved, or if 30 days have expired since the
bargaining council or the CCMA received the referral,
and the dispute
remains unresolved. Section 191(5)(a) of the LRA provides:
’
If a
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−
(a)
the
council or the Commission must arbitrate the dispute at the request
of the employee if−
(i)
the
employee has alleged that the reason for dismissal is related to the
employee’s conduct or capacity, unless paragraph
(b) (iii)
applies;
(ii)
the
employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms of section
197 or
197A, unless the employee alleges that the contract of employment was
terminated for a reason contemplated in section 187;
(iii)
the
employee does not know the reason for dismissal; or
(iv)
the
dispute concerns an unfair labour practice; or
(b)
…’
[23] The jurisdictional question in this appeal turns on the
interpretation of s191(5) of the LRA. The appellant contends for a
disjunctive interpretation of s191(5) by virtue of the presence of
the conjunctive “or” in the subsection. The appellant
submits that read disjunctively, s191(5) of the LRA gives the
employee an election or choice to speed up the process by referring
the dispute to arbitration after the expiry of the 30 day period,
contemplated in the subsection, or wait for conciliation to take
place and for a certificate to be issued. It relies in support of
this interpretation of s191(5) of the LRA on the decision of
Fidelity
Guards
in which this Court held as follows in relation to the
operation of s191(5) of the LRA:
‘
It
will be clear from the provisions of ss(1) to (5) of sec 191 above
that, when there is a dispute about the fairness of a dismissal,
a
certain process may be followed which ultimately leads to the
resolution of such dispute either by way of arbitration or
by
way of adjudication. The first step in that process is the referral
of the dispute to a council or the CCMA for conciliation.
The second
is that the applicant must satisfy the CCMA or the council that a
copy of the referral has been served on the other
party to the
dispute. Subject to sec 191(5) the third step is that the council or
the CCMA must attempt to resolve the dispute
through conciliation. In
terms of sec 191(5) the commissioner must then issue a certificate of
outcome to the effect that the dispute
remains unresolved or a period
of 30 days must expire after the council or the CCMA received the
referral. Thereafter comes the
arbitration of the dispute by the
council or the CCMA or the adjudication of the dispute by the Labour
Court, as the case may be.
The dispute is required to be referred to
either a council or the CCMA within 30 days of the date of dismissal.
However, if it
is not referred within that period, the council or the
CCMA has power to permit a late referral on good cause shown.
In
my view the language employed by the legislature in sec 191 is such
that, where a dispute about the fairness of a dismissal has
been
referred to the CCMA or a council for conciliation, and, the council
or commissioner has issued a certificate in terms of
sec 191(5)
stating that such dispute remains unresolved or where a period of 30
days has lapsed since the council or the CCMA received
the referral
for conciliation and the dispute remains unresolved, the council or
the CCMA, as the case may be, has jurisdiction
to arbitrate the
dispute. That the dispute may have been referred to the CCMA or
council for conciliation outside the statutory
period of 30 days and
no application for condonation was made or one was made but no
decision on it was made does not affect the
jurisdiction to arbitrate
as long as the certificate of outcome has not been set aside. It is
the setting aside of the certificate
of outcome that would render the
CCMA or the council to be without the jurisdiction to arbitrate.
’
[5]
[24]
The correctness of this interpretation, it argues, is also evident
from the provisions of s191(5) which, it submits, foreshadows
a
pre-conciliation phase at which the parties could agree to extend the
conciliation phase beyond the 30 day period (as has happened
in this
case). It finds support for this contention in the provisions of
s135
[6]
of the LRA which makes provision for the resolution of disputes
through conciliation by the CCMA.
[7]
Section 135(1) provides that when a dispute has been referred to the
CCMA (or a bargaining council), the CCMA must appoint a commissioner
to attempt to resolve it through conciliation. Section 135(2) of the
LRA then provides that the commissioner appointed by the CCMA
must
attempt to resolve the dispute through conciliation within 30 days of
the date the CCMA received the referral; however the
parties may
agree to extend the 30 day period. Section 135(5) of the LRA
provides:
‘
When
conciliation has failed, or at the end of the 30-day period or any
further period agreed between the parties−
(a)
the
commissioner must issue a certificate stating whether or not the
dispute has been resolved;
(b)
the
Commission must serve a copy of that certificate on each party to the
dispute or the person who represented a party in the conciliation
proceedings; and
(c)
the
commissioner must file the original of that certificate with the
Commission.’
[25]
The appellant submits that it is clear from the provisions of s135(5)
of the LRA that the conciliation phase, if extended (in
terms of
s135(2) of the LRA), is brought to an end by the issuing of a
certificate by the commissioner stating whether the dispute
has been
resolved. It argues that the commissioner appointed by the CCMA or a
bargaining council to resolve the dispute is obliged
in terms of
s135(5)(a) of the LRA to issue a certificate of non-resolution when
conciliation has failed, or at the end of the 30
day period or any
further period agreed between the parties. It contends in this regard
that, the provisions of s191(5) of the
LRA foreshadow the possibility
that the parties may have elected to extend the conciliation phase
beyond the 30 day period and
it, therefore, provides the employee
with a choice not to refer the dispute to arbitration on the expiry
of the 30 day period contemplated
in s191(5) of the LRA, but to wait
for conciliation to take place and for a certificate to be issued.
This, it contends, calls
for s191(5) to be read together with the
provisions of s136(1)(a) and (b)
[8]
of the LRA which provide that if the LRA requires a dispute to be
resolved through arbitration, the CCMA must appoint a commissioner
to
arbitrate that dispute if: a commissioner has issued a certificate
stating that the dispute remains unresolved; and within 90
days after
the date on which that certificate was issued, any party to the
dispute has requested that the dispute be resolved through
arbitration. It points out that s136(1)(b) confers the CCMA with a
discretion, on good cause shown, to condone a party’s
non-observance of that timeframe and allow a request for arbitration
after the expiry of the 90-day period.
[26] In addition, the appellant contends that this election is also
available in s191 (11) of the LRA which provides that the referral
in
terms of subsection (5)(b) of a dispute to the Labour Court for
adjudication, must be made within 90 days after the bargaining
council or (as the case may be) the commissioner of the CCMA has
certified that the dispute remains unresolved. This election,
it
contends, is also evident from the provisions of s64(1)(a)(i) and
(ii) of the LRA, which deal with the right to strike and the
recourse
to lock-out. Section 64 (1) provides:
‘
Every
employee has the right to strike and every employer has recourse to
lock-out if−
(a)
the
issue in dispute has been referred to a council or to the Commission
as required by this Act, and –
(i)
a
certificate stating that the dispute remains unresolved has been
issued; or
(ii)
a
period of 30 days, or any extension of that period agreed to between
the parties to the dispute, has elapsed since the referral
was
received by the council or the Commission; …’
The contention thus advanced by the appellant is that these sections
of the LRA make it abundantly clear that a referring party
may wait
for the issuing of a certificate of outcome before taking the next
step and that, the Labour Court erred by not giving
effect to the
clear wording of the LRA.
[27] Accordingly, the appellant submits that it is clear from the
text of s191(5) read in the context of the LRA as a whole, that
an
employee is entitled to wait for a certificate to be issued before
referring a dispute to the CCMA because the 90 days as provided
for
in s136(1)(b) of the LRA, only starts running from the date on which
the certificate of outcome is issued. It reiterates that
the employee
has a choice to speed up the process by referring the dispute to
arbitration after the expiry of the 30 day period
contemplated in
s191(5) of the LRA, but is not obliged to do so. The purpose of
s191(5) of the LRA, it points out, is to encourage
the parties to
attend conciliation in an effort to resolve the dispute and, although
attendance is not compulsory, the Legislature
seeks to encourage the
parties to achieve consensus through a conciliation process. The
appellant, accordingly, contends that the
referral of this unfair
dismissal dispute, by the appellant to arbitration was clearly within
the stipulated time period as provided
for in s136(1)(b) of the LRA
and that the Labour Court erred in finding that the Bargaining
Council had no jurisdiction to arbitrate
the dispute because it had
not sought condonation.
[28]
I am unable to agree with the interpretation of s191(5) of the LRA
which the appellant contends for. Although the presence
of the
conjunctive “or” in s191(5) of the LRA calls for a
disjunctive reading of the provision, I disagree that it
gives an
employee an election to speed up the process by referring the dispute
to arbitration on the expiry of the 30 day period
contemplated in the
subsection, or wait for conciliation to take place and for a
certificate to be issued. On a proper interpretation,
s191(5) of the
LRA
entitles
an employee to refer an unresolved unfair dismissal or unfair labour
practice dispute for arbitration to the CCMA or a
bargaining council,
in terms of subsection (a) thereof, or for adjudication to the Labour
Court, in terms of subsection (b) thereof,
upon the occurrence of
either of two events: the issue of a certificate of non-resolution of
the dispute or the expiry of the 30
day period from either the CCMA’s
or the bargaining council’s receipt of the referral.
The
effect of this interpretation is that the occurrence of either of
these two events entitles an employee to request the bargaining
council concerned or the CCMA to arbitrate the dispute in terms of
s191(5)(a) of the LRA or to refer the dispute to the Labour
Court for
adjudication in terms of s191(5)(b) thereof.
[29] Section 191(5) of the LRA provides for the occurrence of either
of the events: the issue of a certificate or expiry of 30
days from
receipt of the referral as an objective fact which founds the
employee’s right to proceed to arbitration or adjudication.
The
employee’s entitlement to refer the matter to arbitration or
adjudication as contemplated in s191(5)(a) and (b) of the
LRA
respectively, does not arise from any election on the employee’s
part as contended for by the appellant, but rather
from whichever of
the two jurisdictional events occurs first in sequence of time. Thus,
where conciliation takes place under the
auspices of the CCMA or a
bargaining council within the 30 day period contemplated in s191(5)
of the LRA, and a certificate of
non-resolution is issued within that
period, the employee’s right to refer the dispute to
arbitration or adjudication will
be triggered by the issue of the
certificate as the jurisdictional event conferring this right. In
this case, the subsequent expiry
of the 30 day period will play no
role in founding the employee’s right to refer the dispute to
arbitration or adjudication.
[30] Similarly, where the 30 day period contemplated in the
subsection lapses without the holding of a conciliation proceeding
and the CCMA or a bargaining council certifying that the dispute
remains unresolved, the lapse of the 30 day period will form the
jurisdictional trigger entitling the employee to refer the dispute to
arbitration. This right, having accrued to the employee upon
the
lapse of the 30 day period contemplated in s191(5) of the LRA will
not be affected by the convening of any subsequent conciliation
proceedings or the issue of a certificate of outcome consequent
thereupon. As correctly pointed out by the Municipality, in the
latter scenario, the issue of the certificate would have no effect in
law as it would be superfluous to the employee’s right
to refer
the unfair dismissal or unfair labour practice dispute to arbitration
since this right would have already accrued to the
employee on the
lapse of 30 days from the date that the CCMA or the bargaining
council had received the referral.
[31]
The correctness of this interpretation is aptly illustrated in two
judgments of this Court, namely
NUMSA
v Driveline Technologies (Pty) Ltd and Another (Driveline
Technologies
),
[9]
and
Premier
of Gauteng and Another v Ramabulana NO and Others (Ramabulana).
[10]
In
Driveline
Technologies,
this
Court held that:
‘
The
[LRA] does contemplate that the Labour Court will have jurisdiction
to adjudicate a dispute even when there has been no meaningful
conciliation in respect of such a dispute. This is supported by the
fact that section 191 (5) of the Act contemplates, among others,
that
a dispute may be referred to arbitration or adjudication if the
dispute remains unresolved after a period of 30 days has lapsed
since
the council or the CCMA received the referral of such dispute for
conciliation. Obviously, this provision was the product
of past
experience under the old Act.
Under
the old Act our experience taught us that, without a provision such
as [section 191(5) of the LRA], there could be long delays
in the
conciliation of disputes. All an employer would need to do in order
to frustrate the process if a meeting for conciliation
was a
sine
qua non
before a dispute could be adjudicated, would be to ensure that he did
not cooperate in having the conciliation meeting held.’
[11]
[32] Similarly, eight years later, in
Ramabulana
, this Court
held as follows in regard to the import and meaning of s191(5) of the
LRA:
‘
What
the provision of section 191(5) of the [LRA] 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.
Where no attempts could be made
or were made − maybe 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 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.
Whether
the dispute goes to arbitration or adjudication depends on whether
the case falls within the ambit of either section 191(5)
(a) or (b)
of the [LRA]. This means that a failure by the employee to attend a
conciliation meeting convened pursuant to the referral
of his dispute
to the CCMA or a bargaining council for conciliation does not take
away, and cannot possibly take away from him
the right which section
191(5) (a) or (b) gives to him to have his dispute arbitrated if he
so requests or adjudicated if he refers
it to the Labour Court for
adjudication.’
[12]
[33]
By the same token, in interpreting the similarly worded
jurisdictional requirement for embarking on a protected strike in
terms of s64(1)(a) of the LRA, the Labour Court in
City
of Johannesburg Metropolitan Municipality and Another v SAMWU and
Others (Johannesburg Metropolitan Municipality
)
[13]
dismissed the employer’s contention that the commissioner’s
ruling that the bargaining council had no jurisdiction
to entertain
the union’s referral of the strike issue for conciliation could
serve to render the strike unprotected for its
failure to comply with
the requirements for a protected strike in terms of s64(1)(a) of the
LRA on the basis that:
‘
[I]t
is not necessary under the LRA for a conciliation hearing actually to
take place before a strike can be protected. In terms
of section
64(1)(a) of the LRA, it is sufficient if 30 days have lapsed since
the referral of the dispute. In other words, the
commissioner’s
ruling affected only the convening of the conciliation process; it
says no more than that the bargaining council
did not have the
jurisdiction to conciliate the dispute. Since a conciliation meeting
is not a precondition for a strike to be
protected (because it is
sufficient that 30 days have elapsed after the date of referral), the
commissioner’s ruling is not
a relevant factor.’
[14]
[34]
The
disjunctive interpretation of s191(5) and 64(1)(a) of the LRA as
applied by this Court in
Driveline
Technologies
and
Ramabulana
and
by the Labour Court in
Johannesburg
Metropolitan Municipality
respectively, is consistent with the core objective of the LRA, which
is to provide for the speedy resolution of disputes in the
workplace.
[15]
This leaves no room for the appellant’s contention that an
employee who refers an unfair dismissal or unfair labour practice
dispute to the CCMA or a bargaining council for arbitration or the
Labour Court for adjudication, can elect which of the two events
to
rely upon in founding his or her right to a referral to arbitration
or adjudication in terms of s191(5)(a) or (b) of the LRA.
[35]
It is imperative to the interpretative process to distinguish the
provisions of s191 of the LRA from those of s135 and 136
of the LRA
thereof, in relation to their purpose in the overall scheme of the
LRA. Section 191 which is found in Chapter VIII of
the LRA, regulates
the resolution of unfair dismissal and unfair labour practice
disputes through conciliation and arbitration
by a bargaining council
with jurisdiction or the CCMA where no bargaining council has
jurisdiction or through adjudication by the
Labour Court. The purpose
of s191 is to regulate the resolution of these specific disputes by
the CCMA, bargaining councils or
the Labour Court. In comparison, the
purpose of s135 and 136 which are found in Part C Chapter VII of the
LRA, is to regulate the
resolution of disputes of a general
nature
[16]
referred to the CCMA in terms of s133(1)(b)
[17]
of the LRA and disputes about matters of mutual interest referred to
the CCMA in terms of s134
[18]
thereof. Although the regulation of the resolution of unfair
dismissal and unfair labour practice disputes is not expressly
excluded
from the ambit of Part C Chapter VII of the LRA, its
provisions must necessarily be interpreted as impliedly excluding the
resolution
of unfair dismissal and unfair labour practice disputes
from its regulatory ambit, as any other interpretation, in my view,
would
lead to a conflict with s191 of the LRA.
[36]
There are marked differences between the manner in which s191
regulates the resolution of unfair dismissal and unfair labour
disputes and the manner in which s135 and 136 do so, respectively.
The most fundamental difference between s191 of the LRA on the
one
hand, and s135 and 136 on the other, is that in s191 there is no
obligation as in s135(5)
[19]
of the LRA, on a commissioner of the CCMA or a bargaining council to
issue a certificate of outcome stating whether the dispute
has been
resolved when the conciliation has failed, or at the end of the 30
day or any further period agreed between the parties.
Importantly,
whilst it is implicit from s191(5) of the LRA that the conciliation
proceedings must take place prior to the lapse
of 30 days from the
date of receipt of the referral by the CCMA or a bargaining council,
and that the commissioner of the CCMA
or a bargaining council must
issue a certificate of non-resolution within this period for the
certificate to form the jurisdictional
foundation for the referral to
arbitration or adjudication of the dispute, there is no requirement
in the subsection, as in s 135(2)
of the LRA, that the parties may
agree to extend the 30 day period. This is because s191(5) of the LRA
contemplates that an employee
will be entitled to refer his or her
unresolved unfair dismissal or unfair labour practice dispute to
arbitration or adjudication,
on expiry of 30 days from the date that
the CCMA or bargaining council received the referral. Thus any
extension of this 30 day
period, will effectively deny the dismissed
employee or an employee alleging an unfair labour practice the right
to refer his or
her dispute to arbitration or adjudication on the
lapse of the 30 day period contemplated in s191(5) of the LRA.
[37] Likewise, unlike in s136(1) of the LRA, there is no requirement
in s191 of the LRA that the CCMA must only appoint a commissioner
to
arbitrate a dispute where the commissioner has issue a certificate
stating that the dispute remains unresolved, and within 90
days after
the date on which that certificate was issued, any party to the
dispute has requested that the dispute be resolved through
arbitration. It is also notable that whilst a request for arbitration
or referral to adjudication under s191 of the LRA may only
be made by
a dismissed employee or an employee alleging an unfair labour
practice, a request for arbitration, under s136 of the
LRA, may be
made by any party to the dispute.
[38] Therefore, unlike in s135(5) and s136(1) of the LRA where the
legislature has sought to link the right of referral to arbitration
to the conciliation process by obliging the commissioner when the
conciliation has failed, or at the end of the 30 day period or
any
further period agreed between the parties to issue a certificate
stating whether the dispute has been resolved and by requiring
that
such certificate be issued before a commissioner is appointed to
arbitrate the dispute, the provisions of s191 of the LRA
contain no
such requirements. Nor has the legislature in s191 of the LRA sought
to link the validity of the referral to arbitration
and the
jurisdiction of the CCMA or a bargaining council to arbitrate the
dispute to the certificate of outcome of the conciliation.
This is
because s191(5) of the LRA contemplates that the CCMA or a bargaining
council will have jurisdiction to arbitrate an unfair
dismissal and
unfair labour practice dispute on the lapse of 30 days from the date
on which the CCMA or bargaining council received
the referral,
regardless of whether a certificate of non-resolution has been issued
by the CCMA or the bargaining council concerned.
[39]
Thus, unlike under s136 of the LRA, the issue of a certificate of
non-resolution does not found the right of referral to arbitration
or
adjudication under s191(5) of the LRA, as the subsection confers this
right upon the lapsing of the 30 day period contemplated
in the
subsection regardless of whether conciliation
[20]
actually takes place or a certificate of non-resolution is issued by
the CCMA or the bargaining council concerned. It follows that
neither
the holding of an actual conciliation nor the issue of a certificate
of non-resolution by the CCMA or the bargaining council
concerned, is
a prerequisite for purposes of referring an unfair dismissal or
unfair labour practice dispute to arbitration or
adjudication in
terms of s191(5)(a) and (b) of the LRA, where there has been a lapse
of 30 days from the date on which the CCMA
or bargaining council
received the referral and the dispute remains unresolved.
[21]
[40] The provisions of s191 of the LRA on the one hand, and those of
s135 and 136 on the other, are mutually exclusive. Put differently,
they do not and quite simply cannot both regulate the process to be
followed by a dismissed employee or an employee alleging an
unfair
labour practice when referring his or her dispute to the CCMA or a
bargaining council for conciliation and arbitration or
the Labour
Court for adjudication, as this would surely lead to a conflict
between them. As demonstrated, they serve distinct roles
and
objectives in the overall scheme of the LRA. Sections 135 and 136 of
the LRA, therefore, have no application to the resolution
of unfair
dismissal and unfair labour practice dispute under the LRA. The
appellant’s reliance on s 135(5) and 136(1)(a)
and (b) of the
LRA in support of its interpretation of s191(5) of the LRA, as
providing the employee with a choice to refer the
dispute to
arbitration or adjudication on the lapse of the period of 30 days as
contemplated in the subsection, or await the outcome
of the
conciliation process and the issue of a certificate of outcome is
entirely misplaced.
[41] Whilst conceding that an employee acquires a right in terms of
s191(5) of the LRA to proceed to arbitration on the expiry
of the 30
day period contemplated in the subsection without the issue of a
certificate of outcome, the appellant contends that
the employee is
entitled to elect not to do so and to await the conciliation and the
issue of a certificate consequent thereupon,
before referring the
dispute to arbitration because the 90 days contemplated in s136(1)(b)
of the LRA, will only start running
when the certificate is issued.
The appellant contends that in so electing, the issue of a
certificate is then a pre-requisite
for referring the matter to
arbitration. I disagree for two primary reasons. First because as
demonstrated above, s136 of the LRA
has no application to the process
that an employee is required to follow when referring an unfair
dismissal or unfair labour practice
dispute to the CCMA or a
bargaining council for conciliation and arbitration or, the Labour
Court for adjudication and second,
whilst it is open to the employee
to elect not to proceed to arbitration, and to await the outcome of
the conciliation proceedings,
since s191(5) of the LRA contains no
bar to doing so, the flaw in the appellant’s argument lies in
its erroneous premise
that where the 30 day period has lapsed and the
employee elects to await the outcome of conciliation prior to
referring the matter
to arbitration − an election not envisaged
in the provisions of s191 (5) of the LRA − he or she would then
require
a certificate of outcome to enable him to proceed to
arbitration.
[42] I repeat, that upon the 30 day period expiring prior to the
issue of a certificate of outcome, the issue of a certificate
is not
required to found the employee’s right of referral of the
dispute to arbitration or adjudication. As alluded to above,
the
issue of a certificate of non-resolution is not a pre-requisite for a
referral to arbitration or adjudication in these circumstances
since
the right of referral would have already accrued to the employee on
expiry of the 30 day period contemplated in the subsection.
To my
mind, the issue of a certificate of outcome following such accrual,
would be superfluous to the employee’s right of
referral to
arbitration, as would be the holding of conciliation proceedings,
pursuant to which such certificate is issued, since
s191 of the LRA
does not envisage that on the lapse of the 30 day period contemplated
in subsection (5), a further attempt at conciliation
should be made.
Thus, the subsequent holding of conciliation proceedings will have no
impact upon the employee’s right to
refer his or her dispute to
arbitration or adjudication on the lapse of the 30 day period
contemplated in s191(5) of the LRA.
[43]
The appellant also relies on the decision of this Court in
Fidelity
Guards
in
support of its interpretation of s191(5) of the LRA. I am of the view
that such reliance is equally misplaced because, as will
be
illustrated below, the decision is wrong.
Fidelity
Guards
concerned
an appeal against a dismissal of a review application in which, one
of the grounds of contention was that the arbitrator
lacked
jurisdiction to hear the dispute as the conciliation proceedings were
invalid due to the employee’s failure to apply
for condonation
for the late referral of the dispute for conciliation outside the
statutory period of 30 days for an unfair dismissal
dispute in terms
of s191(1)(b)(i) of the LRA. The Court held that the fact that a
dispute
is referred to the CCMA or a bargaining council for conciliation
outside the statutory period of 30 days, and no application
for
condonation is made or one is made but no decision on it is made,
would not affect the jurisdiction of the CCMA or the bargaining
council concerned to arbitrate the dispute, provided the certificate
of outcome has not been set aside. It is the setting aside
of the
certificate of the outcome, the Court held, that would render the
CCMA or the bargaining council concerned to be without
jurisdiction
to arbitrate.
[22]
[44]
In arriving at this conclusion, the Court appears to have
impermissibly grafted the provisions of s135 and 136(1)(a) and (b)
of
the LRA onto the referral, by an employee, of his unfair dismissal
dispute to the CCMA for conciliation and arbitration
[23]
which, as demonstrated above, is regulated exclusively by s191 of the
LRA. Having gone astray in this respect, the Court then,
erroneously,
proceeded to link the setting aside of the certificate of outcome to
the jurisdiction of the CCMA or bargaining council
to arbitrate an
unfair dismissal dispute. As alluded to above, the jurisdiction of
the CCMA or bargaining council to arbitrate
an unfair dismissal or
unfair labour practice dispute is not conditional upon the issue of a
certificate of outcome, as an employee’s
right of referral to
arbitration accrues on the lapse of 30 days from the date on which
the CCMA or bargaining council received
the referral, and the dispute
remains unresolved.
[45] Whilst the issue of a certificate of outcome by a commissioner
of the CCMA or bargaining council may found the right of referral
of
an unfair dismissal or unfair labour practice dispute to arbitration
or adjudication prior to the lapse of the 30 day period
contemplated
in s191(5) of the LRA, as the right of referral accrues on the issue
of such certificate and is, consequently, a pre-requisite
for a
referral to arbitration or adjudication in those circumstances only,
the subsection does not impose an obligation on a commissioner
of the
CCMA or a bargaining council to issue a certificate of outcome on the
lapse of 30 days from the date on which the CCMA or
bargaining
council received the referral, and the dispute remains unresolved.
Since the issue of a certificate of non-resolution
by the CCMA or a
bargaining council concerned, is not a pre-requisite for a referral
to arbitration in terms of s191(5)(a) of the
LRA, it cannot, in my
view, cure the lack of jurisdiction of the CCMA or a bargaining
council to arbitrate an unresolved unfair
dismissal or unfair labour
practice dispute, where such certificate is issued after the elapse
of 30 days from the date on which
the CCMA or bargaining council
received the referral, and the employee has not sought condonation
for its non-observance of that
timeframe.
[46]
It is thus evident from the general scheme of s191(5) of LRA that
either of the two events: the issue of a certificate of
non-resolution by a commissioner of the CCMA or a bargaining council
or the expiry of 30 days from the date on which the CCMA or
bargaining council received the referral and the dispute remains
unresolved, entitles an employee to request arbitration or
adjudication.
Section 191 of the LRA is, however, silent, on the time
period within which the referral to arbitration is to be made from
the
date of the happening of either of the two events referred to in
subsection (5) of the LRA. Since s191 of the LRA does not prescribe
the specific time period within which an unfair dismissal or unfair
labour practice is to be referred to arbitration in terms of
subsection (5)(a) of the LRA, the dismissed employee or the employee
alleging an unfair labour practice must refer such dispute
to
arbitration within a reasonable period of time.
[24]
[47] What would constitute a reasonable period of time in respect of
a referral to arbitration, in terms of s 191(5)(a) of the
LRA may, to
my mind, be decided with reference to s191(11) of the LRA which
provides in relation to the referral of a dispute to
the Labour Court
for adjudication in terms of subsection (5)(b) of the LRA, that such
referral must be made within 90 days after
the commissioner of the
CCMA or a bargaining council has certified that the dispute remains
unresolved. Although not applicable
to the referral to
arbitration of an unfair dismissal or unfair labour practice dispute
under the LRA, due regard may also be had
to s 136(1)(a) and (b) of
the LRA, which provide that the CCMA may only appoint a commissioner
to arbitrate a dispute, which the
LRA requires to be resolved through
arbitration, if a commissioner has issued a certificate stating that
the dispute remains unresolved,
or within 90 days after the date on
which the certificate was issued, any party to the dispute has
requested that the dispute be
resolved. Both the CCMA under 136(1)(b)
of the LRA, and the Labour Court, under 191(11) of the LRA are,
however, afforded a discretion
to condone a party’s
non-observance of the 90 day time-frame, and allow a request for
arbitration or adjudication (as the
case may be) after the expiry of
the 90 day period.
[48]
In view of the legislative objective of expediting the resolution of
employment disputes through the effective and timeous
utilisation of
the dispute resolution machinery created by the LRA, I see no reason
why a different standard should be applied
to the referral of
disputes to arbitration in terms of s 191(5)(a) of the LRA.
[25]
Thus, a reasonable time within which a referral to arbitration in
terms of s191(5)(a) of the LRA should be made would be 90 days
from
the date of whichever of these two events occurs first: (a) the issue
of the certificate of non-resolution by the CCMA or
a bargaining
council; or (b) the lapse of the 30 day period contemplated in the
subsection. Accordingly, the appellant was required
to refer his
unfair dismissal dispute to the Bargaining Council for arbitration
within 90 days from the lapse of the 30 day period
contemplated in
s191(5) of the LRA.
[49]
The appellant
referred
his unfair dismissal dispute to the Bargaining Council for
conciliation on or about 10 February 2003.
In
terms of s191(5) of the LRA, he acquired the right to refer his
unfair dismissal dispute to arbitration on 12 March 2003 upon
the
expiry of the 30 day period contemplated in the subsection. The
appellant, however, elected not to refer the dispute to arbitration
at that stage, but rather to await the outcome of the conciliation
process (which ensued on 3
rd
April 2003) and the issue of a certificate of outcome following
thereupon. In the event, the certificate of non-resolution was
only
issued on 15 April 2004, a full year after the conciliation took
place, following which the appellant referred the matter
to
arbitration on 24 June 2004, being more than 13 months after he
acquired the right to refer the dispute to arbitration (on 12
March
2003), upon expiry of the 30 day period contemplated in the
subsection. Thus, in so far as he chose to await the outcome
of the
conciliation process and the issue of a certificate of outcome by the
Bargaining Council, before referring the dispute to
arbitration, the
appellant was obliged to seek condonation from the arbitrator for his
failure to refer the dispute to arbitration
within 90 days of the
date of expiry of 30 days from the date that the Bargaining Council
had received the referral.
[50] The appellant was, consequently, required to refer his unfair
dismissal dispute to arbitration within 90 days of 12 March
2003,
which was no later than 10 June 2003. The appellant, however, only
referred his unfair dismissal dispute to arbitration more
than 12
months after the referral was due on 24 June 2004, but failed to seek
condonation, from the Bargaining Council for this
inordinate delay.
The arbitrator, accordingly, erred in finding that the Bargaining
Council had jurisdiction to arbitrate the dispute.
I, accordingly,
consider the setting aside of the arbitration award by the Labour
Court to have been properly and correctly made,
on the grounds that
the referral to arbitration was lodged substantially more than 90
days after the lapse of 30 days from the
date on which the Bargaining
Council had received the referral for conciliation, and in the
absence of an order condoning the delay,
the Bargaining Council had
no jurisdiction to arbitrate the dispute.
[51] The finding of this Court on the jurisdictional issue is
dispositive of the issues on appeal and cross-appeal. Accordingly,
the Labour Court did not err in failing to decide the remaining
issues in the review. For the same reason, it is not necessary
for
this Court to determine the issues in the cross-appeal. In the
premises, I find that the arbitration award was correctly reviewed
and set aside by the Labour Court. The appeal, therefore, falls to be
dismissed.
[52] Since the appeal concerns issues concerning the interpretation
of key dispute resolution provisions of the LRA, and that it
is
manifestly in the public interest that interpretative clarity be
sought on appeal, the Municipality does not seek a costs order
against the appellant. I see no reason in law or equity to adopt a
contrary approach to the issue of costs.
[53] In the result, I make the following order:
‘
The appeal is dismissed with no order as to
costs.’
Kathree-Setiloane
AJA
I Agree
Waglay JP
I Agree
Dlodlo AJA
APPEARANCES:
FOR THE APPELLANT: FA Boda SC
Instructed by Cheadle Thompson & Haysom
FOR THE FIRST RESPONDENT: Adv MH Marcus
Lebea &
Associates
[1]
(2003) 24 ILJ
846 (LC).
[2]
(2000)
21 ILJ 2282 (LAC) at para 12.
[3]
SA
Rugby Players’ Association (SARPA) and Others v SA Rugby (Pty)
Ltd and Others; SA Rugby (Pty) Ltd v SARPU and Another
[2008] 9 BLLR 845 (LAC).
[4]
Section
191 of the LRA 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.
(b)
A referral in terms of paragraph (a) must be made within –
(i) 30
days of the date of a dismissal or, if it is a later date within 30
days of the employer making a final decision
to dismiss or
uphold the dismissal;
(ii) 90
days of the date of the act or omission which allegedly constitutes
the unfair labour practice or, if it is a later date,
within 90 days
of the date on which the employee became aware of the act or
occurrence.
(2) If
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.
(2A)
Subject to subsections (1) and (2), an employee whose contract of
employment is terminated by notice, may refer the dispute
to the
council or the Commission once the employee has received that
notice.
(3) The
employee must satisfy the council or the Commission that a copy of
the referral has been served on the employer.
(4) The
council or the Commission must attempt to resolve the dispute
through conciliation.
(5) If a
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
–
(a)
the
council or the Commission must arbitrate the dispute at the request
of the employee if –
(i)
the
employee has alleged that the reason for dismissal is related to the
employee’s conduct or capacity unless paragraph
(b)(ii)
applies;
(ii)
the
employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms of section
197 or
197A, unless the employee alleges that the contract of employment
was terminated for a reason contemplated in section
187;
(iii)
the
employee does not know the reason for the dismissal; or
(iv)
the
dispute concerns an unfair labour practice; or
(b)
the
employee may refer the dispute to the Labour Court for adjudication
if the employee has alleged that the reason for dismissal
is−
(i)
automatically
unfair;
(ii)
based
on the employer’s operational requirements ;
(iii)
the
employee’s participation in a strike that does not comply with
the provisions of Chapter IV; or
(iv)
because
the employee refused to join, was refused membership of or was
expelled from a trade union party to a closed shop agreement.
(5A)
Despite any other provisions in the Act, the council or Commission
must commence the arbitration immediately after certifying
that the
dispute remains unresolved if the dispute concerns –
(a)
the
dismissal of an employee for any reason relating to probation;
(b)
any
unfair labour practice relating to probation;
(c)
any
other dispute contemplated in subsection (5) (a) in respect of which
no party has objected to the matter being dealt with
in terms of
this subsection.
(6)
Despite subsection (5) (a) or (5A), the director must refer the
dispute to the Labour Court, if the director decides, on application
by any party to the dispute, that to be appropriate after
considering –
(a)
the reason for the dismissal;
(b)
whether there are questions of law raised by the dispute;
(c)
the complexity of the dispute;
(d)
whether there are conflicting arbitration awards that need to be
resolved;
(e)
the public interest.
(7) When
considering whether the dispute should be referred to the Labour
Court, the director must give the parties to the dispute
and the
commissioner who attempted to conciliate the dispute, an opportunity
to make representations.
(8) The
director must notify the parties of the decision and refer the
dispute –
(a)
to the Commission for arbitration; or
(b)
to the Labour Court for adjudication.
(9) The
director’s decision is final and binding.
(10) No
person may apply to any court of law to review the director’s
decision until the dispute has been arbitrated or
adjudicated, as
the case may be.
(11) (a)
The referral, in terms of subsection (5)(b), of a dispute to the
Labour Court for adjudication, must be made within 90
days after the
council or (as the case may be) the commission has certified that
the dispute remains unresolved.
(b)
However, the Labour Court may condone non-observance of that time
frame on good cause shown.
(12) 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 that employee only, the employee may
elect to refer the dispute either to arbitration
or to the Labour
Court.
(13) (a)
An employee may refer a dispute concerning an alleged unfair labour
practice to the Labour Court for adjudication if
the employee has
alleged that the employee has been subjected to an occupational
detriment by the employer in contravention of
section 3
of the
Protected Disclosures Act, 2000
, for having made a protected
disclosure defined in that Act.
(b)
A referral in terms of paragraph (a) is deemed to be made in terms
of subsection (5) (b).’
[5]
At
paras 11 and12.
[6]
Section
135 of the LRA provides:
‘
(1) When
a dispute has been referred to the Commission, the Commission must
appoint a commissioner to attempt to resolve it through
conciliation.
(2)
The
appointed commissioner must attempt to resolve the dispute through
conciliation within 30 days of the date the Commission
received the
referral: However the parties may agree to extend the 30 day period.
(3)
The
commissioner must determine a process to attempt to resolve the
dispute, which may include –
(a)
mediating
the dispute;
(b)
conducting
a fact-finding exercise; and
(c)
making
a recommendation to the parties, which may be in the form of an
advisory arbitration award.
(3A) If a single commissioner has been appointed, in terms of
subsection (1), in respect of more than one dispute involving the
same parties, that commissioner may consolidate the conciliation
proceedings so that all the disputes concerned may be dealt
with in
the same proceedings.
[Sub-s.(3A)
inserted by s.8(a) of Act 127 of 1998]
(4)
…
[Sub-s. (4)
substituted by s.8(b) of Act 127 of 1998 and deleted by s. 26 of Act
12 of 2002]
(5)
When
conciliation has failed, or at the end of the 30 –day period
or any further period agreed between the parties−
(a)
the
commissioner must issue a certificate stating whether or not the
dispute has been resolved;
(b)
the
Commission must serve a copy of the certificate on each party to the
dispute or the person who represented a party in the
conciliation
proceedings;
(c)
the
commissioner must file the original of that certificate with the
Commission.
[Sub-s. (5) amended by
s. 36 (b) of Act 42 of 1996.]
(6)
(a)
If a dispute about a matter of mutual interest has been referred to
the Commission and the parties to the dispute are
engaged in an
essential service then, despite subsection (1), the parties may
consent within seven days of the date the Commission
received the
referral−
(i)
to
the appointment of a specific commissioner by the Commission to
attempt to resolve the dispute through conciliation; and
(ii)
to
that commissioner’s terms of reference.
(b) If the
parties do not consent to either of those matters within the
seven-day period, the Commission must as soon
as possible−
(i)
appoint a commissioner to attempt to resolve the dispute; and
(ii)
determine the commissioner’s terms of reference.’
[7]
The
provisions of sections 133 to 150, which are found in Chapter VII,
Part C of the LRA apply to the resolution of disputes under
the
auspices of the CCMA. They also apply to accredited bargaining
councils which have received accreditation from the
Governing Body
of the CCMA pursuant to s 127(6) of the LRA which provides:
‘
The
terms of accreditation must state the extent to which the provisions
of each section in Part C of this Chapter [reference
to Chapter VII]
apply to the accredited council or accredited agency.’
[8]
Section
136(1) of the LRA provides: ‘If this Act requires a dispute to
be resolved through arbitration, the Commission must
appoint a
commissioner to arbitrate that dispute if−
(a)
a
commissioner has issued a certificate stating that the dispute
remains unresolved; and
(b)
within
90 days after the date on which that certificate was issued; any
party to the dispute has requested that the dispute be
resolved
through arbitration. However, the Commission, on good cause shown,
may condone a party’s non-observance of the
time-frame and
allow a request for arbitration filed by the party after the expiry
of the 90-day period.’
[9]
[2000]
1 BLLR 20 (LAC).
[10]
[2008]
4 BLLR 299 (LAC).
[11]
At paras 66
and 67.
[12]
At paras
11-13.
[13]
[
2011]
7 BLLR 663
LC
.
[14]
At para 15.
[15]
Gcaba v Minister for
Safety and Security and others
2010 (1) SA 238
(CC) at para 1.
[16]
NUM v Hernic
Exploration (Pty) Ltd
[2001] 2 BLLR 209
(LC) at para 11.
[17]
Section 133 of the LRA provides:
‘(1) The
Commission must appoint a commissioner to attempt to resolve through
conciliation –
(a)
any dispute referred to
it in terms of section 134; and
(b)
any dispute that has been
referred to it in terms of this Act.
(2) If a dispute
remains unresolved after conciliation, the Commission must arbitrate
the dispute if –
(a) this Act requires the dispute
to be arbitrated and any party to the dispute has requested that the
dispute be resolved through
arbitration; or
(b) all the parties to the dispute
in respect of which the Labour Court has jurisdiction consent in
writing to arbitration under
the auspices of the Commission.’
[18]
Section 134 of the LRA provides:
‘(1) Any party
to a
dispute
about a matter of mutual interest may refer the
dispute
in writing to the Commission, if the parties to the
dispute
are−
(a)
on the one side−
(i)
one or more trade unions
(ii)
one or more employees; or
(iii)
one or more trade unions
and one or more employees; and
(b)
on the other side
(i) one or more
employers’ organizations
;
(
ii)
one or more employers
;
or
(iii)
one or more employers’
organizations and one or more employers.
(2)The party who
refers the
dispute
to the Commission must satisfy it that a
copy of the referral has been
served
on all the other parties
to the
dispute.’
[19]
See s135(5) of the LRA.
[20]
Driveline Technologies
at paras 66 and 67 and
Ramabulana
at paras 11-13.
[21]
Although
the actual convening of a conciliation is not required under s
191(5) for the dispute to be referred to arbitration within
the 30
day period, contemplated in the subsection, the dismissed employee
or employee alleging an unfair labour practice is obliged
in terms
of s 191(1)(a) and (b) of the LRA to refer the matter to a
bargaining council with jurisdiction, or to the CCMA, where
no
bargaining council has jurisdiction, for conciliation.
[22]
Fidelity Guards
at paras 11 and 12.
[23]
In
paragraphs 9 and 10 of the Judgment, the Court made specific
reference to the relevance of sections 135(5) and 136(1)(a) and
(b)
of the LRA to the referral, in terms of s191(5) of the LRA, of the
unfair dismissal dispute in question to conciliation and
arbitration.
[24]
Wolgroeiers
Afslaers (Edms) Bpk v Munisipaliteit van Kaapstad
1978
(1) SA 13
(A) at 398 A-B;
JDG
Trading (Pty) Ltd t/a Bradlow’s Furnishers v Lake NO and
others
(2001) 22 ILJ 641 (LAC);
Vorster
v Rednave Enterprises CC t/a Cash Converters Queenswood
(2009) 30 ILJ 407 (LC) at 411A-B.
[25]
Sappi
Timber Industries (Pty) Ltd t/a Boskor Sawmill v Commission for
Conciliation, Mediation and Arbitration and others
(2003) 24 ILJ 846 (LC).