About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 48
|
|
Motsomotso v Mogale City Local Municipality (JA44/2015) [2016] ZALAC 48; [2016] 11 BLLR 1146 (LAC); (2016) 37 ILJ 2803 (LAC) (21 July 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no. JA 44/2015
In the matter between:
CYNTHIA THERESIA
MOTSOMOTSO Appellant
and
MOGALE CITY LOCAL
MUNICIPALITY
Respondent
Heard
:
19 May
2016
Delivered
:
21
July 2016
Summary:
Unfair discrimination dispute – Commission for Conciliation,
Mediation and Arbitration (CCMA) the only dispute resolution
forum
clothed with the power to conciliate unfair discrimination dispute in
terms of section 10 of the Employment Equity Act –
in
casu
unfair labour practice dispute previously conciliated by a bargaining
council could not be construed as conciliation of the unfair
discrimination dispute. The Bargaining council does not having
jurisdiction to conciliate such dispute. Labour Court correct in
holding that it lacks jurisdiction to adjudicate an unfair
discrimination dispute which had not been referred for conciliation
to the CCMA. Appeal dismissed.
Coram: CJ Musi,
Sutherland JJA
et
Murphy AJA
JUDGMENT
CJ
MUSI JA
[1] This is an appeal
against the judgment of the Labour Court (Tlhotlhalemaje J) wherein,
it found that it lacked jurisdiction
to adjudicate an unfair
discrimination dispute which was not referred to the Commission for
Conciliation, Mediation and Arbitration
(CCMA) for conciliation. The
appeal is with the leave of this Court.
[2] The appellant is
in the employ of the respondent since 1984 as a Community Liaison
Officer at post level 10. She worked
with five male colleagues who
were on post level 14. On 1 September 2000, all five males were
promoted to post level 8. According
to the appellant, this was done
without any advertisement for the posts or applications by the five
males. The respondent alleged
that all the males applied for and were
appointed into vacant post level 8 positions.
[3] The appellant
referred an unfair labour practice dispute to the South African Local
Government Bargaining Council (SALGBC).
Conciliation did not yield a
positive result and she referred the matter to arbitration. The
arbitrator rendered an award in her
favour and
inter alia
ordered the respondent to promote her to post level 8.
[4] The respondent,
being dissatisfied with the award, launched a review application in
the Labour Court. The Labour Court (Basson
J) found that it was not
entirely clear whether the appellant based her case on
discrimination. The Labour Court however found
that on a conspectus
of the material before the arbitrator, the latter should have found
that the dispute was a discrimination
dispute that should have been
prosecuted in terms of the Employment Equity Act (EEA).
[1]
It set aside the arbitration award.
[5] Pursuant to the
judgment of the Labour Court, the appellant instituted an unfair
discrimination claim in the Labour Court.
She alleged that the
respondent unfairly discriminated against her because she was a
female or because she had been part of the
employees of the
respondent who were inherited from the apartheid era.
[6] The respondent
defended the claim and
inter alia
took the point that the
appellant did not refer the dispute for conciliation to the CCMA
prior to instituting her unfair discrimination
claim.
[7] The court
a quo
(Tlhotlhalemaje J) found that “in the absence of the applicant
first having referred the dispute to conciliation, the court
lacks
jurisdiction to determine her alleged unfair discrimination claim”.
The appellant unsuccessfully sought leave to appeal
Tlhotlhalemaje
J’s judgment. A petition to this Court was successful.
[8] Mr Shakoane, who
appeared on behalf of the appellant, argued that the court
a quo
erred in holding that it had no jurisdiction to adjudicate the
dispute, despite the valid certificate of outcome issued by the
SALGBC. He submitted that, that certificate of outcome was never set
aside on review and is therefore still valid. He submitted
that the
certificate of outcome issued by the SALGBC was sufficient to vest
jurisdiction in the Labour court or CCMA to adjudicate
or arbitrate
the matter. He further submitted that the mere fact that the
appellant erroneously referred the dispute to the SALGBC
does not
deprive the Labour Court of jurisdiction to determine the dispute in
accordance with the provisions of sections 10(6)
and 49 of the EEA.
He contended that the court
a quo’
s judgment unjustly
allows form to trump substance.
[9] Ms Ramela, on
behalf of the respondent, submitted that the court
a quo
was
correct in holding that it did not have jurisdiction to adjudicate
the dispute.
[10] In terms of
section 185(b) of the Labour Relations Act 66 of 1995 (the Act),
every employee has the right not to be subjected
to unfair labour
practice. Unfair labour practice is defined in section 186(2)(a) as
any unfair act or omission that arises between
the employer and the
employee involving unfair conduct by the employer relating to the
promotion, demotion, probation (excluding
disputes about dismissals
for a reason relating to probation) or training of an employee or
relating to the provision of a benefit
to an employee.
[11] An employee may
refer a dispute about an unfair labour practice in writing, within 90
days of the act or within 90 days
of the date on which the employee
becomes aware of the act or occurrence, to a council or the CCMA.
[2]
[12] A dismissal or
dispute about an unfair labour practice may therefore be referred to
a bargaining council. A bargaining council’s
power to
conciliate or arbitrate a dispute is derived from the terms of its
accreditation.
[3]
The period for
which a bargaining council is accredited and the terms of
accreditation must be set out in its certificate of accreditation.
[4]
Therefore, if a bargaining council is not accredited to perform a
particular function it may not perform such function.
[13] In terms of
section 10 of the EEA, any party to a dispute concerning unfair
discrimination may refer such dispute in writing
to the CCMA within
six months after the act or omission that allegedly constitutes
unfair discrimination. The CCMA must attempt
to resolve the dispute
through conciliation and if it remains unresolved after conciliation
any party may refer it to the Labour
Court for adjudication or all
the parties to the dispute may consent to arbitration of the
dispute.
[5]
In terms of the EEA,
“CCMA” means the Commission for Conciliation Mediation
and Arbitration established by
section 112
of the
Labour Relations
Act.
[6
]
[14] CCMA is clearly
defined in the EEA and it does not mean the CCMA and or an accredited
council or agency. It means the juristic
person established in terms
of section 112 of the Act, nothing more nothing less.
[15] In terms of
section 135 of the Act, the CCMA must attempt to resolve a dispute
referred to it within 30 days or such extended
period as the parties
agreed to. When conciliation has failed or at the end of the 30 day
or agreed period, the commissioner must
issue a certificate stating
whether the dispute has been resolved.
[16] An unfair
discrimination dispute must therefore be referred to the CCMA for
resolution in terms of section 135 failing which,
it must be referred
to the Labour Court unless all the parties agree that it may be
referred to arbitration.
[17] In terms of
section 157(4) of the Act, the Labour Court may refuse to determine a
dispute if the court is not satisfied that
an attempt has been made
to resolve the dispute through conciliation.
[7]
[18] The initial dispute
that was conciliated, referred to arbitration and taken on review was
an unfair labour practice dispute.
Basson J found that the dispute
was actually an unfair discrimination dispute and was
mischaracterised as an unfair labour practice
dispute and set aside
the arbitration award.
[19] When the
appellant decided to bring an unfair discrimination claim, it was a
different dispute that had to be conciliated
before the Labour Court
could adjudicate it. The unfair discrimination dispute was never
referred to conciliation. There was therefore
no attempt made to
resolve the unfair discrimination dispute through conciliation before
it was referred to the Labour Court.
[20] The bargaining
council does not have jurisdiction to conciliate any dispute under
section 10 of the EEA. The bargaining council
in
casu
did not
have such dispute before it and it also did not purport to conciliate
an unfair discrimination dispute. The only dispute
that was referred
to the bargaining council was an unfair labour practice dispute.
Therefore, even if Mr Shakoane’s argument
is correct that the
certificate remained valid, it would only be valid in respect of the
unfair labour practice dispute.
[21] The EEA is clear,
only the CCMA may attempt to resolve an unfair discrimination dispute
through conciliation. A bargaining
council has no such power. The
governing body of the CCMA also does not have the power to accredit a
bargaining council to conciliate
unfair discrimination disputes. Mr
Shakoane’s submission relating to the provisions of sections
10(6) and 49 of the EEA is
also of no assistance to the appellant.
Section 10(6) only states that if a dispute referred to the CCMA
remains unresolved after
conciliation, a party may refer the dispute
to the Labour Court for adjudication or all the parties to the
dispute may consent
to arbitration of the dispute. Section 49 on the
other hand only states that the Labour Court has exclusive
jurisdiction to determine
any dispute about the interpretation or
application of the EEA.
[22] The legislature
clearly made a policy choice that unfair discrimination disputes be
conciliated by the CCMA. This is probably
because the CCMA is the
specialist body entrusted with the task of conciliating all labour
disputes. It has the necessary human
resources i.e. a pool of
commissioners and senior commissioners who are experienced and well
versed in these issues. Unfair discrimination
disputes are in most
cases very complex and intricate and therefore require specialist
commissioners with the necessary skills
and experience to adjudicate
them. In my judgment, this Court should not interfere, for reasons of
expedience or sympathy, with
that policy choice. In my view, the
appeal ought to be dismissed.
[23] The appellant has
over the years tried everything, at great expense, to prosecute this
dispute. Unfortunately the merits
of the dispute were never
adjudicated in a court of law. I do not think that the law and equity
requires that a costs order should
be made in this matter.
[23] I accordingly
dismiss the appeal with no order as to costs.
___________
C J Musi JA
Sutherland JA and Murphy
AJA agree with CJ Musi JA.
APPEARANCES:
FOR THE APPELLANT: Adv G
Shakoane SC Assisted by Adv S Mathabathe
Instructed
by MM Bakloyi Attorneys Johannesburg
FOR
THE RESPONDENT: Adv MP Ramela
Instructed
by Mapulana Maponya Inc. Pretoria
Act 55 of 1998.
[2]
(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 practice may refer the dispute in
writing within 30 days 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 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.
[3]
See section 127 of the Act.
[4]
Section 127(5) (a)(ii) of the Act.
[5]
See section 10 of the EEA.
[6]
See section 1 of the EEA. Section 112
of the Act states that the Commission for Conciliation, Mediation
and Arbitration is hereby
established as a juristic person.
[7]
(4)(a) The Labour
Court may refuse to
determine any dispute, other than an appeal or review before the
Court, if the Court is not satisfied that
an attempt has been made
to resolve the dispute through conciliation.
(b) A certificate
issued by a commissioner or a council stating that a dispute remains
unresolved is sufficient proof that an
attempt has been made to
resolve that dispute through conciliation.