About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2002
>>
[2002] ZALCJHB 12
|
|
Virgin Active South Africa (Pty) Ltd v Mathole NO and Others (JR945/01) [2002] ZALCJHB 12 (11 April 2002)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
CASE N0 JR 945/01
In
the matter between:
VIRGIN
ACTIVE SOUTH AFRICA (PROPRIETARY) LTD
Applicant
and
L
E MATHOLE
N.O. First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
MOLLY
REDDY
Third
Respondent
JUDGMENT
JAMMY
AJ
1.
In this unopposed application, the
Applicant seeks an order in the following terms:
“
1.
Reviewing and setting aside the jurisdictional ruling made by the
First
Respondent in terms of
Section 158(1)(g)
of the
Labour
Relations Act 66 of 1995
as amended on 6 June 2001.
“
2.
Replacing the jurisdictional ruling of the First Respondent with an
order
stating that the CCMA does not have jurisdiction to entertain
Reddy’s dispute and that Reddy was not an employee of the
Applicant.”
2.
The background to this matter is the
referral by the Third Respondent to the Second Respondent for
conciliation in terms of Section
191 of the Labour Relations Act 1995
(“the Act”), of a dispute arising from what is alleged to
have been her unfair
dismissal by the Applicant on 8 February
2001.
3.
The First Respondent was the Commissioner
designated by the Second Respondent to conduct the conciliation
process. At the
outset and as recorded by him in his
“Jurisdictional Ruling Reasons” dated 6 June 2001 –
“
The
Respondent, Virgin Active, raised a technical point which needs
determination before the CCMA can assume jurisdiction”.
The
basis of that technicality, namely that, for the reasons stated, the
Third Respondent was not an employee of the Applicant,
was then
briefly outlined and examined by the First Respondent who, having
done so, made the following order:
“
(a)
The CCMA has jurisdiction and the Applicant is an employee
to the new employer, Virgin Active
by virtue of
Section 197
of the
Labour Relations(
sic).
(b)
No order as to costs.”
4.
Counsel for the Applicant, Mr F G
Barrie, submitted in his argument in support of this application that
the dispute itself
is not a matter for determination by this Court,
the sole and essential issue being whether the relationship of
employer/employee,
as an objective fact, is a jurisdictional fact
that has to be established before a Commissioner of the Second
Respondent in conciliation
proceedings in terms of
Section 191(4)
of
the Act. He referred to a number of decisions in which the issue was
either touched upon or substantively dealt with by this
Court.
5.
The conclusion reached by Brassey A J in –
Richards Bay Iron &
Titanium (Pty) Ltd t/a Richards Bay Minerals and Another v Jones and
Another (1998) 19 ILJ 627 (LC)
that
whether or not a relationship of employer/employee exists was a
matter for the CCMA to decide, seems to me to be not open to
debate
in the context of the relevant provisions of the Act. At page 629 of
the report, the learned Judge, with reference to those
provisions,
says this:
“
Implicit
in these provisions, it seems to me, is the proposition that a
dispute cannot be referred to the CCMA unless the parties
to it share
a mutual interest and, where they are individuals, that this interest
takes the form of a bond of employment between
them”.
6.
In the case in question the alleged
employer approached the Labour Court to interdict conciliation and
arbitration proceedings in
the CCMA on the basis that it had not been
the Applicant’s employer. The application was dismissed
on the basis that
it was premature, Brassey A J finding that the CCMA
had the authority to decide the issue and that the application to the
Labour
Court, before the CCMA had been called upon to decide that
question, was premature.
7.
The Court in that matter however, did not
specifically address the situation arising where the issue in dispute
is not one capable
of resolution by arbitration under the auspices of
the CCMA but is one which, where conciliation fails, must, as the law
stands
at present, be determined by the Labour Court, as for example
where termination of employment is alleged to have been automatically
unfair or unfair in the context of the operational requirements of
the employer.
8.
If the principle enunciated in Richards Bay
Minerals is to be accepted as one of general application, - that any
application to
the Labour Court arising from a dispute as to whether
or not an employment relationship exists between the contesting
parties,
will be premature if that specific issue has not first been
referred to the CCMA for determination – then of necessity the
CCMA, where the dispute is sourced either in the provisions of
Section 187 or Section 189 of the Act, must
ipso
facto
be vested with the power to
determine it at the conciliation stage. What will thereafter be
open to the parties or either
of them, in a proper case, will be the
exercise of their right to seek a review by the Labour Court of any
such ruling.
9.
If I am correct in that analysis therefore,
there can to my mind be no validity in an argument that such
authority exists selectively
and can be exercised only in the narrow
categories of dispute (Sections 187 and 189) to which I have
referred. Either the
CCMA is entitled generally to determine
the jurisdictional fact to which I have referred at the conciliation
stage, or it is not.
There can be no substance to any argument
(hypothetical in this case) to the effect that it may do so in
certain cases but not
in others.
10.
The broad issue was alluded to but not
comprehensively determined in –
Flexware (Pty) Ltd v
Commission for Conciliation Mediation and Arbitration and Others
(1998) 19 ILJ 1149 (LC)
in which Zondo J (as he
then was), in an application brought
after
the conciliation
proceedings had been finalised and after the Commissioner in ensuing
arbitration proceedings had issued a ruling
that an employer/
employee relationship between the parties existed, suggested that
enquiry into the existence of such a relationship
was something that
the CCMA had to undertake when it conducted “conciliations and
arbitrations”. The necessary
implication from that
conclusion is that the CCMA would not have jurisdiction to conciliate
a dispute if the parties before the
Commissioner were not in an
employment relationship.
11.
A contrary view however was expressed by
the Labour Court in –
Dempster v Kahn N O and
Others (1998) 19 ILJ 1475
in
which Revelas J set aside a jurisdictional ruling made by a CCMA
Commissioner in conciliation proceedings to the effect that
the
Applicant was not an employee for the purposes of the Act. A
Commissioner charged with conciliation proceedings, the
learned Judge
held, did not have the authority or power to determine whether the
requisite relationship existed. That was
an issue to be dealt
with in arbitration or adjudication proceedings as the case may be.
That the parties to the dispute
had to have been in an
employer/employee relationship was not a jurisdictional fact
requisite to conciliation proceedings in terms
of
Section 191(4)
of
the Act. That section requires an attempt to resolve the
dispute through mediation and that is what the Commissioner is
bound
to do without further enquiry.
12.
For the reasons which I have stated, I am
respectfully unable to agree with that conclusion.
Section 191
of the Act prescribes a conciliation procedure relating to “a
dispute about the fairness of a dismissal” and it is
“the
dismissed employee” who may refer such dispute to the
Commission.
A fortiori
,
a person who is not an employee may not do so. His or her
status as such, if challenged at the conciliation stage therefore,
must logically and practicably be thereupon determined. To hold
otherwise would, in my opinion, serve only to undermine a
legislated
procedure designed to facilitate and expedite the resolution of
employment-related disputes. The review jurisdiction
of the
Labour Court and indeed, to give that term a wider meaning, of an
arbitrator where that procedure is indicated, serves adequately
as a
refuge available to an aggrieved employer able to establish a basis
to invoke it.
13.
For these reasons I have concluded that no
basis exists for the interference by this Court with the ruling of
the First Respondent
in question and that the matter must take its
course.
The
application is accordingly dismissed.
___________________________
B
M JAMMY
Acting
Judge of the Labour Court
11 April 2002
Representation:
For
the Applicant:
Advocate
F G Barrie instructed by Sampson Okes Higgins Inc.
No appearance for
Respondents