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[2007] ZALCJHB 20
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Society for Family Health v Maotlhodi and Others (JR1128/03) [2007] ZALCJHB 20 (5 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO:JR 1128/ 03
In
the matter between
:
SOCIETY
FOR FAMILY
HEALTH APPLICANT
JERRY
MAOTLHODI
1
ST
RESPONDENT
THE
COMMISSSION FOR CONCILIATION
MEDIATION
AND
ARBITRATION 2
ND
RESPONDENT
MATEE,
KGANYETSI 3
RD
RESPONDENT
JUDGMENT
Justice
Ngcamu AJ
1.
Th
is
is an application to review and to set aside the arbitration award
issued by the third respondent in which he found that the
dismissal
of the first respondent was procedurally and substantively unfair.
The commissioner awarded compensation amounting to
R118800-00. The
applicant seeks to have this award reviewed and set aside.
2.
The first respondent is opposing the application.
3.
The first respondent was employed by the applicant as a Behavioural
Change Communications Co-ordinator on a project conducted
by the
applicant in the Eastern Cape. During the interview the first
respondent was informed that he would be relocated to Gauteng
at the
end of the term of the contract that was to be performed in the
Eastern Cape.
4.
The period of the contract in the Eastern Cape lasted for 18 months.
Towards the end of the 18 months period, the first respondent
and one
Oupa Mapheele received notice advising them of the termination of the
project. They were invited for consultation and eventually
retrenched. The first respondent referred a dispute to the second
respondent. The conciliation failed to resolve the dispute. The
dispute was referred for arbitration before the third respondent.
5.
At the arbitration hearing, the applicant was represented by Mr.
Bekker. The commissioner was not satisfied that Mr. Bekker was
an
employee of the applicant and required Mr. Bekker to prove his
status. The matter was postponed for Mr. Bekker to submit
documentation
to prove his status. Mr. Bekker later claimed that
documents proving his status were personally delivered to the
commissioner but
did not produce any copies or bring the person who
submitted them. This resulted in an altercation between the
commissioner and
Mr. Bekker.
6.
Mr. Bekker applied for the commissioner to recuse himself. The
application was refused by the commissioner. As Mr. Bekker could
not
prove his status, the commissioner ordered Mr. Bekker to leave the
hearing. A replacement representative took over and the
matter
proceeded which resulted in the issue of the award that is now being
challenged on review.
7.
The award is being challenged on five grounds. The grounds of review
are that :
(a)
The commissioner misdirected himself and
exceeded his powers by adjudicating a retrenchment dispute when he
was not empowered to
do so.
(b)
The commissioner was bias.
(c)
The commissioner committed an irregularity
in failing to recuse himself and failing to consider an application
for his recusal.
(d)
The commissioner committed an irregularity
in refusing the applicant’s chosen representative and employee
to act on its behalf
in the arbitration.
(e)
The finding on procedural and substantive
unfairness had no merits.
8.
The first ground of review is that the dispute that was arbitrated
concerned a retrenchment. It was submitted that at the time
of the
arbitration hearing, a dispute relating to the retrenchment had to be
referred to the Labour Court. On the other hand, it
was submitted on
behalf of the first respondent that the dispute fell under
Section
191(5)
(a) (iv) of the
Labour Relations Act 66 of 1995
.
9.
Section 191(5)
(a) (iv) provides that the council or the commissioner
must arbitrate the dispute at the request of the employee if the
dispute
concerns an unfair labour practice.
Section 191(5)(a)(iv)
was
added by Secttion 46 (f) of Act 12 of 2002. The arbitration hearing
took place in July 2002 before the amendment came into
effect.
10.
The dispute that was arbitrated was not an unfair labour practice but
an unfair dismissal in terms of
Section 189
of the
Labour Relations
Act. In
the request for arbitration form, the first respondent
recorded the issue in dispute as “Unfair dismissal according to
Section 186.
”
He
went further to state that:
“
I
reasonably expected previous employer to renew my contract of
employment on the same terms. I was relocated to the Eastern Cape
and
after 19 months I was retrenched.”
11.
The first respondent testified that he was employed on permanent
basis and that for the first 18 months he was placed in the
Eastern
Cape. The first respondent’s counsel also submitted that the
respondent was not employed on a fixed term contract.
This matter was
treated as an unfair dismissal and not as an unfair labour practice.
This is also clear from the commissioner’s
analysis of the
evidence. At page 5 of the award, the commissioner reasoned that:
“
It
became clear during my analysis of the evidence that the respondent
had failed to prove that the dismissal of the applicant was
for a
fair reason and that he did not follow and or exhaust all necessary
procedure in terms of
Section 189
of the
Labour Relations Act before
terminating the applicant.”
12.
The argument by the first respondent’s counsel that the dispute
concerned the unfair labour practice has no merit and
it is rejected.
13.
The dispute was arbitrated as a retrenchment as I have indicated.
Section 191
(5) (a) sets out the disputes that must be arbitrated.
These are disputes relating to the dismissal for reason of the
employee’s
conduct or capacity, constructive dismissal, where
the employee is provided with substantially less favourable
conditions after
a transfer in terms of
Section 197
or
197
A, where
the reasons for dismissal is unknown and unfair labour practice.
14.
The retrenchment is dealt with in
Section 191(5)
(b). This Section
deals with the disputes to be dealt with by the Labour Court.
Section
191(5)(b)(i
i) provides that:
“
The
employee may refer the dispute to the labour court for adjudication
if the employee has alleged that the reason for dismissal
is based on
the employer’s operational requirements.”
15.
The parties did not agree to the arbitration of the dispute relating
to retrenchment. Mr. Bekker who initially represented the
applicant
raised the issue of the CCMA’s jurisdiction but the
commissioner disagreed with his submission.
16.
Section 191(5A)(12)
provides that:
“
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.”
17.
Section 191(5A)
(12) was added by
Section 46
(i) of Act 12 of 2002.
At the time the dispute was referred and the
arbitration commenced, the CCMA had no jurisdiction.
The employee
could not refer the dispute for arbitration. Accordingly, the first
respondent had no choice but to refer the dispute
to the Labour
Court.
18.
In the circumstances, I agree with the applicant’s counsel that
the CCMA had no jurisdiction to arbitrate the dispute.
In the result
the applicant’s first ground of review should succeed. In the
light of this finding there is no need for me
to deal with further
grounds raised by the applicant.
19.I
see no reason why the costs should not follow the results. In the
circumstances the following order is made:
(a)
The arbitration award issued by the third
respondent is reviewed and set aside.
(b)
The first respondent is ordered to pay the
costs.
_______________
Ngcamu
AJ
Date
of hearing:
26 October 2006.
Date
of Judgment:
05 February 2007
For
the applicant:
For
the first respondent:
Adv. M.H. Mokale.