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[2008] ZALCJHB 59
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Telesure Investment Holdings (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR106/07) [2008] ZALCJHB 59 (21 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
Case
no: JR 106/07
In
the matter between:
TELESURE INVESTMENT
HOLDINGS
(PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
HONNORAT,
E N.O.
Second
Respondent
FENTON
SHANE SHAND
Third
Respondent
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which
the applicant sought an order reviewing and setting aside the award
issued by the second
respondent under case number GAJB 19642-06 dated
14 December 2006. Third respondent was employed as a creditor’s
supervisor
and his core function was to service the account of the
newly established subsidiary company of the applicant.
Background
Facts
[2]
At the beginning of 2005 and in
anticipation that the subsidiary company had the potential to grow
the applicant made provision
for the employment of staff additional
to the four who were reporting to the third respondent.
[3]
The need to streamline the department
serving the servicing unit became apparent to the applicant towards
the end of the financial
year 2005.This need necessitated the
restructuring which would involve the taking over of the functions
that were exclusively done
by the supporting team of Unity and to be
devolved to the other employees within Telesure group.
[4]
The applicant contended that the
restructuring process included consultation with all affected staff
members including the third
respondent. The consultation according to
the applicant was conducted by the General Manager Finance and this
was done during the
later part of June 2006, and proceeding into July
of the same year. The rational for the restructuring and the proposed
dismissal
was explained to those employees who were to be affected.
[5]
According to the applicant, positions which
were vacant were advertised during July 2006, but the third
respondent never applied.
When alternative positions were identified
and offered to the affected employees the third respondent was only
interested in higher
positions according to the applicant.
The
grounds for review
[6]
The applicant challenged the arbitrator’s
award on the basis that the second respondent had no jurisdiction to
consider the
matter as the dispute fell within the ambit of the
provisions of section 191(12) of the LRA, because more than one
employee was
affected by the restructuring.
[7]
The third respondent argued that whilst he
did receive the letter wherein the applicant indicated the intention
to raise the point
in limine
relating to section 191(12) of the LRA, he never did. It would indeed
appear from the transcript of the record of the proceedings
that the
applicant did not raise the point
in
limine.
[8]
The case of the applicant is that when the
point
in limine
was raised the Commissioner indicated that “
there
was no point in limine to be raise, let us proceed”
.
This is however not reflected by the record.
9]
It is however apparent from the record that
the applicant had indicated prior to the hearing that it intended
raising the point
in limine
at the hearing. This intention was indicated through a letter
addressed to third respondent dated 04 December 2006. The relevant
part of the letter reads as follows:
“
In
anticipation of the matter currently set down for 14
th
December 2006 at 09h00 room 420 Anderson Street, I wish to advise you
that I will be raising the following point in limine at the
arbitration proceedings.
I
confirm that in terms of
Section 191(12)
of the
Labour Relations Act,
66 1995
, as amended, that is a dispute about the fairness od a
dismissal, the dismissed employee (being yourself) may refer the
dispute
in writing to the CCMA or any tribunal which has jurisdiction
in terms of
Section 191.
Sub-section
12 of this provision, however, makes a distinction where the employee
may elect to refer the dispute either to arbitration
or to the Labour
Court when employees are dismissed by reason of the employer’s
operational requirements following a consultation
procedure in terms
of
Section 189
that applied to that employee only.
I,
however, confirm that the matter referred by you does not fall within
the ambit of the provisions of
Section 191(12)
as the retrenchment
process applied to various other employees as well. As such, you were
required to refer your dispute to the
Labour Court in terms of the
provisions of
Section 191(50(b)
(ii)).
It
will thus be argued that the CCMA lacks the requisite jurisdiction to
entertain your matter and that the matter should be dismissed
on that
basis alone.
I
trust that you find the above in order and look forward to hear from
you in this regard.”
A copy
of this letter was forwarded to the CCMA under the cover of the
letter received by the office of the Convening Senior Commissioner
on
06 December 2006.
[10]
It has not been disputed that the
Commissioner had sight of the applicant’s letter regarding the
issue of jurisdiction of
the CCMA.
[11]
The applicant further contended that the
issue concerning jurisdiction arose during the opening remark by the
applicant’s
representative, when he indicated, “
employees
were consulted.”
It is apparent
that at that point when the representative made the submission about
consulting with employees, the Commissioner
intervened and said:
“
What
alternatives were offered to the applicant because
I
am not interested in the others, I am interested in the applicant
.”
(my emphasis)
[12]
The objective facts before the Commissioner
were that in the first place the issue of jurisdiction was raised in
the letter which
was addressed to the third respondent and
subsequently forwarded to the CCMA. The Commissioner committed a
gross irregularity by
failing to apply his mind to the issue raised
in the letter which pertinently dealt with the issue of jurisdiction.
Had the Commissioner
applied his mind to the issues raised in the
letter, he may have found that the CCMA did not have jurisdiction to
entertain the
dispute. For this reason alone the award stands to be
reviewed.
[13]
In the second instance the Commissioner
failed in his duty and denied the applicant a fair hearing when he
intervened and told the
applicant’s representative that he was
not interested in him making a submission about the consultations
that the applicant
had with the other employees.
[14]
If the Commissioner had been patient and
afforded the applicant a fair hearing, he would have realised that
reference to consultation
with other employees may have meant that
the employee was not the only one retrenched and therefore the
provisions of
section 191(12)
was applicable.
[15]
In terms of
rule 24
of the CCMA a
Commissioner has a duty to inquire into jurisdiction at any point
during the proceedings. The investigation that
the Commissioner was
required to conduct which, he failed to do, was whether other
employees were dismissed arising from the consultation
during the
same period.
[16]
In my view the Commissioner committed a
gross irregularity by failing to enquire into whether he had
jurisdiction to entertain the
dispute.
[17]
The dictates of law and fairness do not
require costs to be awarded.
Order
[17]
In the result I make the following order:
1.
The
award of the second respondent is reviewed and set aside.
2.
The matter is remitted back to the first
respondent for consideration by another Commissioner other than the
second respondent.
3.
There is no order as to costs.
____________________
MOLAHLEHI J
Date of
Hearing:
27 November 2007
Date of
Judgement:
21
February 2008
APPEARANCES:
For
the Applicant: Mr W S S Badenhorst from Leppan Beech Inc.
For
the Respondent: Mr R Maddern from Wright Rose-innes Inc.