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[2008] ZALCJHB 34
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Lumka And Associates (Pty) Ltd v Mancotywa and Others (JR944/07) [2008] ZALCJHB 34 (19 August 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
NOT REPORTABLE
CASE
NO. JR 944/07
In
the matter between:
LUMKA
AND ASSOCIATES (PTY) LTD
Applicant
and
MS
NTOMBEKHAYA MANCOTYWA
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION
Second
Respondent
L
MAQOMA AND TWO OTHERS
Third
to
Fifth Respondents
JUDGMENT
A
VAN NIEKERK, AJ
1.
The Applicant seeks to review and set aside
an arbitration award made by the First Respondent under case number
GA 9316/04.
2.
At the arbitration hearing, the First
Respondent recorded that she was required to decide whether or not
the Third to Fifth Respondents
were dismissed, and if so, whether
their dismissal was fair. It is not necessary for the purposes
of this judgment to record
the factual background to this dispute
save to say that at the arbitration proceedings the Applicant in
these proceedings, a temporary
employment service, denied having
dismissed the Third to Fifth Respondents, who in turn contested that
they had been dismissed,
and that their dismissals were substantively
and procedurally unfair.
3.
The arbitrator found, on the evidence
before her, that the Third to Fifth Respondents had indeed been
dismissed, largely on the
basis that they had been told by a member
of the Applicant’s management that there was no more work for
them at the premises
of the client to which they had been assigned
and that their services had accordingly been terminated. Having found
that the Third
to Fifth Respondents had been dismissed by the
Applicant, the First Respondent proceeded to find that the dismissal
was both substantively
and procedurally unfair. Although the
Third to Fifth Respondents had sought reinstatement, the First
Respondent considered
that given the period that had elapsed since
the date of dismissal (the events giving rise to the arbitration had
occurred in 2003)
and awarded each of them the equivalent of 12
months’ remuneration as compensation.
4.
When this matter was argued, the parties’
submissions concerned the First Respondent’s finding that the
Third to Fifth
Respondents were in effect engaged in atypical
employment relationship, that they had been dismissed by the
Applicant and that
the circumstances of their dismissal were such
that the First Respondent was correctly entitled to conclude that the
dismissal
was substantively and procedurally unfair. After the
parties had presented their submissions, the Court reserved its
judgment.
5.
In the course of preparing a judgment, it
became apparent from the record of the arbitration proceedings and
the supporting documentation
that the circumstances surrounding the
dismissal of the Third to Fifth Respondents were such that the reason
for the termination
of their employment was, on the face of it, one
based on the Applicant’s operational requirements. Were
that to be
the reason for dismissal, the CCMA would of course lack
jurisdiction since section 191 (12) of the Labour Relations Act (“the
Act”) provides that the CCMA has jurisdiction to determine the
fairness of a dismissal effected by reason of an employer’s
operational requirements only where the dismissal follows a
consultation process conducted in terms of section 189 of the Act in
respect of a single employee. The Court accordingly issued a
directive that supplementary heads of argument be filed on the
following issues:
“
Assuming
that the respondents were dismissed for the purposes of the
definition of ‘dismissal’ in section 186 of the
LRA, but
given that in terms of the record of the arbitration hearing (and the
First Respondent’s award) the individual respondents
were
dismissed for a reason that appears to relate to the Applicant’s
operational requirements, did the First Respondent
have jurisdiction:
(a)
to decide the point in limine (i.e.
whether the individual respondents were dismissed); and
(b)
to find that the dismissal of the
individual respondents was substantively and procedurally unfair, and
to award compensation?”
6.
The Third to Fifth Respondents, in the
supplementary heads of argument filed on their behalf, record that
the First Respondent was
faced with a situation in which the Third to
Fifth Respondents alleged that they had been unfairly dismissed, in
the face of the
Applicant’s denial of the existence of a
dismissal. On that basis, it was contended that the First
Respondent had the
necessary jurisdiction to entertain the point
in
limine
. In relation to the question
whether the First Respondent had the necessary jurisdiction to find
the dismissal substantively and
procedurally unfair, and to award
compensation, the Third to Fifth Respondents concede that the First
Respondent did not have the
necessary jurisdiction to make the
award. They submit that this Court has the necessary
jurisdiction to entertain a
dispute of this nature, and that the
Third and Fifth Respondents should be afforded the opportunity to
refer the dispute to this
Court. The Applicant agrees that the First
Respondent had no jurisdiction to make the award she did. In these
circumstances, the
whole of the First Respondent’s award stands
to be reviewed and set aside.
7.
I do not intend to make any ruling in
relation to any referral of their dispute to this Court by the Third
to Fifth Respondents.
The Act and the Rules of this Court
prescribe the manner in which this ought to be done and the
limitations that apply. The Third
to Fifth Respondents are entitled,
on that basis, to refer a dispute for adjudication should they so
wish.
8.
In relation to costs, the jurisdictional
issue was not raised at any stage during the arbitration process nor,
as I have stated
above, in these proceedings, until after the point
that judgment had been reserved. In these circumstances, it would in
my view
be unfair to burden either of the parties with an order to
the effect that they should pay the costs of the other.
9.
I accordingly make the following order:
1.
The arbitration award made by t he First
Respondent under case number GA 9316/04 is reviewed and set aside;
2.
There is no order as to costs.
_________________________________
ANDRE
VAN NIEKERK,
Acting
Judge of the Labour Court
Date
of Hearing:
27 February 2008
Date
of Judgment: 19
August 2008