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[2009] ZALCJHB 47
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Phera v Education Labour Relations Council and Others (JR568/09) [2009] ZALCJHB 47 (22 September 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NO: JR 568/09
In
the matter between:
JAMES
PHERA
APPLICANT
and
EDUCATION
LABOUR RELATIONS COUNCIL
1
ST
RESPONDENT
LESLEY
RAMULIFHO
2
ND
RESPONDENT
GAUTENG
DEPARTMENT OF EDUCATION
3
RD
RESPONDENT
THE
MEC FOR EDUCATION:
GAUTENG
4
TH
RESPONDENT
THE
METROPOLITAN RAUCAL
SCHOOL
5
TH
RESPONDENT
JUDGMENT
NYATHELA AJ
Introduction
[1]
This is an application for review of a
ruling in terms of section 158(1)(g) of the Labour Relations Act 66
of 1995 (the LRA). The
ruling was issued by the second respondent
under case number PSES 375-05/06 and is undated. In terms of the
ruling, second respondent
found as follows: “
With
the above analysis I make rulings as follows:
(1)
That the Education Relation Council
has no jurisdiction to entertain this matter as there is no issue of
unfair labour practice
since applicant was never an employee of the
respondent;
(2)
The applicant can either approach
the CCMA or the Labour Court for alternative relief;
(3)
There is no order as to costs”.
[2]
The application is opposed by the third,
fourth and fifth respondents.
The parties
[3]
The applicant is James Phera, a former
educator who applied for a temporary educator’s post advertised
by the third respondent.
[4]
The first respondent is the Education
Labour Relations Council (ELRC), a statutory Council established in
terms of the LRA.
[5]
The second respondent is Lesley Ramulifho,
a Panellist of the first respondent. The second respondent is cited
herein in his capacity
as the Panellist who presided at the
arbitration proceedings under case No: PSES 375-05/06.
[6]
The third respondent is the Gauteng
Department of Education, a government department in the Gauteng
Province.
[7]
The fourth respondent is the MEC of
Education cited in her official capacity as the person responsible
for the Gauteng Department
of Education.
[8]
The fifth respondent is the Metropolitan
Raucall School is a public school under the control of the third
respondent.
The facts
[9]
The applicant in response to an advert by
the Gauteng Department of Education applied for a position of a
teacher in English First
Language to Grade 9 and 10 pupils at the
Metropolitan Raucall School. The advert indicated that the post was
based at Metropolitan
Raucall School but it was a Department of
Education appointment.
[10]
Applicant attended an interview for the
above position on 11 August 2005 and was advised by fifth respondent
that his interview
was successful.
[11]
On 15 August 2005, applicant completed an
application for a temporary appointment as educator form and a notice
of temporary appointment
form. On the last page of the notice of
appointment form below the applicant’s signature there is a
note reading as follows:
“
Urgent:
Educators are not allowed to assume duty without the written
permission of the district manager”.
[12]
In terms of the advert, the period of
employment was to start from 15 August 2005 to 31 December 2005.
[13]
Applicant commenced employment at
Metropolitan Raucall School on 22 August 2005. On 26 August 2005, the
headmaster informed him
that the Gauteng Department of Education had
declined to approve his appointment in that he was previously
dismissed by the Department
as an educator and that as a result of
the dismissal, he was blacklisted.
[14]
According to the respondents, the offer of
employment was conditional upon approval of appointment by the third
respondent.
[15]
Applicant referred a dispute of unfair
labour practice relating to “refusal to appoint” to the
Education Labour Relations
Council (ELRC) on 19 September 2005. The
dispute was conciliated on 21 October 2005 and remained unresolved.
An arbitration was
scheduled to take place on 16 November 2005.
[16]
At the arbitration hearing, third
respondent raised a
point in limine
and stated that the ELRC had no jurisdiction to hear the matter as no
employment relationship existed between the applicant and
the
respondent. The finding by the second respondent was that the ELRC
“
has no jurisdiction to entertain
this matter as there is no issue of unfair labour practice since the
applicant was never an employee
of the respondent and that applicant
was blacklisted on the persal system”.
[17]
It is this ruling of the second respondent
which applicant seeks to review and have it set aside.
Grounds for review
[18]
In the founding affidavit the applicant
contended amongst others that:
18.1 The second
respondent was to decide on the fairness of his dismissal or the
Department’s refusal to appoint him. The
reasons for the
dispute, which did not constitute the dispute was incorrectly made an
issue.
18.2 The finding of the
ELRC on the point in limine deprived him of his right to challenge
his unfair dismissal dispute and was
therefore prejudiced.
18.3 There is no rational
connectional between the decision reached by the commissioner and the
material which was properly placed
before him.
Legal position
[19]
Rule 14 of the Rules of the CCMA provides
that: “
If it appears during
conciliation proceedings that a jurisdiction issue has not been
determined, the commissioner must require the
referring party to
prove that the Commission has the jurisdiction to conciliate the
dispute through conciliation”.
[20]
Rule 22 of the Rules of the CCMA provides
that: “
If during the arbitration
proceedings it appears that a jurisdictional issue has not been
determined, the commissioner must require
the referring party to
prove that the Commissioner has jurisdiction to arbitrate the
dispute”.
[21]
In
Sidumo
& another v Rustenburg Platinum Mines Ltd & others (2007) 28
ILJ 2405 (CC),
the court held that in
reviewing an arbitration award, the test should be whether “
...
having
regard to the reasoning of the commissioner,
based
on the material before him, it cannot be said that his conclusion was
one that a reasonable decision maker could not reach.”
Analysis
[22]
According to applicant, the second
respondent should not have dealt with the question whether applicant
was an employee or not but
should have confined himself to the
fairness of applicant’s alleged dismissal or non-appointment.
As pointed out above, Rule
14 and 22 of the Rules of the CCMA which
deal with conciliation and arbitration proceedings respectively
require that if a jurisdictional
point is raised during conciliation
or arbitration proceedings, or if the commissioner on his own accord
realises that a jurisdictional
issue has not been dealt with, he
should require a party alleging that the commission has jurisdiction
to prove the said jurisdiction.
These rules apply equally to
proceedings before the ELRC.
[23]
It is settled law that Labour Law and the
Labour Relations Act only
apply to the relationship between employer
and employee. It follows therefore that the question whether a person
is an employee
or not, is a jurisdictional issue. I am satisfied that
the arbitrator acted correctly by dealing with the jurisdictional
issue
which had been raised before him. It would have been improper
for the arbitrator to proceed and deal with the merits of the case
before dealing with the jurisdictional issue.
[24]
However, the court has to determine whether
the decision reached by the commissioner is one which a reasonable
decision maker could
not reach given the materials before him at the
time of making the decision.
[25]
In this matter, applicant signed the Notice
of Appointment Form which clearly stated that he should not commence
employment until
he obtained written permission from the District
Manager i.e third respondent. Applicant was therefore fully aware
that his employment
would be conditional on the third respondent
granting him written permission to commence teaching. Third
respondent did not grant
applicant permission and thus the
conditional employment terminated due to the non-fulfilment of the
condition. Since the offer
of employment was conditional, and the
condition not having been fulfilled, applicant cannot be regarded as
an employee.
[26]
This case is distinguishable from the case
of
Wyeth SA (Pty) Ltd v Manqele &
others (2005) 26 ILJ 749 (LAC), Discovery Health Limited v CCMA &
[2008] ZALC 24
;
(2008) 7 BLLR 633
(LC) and Kylie v Commission for Conciliation
Mediation and Arbitration & others
[2008] ZALC 86
;
9 BLLR 870
(LC)
in that in all the above cases, the offer of employment was not
conditional unlike in the present matter. These cases are therefore
not relevant to the present matter.
[27]
The other grounds for review deal more with
the merits of the case. These grounds would only become relevant if
there was a finding
that the conclusion reached by the second
respondent on the issue of jurisdiction was improper. However, in
view of my finding
that the second respondent was correct in making
his finding on jurisdiction, the other grounds inevitably fall
off.
[28]
I therefore find that the conclusion
reached by the second respondent in the circumstances is not one
which a reasonable decision
maker could not have reached.
Order
In the light of the above
analysis, I make the following order:
[29]
The panellist’s ruling that the ELRC
has no jurisdiction stands.
[30]
I dismiss the application for review with
costs.
_______________
Nyathela
AJ
Date
of Hearing :
28 April 2009
Date
of Judgment :
22 September 2009
Appearances
For
the Applicant :
Mr I.I Mohamed
(Routeledge
Modise Attorneys)
For
the Respondent: Adv. Baloyi
Instructed
by :
State Attorney