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[2009] ZALCJHB 45
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Avgold - Target Division v Commission for Conciliation, Mediation and Arbitration and Others (JR592/05) [2009] ZALCJHB 45 (6 October 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN BRAAMFONTEIN)
Case
nr: JR592-05
In
the matter between:
AVGOLD
– TARGET DIVISION
Applicant
V
COMMISSION
FOR CONCILIATION MEDIATION AND
ARBITRATION
1
st
Respondent
COMMISSIONER
MKOSANA NO
2
nd
Respondent
COMISSIONER
MVUMBI NO
3
rd
Respondent
MARIUS
W KOTZE
4
th
Respondent
JUDGMENT
AC
BASSON
[1]
This was an application to review and set aside a certificate issued
in terms of section 135(5)(a) of the Labour Relations Act
66 of 1995
(“the LRA”) by the Second Respondent (Commissioner
Mkhosana) dated 30 April 2003 (“the certificate”)
and the
ruling made by the 3
rd
Respondent (Commissioner Mvumbi) on
3 February 2005 in terms of section 158(1)(g) of the LRA and the
award (by the Third Respondent
- Commissioner Mvumbi) under
case number FS1960/03. The Applicant also sought an order suspending
the certification by the
director of the CCMA in terms of section
143(3) of the LRA for the enforcement of the arbitration award issued
by the Third Respondent
(Commissioner Mkosana).
Brief
exposition of the facts
[2]
The Applicant (Harmony-Target Mine) employed the Fourth Respondent
(Mr. Kotze – hereinafter referred to as “the
Respondent”)
as a store manager until his alleged unfair dismissal, either on 31
May 2003 or 10 March 2003. What exactly
was the date of his dismissal
will be considered in the paragraphs hereinbelow. At that time of his
appointment the Applicant was
of the view that the post (of store
manager) will have to be described, profiled and weighted whereafter
the post would be advertised
for an appointment. It was therefore
decided to fill the post in the interim until the aforesaid process
was completed. The Respondent
was then appointed and it was common
cause that the Respondent, an attorney by profession, had signed four
consecutive fixed term
contracts.
The
first contract 15 July 2002 – 11 October 2002
[3]
The Respondent was appointed as a stores manager with effect 15 July
2002 for a fixed period until 11 October 2002. The main
task of the
Respondent was to profile and describe the specific position of store
manager.
[4]
The agreement specifically stated that the contract was for a
specific period and that the contract “
will be terminated on
11 October 2002
”. The contract further stated that
this “
contract does not create the expectation that such
contract will continue after expiry of the above mentioned period”.
This contract also stated that the Respondent was an independent
contractor and that the LRA therefore did not apply. The
contract, however, also referred to annual leave and to the fact that
“
the employee
” had a certain amount of leave. Also
significant is the fact that the contract contained an express
non-variation clause.
The
second contract 12 October 2002 – 31 December 2002
[5]
A further fixed term contract was concluded for the period 12 October
2002 until 31 December 2002. This contract was signed
on 18 October
2002. This contract was similar to the previous contract save
for clause 3.1 which stated that –
“…
the
need for the temporary position exist in order for Target [the
Applicant] to complete the process of describing profiling and
recruiting a suitable incumbent to fill the intended permanent
position”.
[6]
Apart from the fact that this agreement clearly stated that the
contract was of a limited duration (until 31 December 2002),
it
further specifically stated that the Respondent’s position was
a “
temporary position
” and that the Applicant was
in the process of describing, profiling and recruiting a suitable
candidate for the intended
permanent position. This contract
also contained a non-variation clause and the same provision in
respect of leave and sick
leave to which “
the employee”
will be entitled to. It is therefore clear from a reading of this
contract that:
(i)
The contract was of a limited duration;
(ii)
The position of the Respondent was temporary;
(iii)
The Applicant was in the process of profiling a position and
recruiting a
suitable position for the intended permanent position.
The
position filled by the Respondent was therefore, in terms of the
express terms of the contract, clearly not permanent. The contract
also clearly stated that a process will be followed before a suitable
candidate will be employed in a
permanent
position.
The
third contract: 2 January 2003 – 28 February 2003
[7]
A further fixed term contract was concluded for the period 2 January
2003 until 28 February 2003. This agreement was exactly
the same as
the previous contract and in terms of clause 3.1 it was reiterated
that the contract was for a temporary position until
a suitable
incumbent was recruited for the permanent position.
Advertisement:
Procurement and material manager
[8]
In November 2003 the Applicant advertised the post of procurement and
material manager. The Respondent applied for the position
and
submitted his curriculum vitae. The position of procurement and
material manager had the following requirements: (i) A degree
or
diploma in Material Management or related field; (ii) 5 - 7 years
procurement and material handling experience; (iii) experience
in the
mining industry (will be advantageous); (iv) good interpersonal
communication and negotiation skills, physical fitness and
computer
literacy (amongst others).
[9]
In terms of the Applicant’s recruitment policy, which was
attached to the papers, an appointment will be preceded with
an
advertisement and an interviewing process by a panel who will then
interview the finalist selected from those who applied.
[10]
It was common cause that the Respondent was not successful with his
application and was informed thereof by his immediate supervisor
Mr.
Peter Crankshaw on 13 February 2003. The new manager was to start on
1 March 2003. The Respondent was informed that he will
be offered a
further contract for the period 1 March 2003 until 31 May 2003 to
help with the hand over of the store functions and
to assist with
certain outstanding contracts.
[11]
The Respondent was informed on 17 March 2003 that he was not
successful in his application for this post.
Letter
dated 27 February 2003
[12]
On 27 February 2003, before signing the fourth contract, the
Respondent in a letter with heading “
RENEWAL OF CONTRACT
”
demanded to know whether the Applicant intended renewing the newly
offered contract (which was for the period 1 March 2003
until 31
March 2003). This letter is significant for various reasons:
(i)
Firstly, in the letter the Respondent specifically referred to the
fact that
he had signed a
fixed term contract
. This statement,
in my view, indicates that the Respondent was fully aware of the
nature of the contract that he had signed.
The Respondent must
have known that he was not a permanent employee and that his
continued employment depended upon the signing
of another or further
contract. Why else would he ask whether the Applicant intended
renewing the contract? (The relevance of this
fact will become clear
in the discussion hereinbelow.)
(ii)
Secondly, the Respondent specifically asked for a confirmation that
the
contract will be renewed. This again, in my view, clearly
confirms the fact that the Respondent knew exactly what he was
signing.
It is also significant to point out that the letter is
headed “
RENEWAL OF CONTRACT
”. In light of the fact
that the Respondent is not a lay person but an attorney by
profession, it can be accepted that the
Respondent knew what the
nature of the contract was.
[13]
The Applicant responded on
7 March 2003
in a letter
headed “
Re. RENEWAL OF CONTRACT
” and informed the
Respondent that the Applicant has
not
yet taken a final
decision and stated that it will respond on Monday 10 March 2003.
The
letter of 10 March 2003
[14]
The Applicant responded on
10 March 2003
with a letter
headed “
Re. RENEWAL OF CONTRACT
”. In this letter
the Applicant specifically referred the Respondent to the relevant
provisions in the contract and reiterated
that the Respondent could
not have been under a reasonable impression or expectation that the
contract will renewed. The Respondent’s
attention was further
specifically drawn to the fact that, on each occasion, a specific
termination date of the contract had been
agreed upon. Lastly, the
Applicant stated that it was
not
in a position to
confirm whether or not the fixed term contract will be renewed. It is
thus, for purposes of this dispute, important
to stress that nowhere
in this letter was the Respondent informed of a decision that the
contract will
not
be renewed.
The
letter of 25 March 2003
[15]
On 25 March 2003 the Respondent’s attorney wrote a letter
stating that -
“
when our client
was requested to sign a contract of temporary nature he was also
assured that his employment was permanent and that
he was therefore
brought under a reasonable expectation as envisaged in terms of
Section 186(1)(b) of the LRA…”
It
is difficult to understand precisely what is conveyed by this letter.
Is it conveyed that the Respondent was a permanent employee
or is it
conveyed that the Respondent had a reasonable expectation as
envisaged in section 186(1)(b) of the LRA that his contract
will be
renewed?
[16]
The letter further stated the following:
“
Contrary to
your suggestion that our client was employed in terms of a fixed term
contract which was renewed without creating an
expectation it is
clear that prior to our client’s employment, no suggestion was
ever made that our client’s employment
was of a temporary
nature.”
[17]
The Respondent’s attorneys further stated in this letter that
they were of the view that the Respondent was “dismissed”
on
10 March 2003
. The relevant paragraph reads as
follows:
“
Under the
circumstances, it is quite clear that the termination of our client’s
services as indicated in your letter dated
10 March 2003 constitutes
an unfair dismissal. You therefore leave our client with no
alternative but to immediately refer the
matter to the CCMA. To this
extent, we enclose under cover hereof form 7.11, being our client’s
referral of his unfair dismissal
to the CCMA for conciliation.”
The
fourth agreement: 1 March 2003 – 31 May 2003
[18]
On 27 February the Respondent signed the fourth and last contract
which was exactly the same as the previous three contracts.
The
Respondent signed this contract despite the fact that he knew he was
not appointed to the position that he had applied for.
Referral
to the CCMA
[19]
On 25 March 2003 the Respondent referred a dispute in terms of
section 186(1)(b) of the LRA to the CCMA. In the referral it
is
stated that - “
the employee was appointed for an indefinite
period despite terms of contract indicating temporary”.
In
the referral the Respondent thus averred that he was appointed for an
indefinite period (notwithstanding the fact that he had
signed four
fixed term contracts) and that the dispute arose on
10 March
2003
.
[20]
The dispute was set down for conciliation on 30 April 2003. The point
was raised by the Applicant that the Respondent was not
an employee
but an independent contractor. Commissioner Mkhosana (the Second
Respondent) held that the Respondent was an employee.
The Applicant
decided not to pursue this issue any further. The certificate of
non-resolution was thereafter issued. It is important
to stress that
the issue of a premature referral was not raised before the
conciliating commissioner.
Pre-arbitration
agreement
[21]
The parties held a pre-arbitration meeting on 3 February 2004. The
Applicant informed the Respondent that a point
in limine
will
be taken at the commencement of the proceedings on 3 February
regarding the date of referral of the dispute. I will return
to this
point hereinbelow.
[22]
In the pre-trail minutes the following is reflected as being in
dispute:
“
That the
employee reasonably expected the employer to renew the aforesaid
fixed term contract of employment
”.
The
Commissioner was required to decide the following:
“
Whether the
employer created a reasonable expectation of renewal of the fixed
term contract of employment.
”
[23]
What is confusing about these minutes is the fact that it is now
seemed to be the case of the Respondent that he was dismissed
because
his contract was not renewed in circumstances where he had a
reasonable expectation of renewal. This dispute falls squarely
within
the ambit of section 186(1)(b) of the LRA. The dispute that was
referred to arbitration in terms of the LRA 7.13 is also
described as
one which falls within the ambit of section 186(1)(b) of the LRA.
[24]
The arbitration commenced on 3 February 2004. The issue referred to
the arbitration was whether the Respondent had reasonably
expected
the Applicant to renew his fixed term contract; whether that
expectation was reasonable and whether the failure by the
Applicant
to renew the fixed term contract constituted an unfair dismissal as
contemplated in section 186(1)(b) of the LRA.
[25]
Before turning to the
in limine
proceedings, I must point out
that a further version surfaced during the arbitration hearing. This
version is also repeated in
the answering affidavit. In paragraph
[25] of the answering affidavit the Respondent stated that: “
I
had perceived myself to have been permanently employed and that the
fixed term contract was simply an administrative formality
to ensure
payment of my salary.
” However, further at paragraph 33 of
the answering affidavit the Respondent appears to acknowledge that he
was employed in
terms of a fixed term contract. The following is
stated: “
In respect of the point in limine I testified that
I was appointed in July 2002 and I expected my fixed term contract to
be renewed
until my permanent position was confirmed.
”
Later in paragraph [39] the Respondent again reverted back to the
first version and that is that he was employed permanently:
“
I
testified that I expected my fixed term contract to be repeatedly
renewed in that from the start of my services my perception
was that
I was appointed in the position on a permanent basis ant that the
contracts were merely administrative
.”
[26]
To
summarise
:
In terms of the arbitration award and in terms of the pre-arbitration
minutes, the Respondent’s case appeared to be a dispute
in
terms of
section
186(1)(b) of the LRA
in that he was dismissed in circumstances where he reasonable
expected the employer to renew a fixed term contract. I have already
referred to the fact that it was common cause that the Respondent had
signed four consecutive fixed term contracts. Each contract
clearly
stipulated that the contract was for a specific period only and that
the contract will terminate at a specific time. The
Respondent’s
evidence regarding the written contracts was that he merely signed
these (fixed term) contracts from time to
time and that he merely
regarded these contracts as an administrative formality for purposes
of obtaining a salary. If regard is
had to the answering affidavit,
it is stated there that the Respondent regarded his position to be
regulated by the fixed term
contracts with an expectation that it
would be renewed until he was made permanent.
[1]
There appears to be two (conflicting) versions. If the Respondent’s
case is one of a reasonable expectation of renewal, it
is clear that
the date of the dismissal will be the date on which the employer
notified the employee of the intention
not
to review the contract (see section 190(2)(a) of the LRA).
[27]
The other version (which appears to be the principle version if
regard is had to the evidence at arbitration and the answering
affidavit) is that the Respondent was actually appointed for an
indefinite period (in other words permanently) despite the fact
that
four contracts (which he signed) clearly and unambiguously stated
that his appointment was merely temporary and despite the
fact that
each of the four contracts clearly stated that he will be appointed
for a specific period of time. A further version
was that the
Respondent was merely on probation during the time when his
employment was regulated by the fixed-term contracts.
In his
evidence, however, the Respondent stated that he never regarded his
employment simply for a fixed period and insisted that
he was a
permanent
employee. I find this version to be
improbable. As already point out, the Respondent was a qualified
attorney and I find it extremely
unlikely and improbable that an
attorney (who admitted that one of his tasks was to draft contracts
for the Applicant) would not
understand what he was signing, namely
four consecutive fixed term contracts.
[28]
What is even more problematic for the Respondent is the fact that
each of the contracts contained an express non-variation
clause. Be
it as it may, I have decided to consider what the
date of
dismissal
was having regard to both versions.
Section
190 of the LRA
[29]
Section 190 of the LRA states the following in respect of the
date of the dismissal:
“
190
Date of dismissal
(1) The date of
dismissal is the earlier of-
(a)
the date on which the contract of employment terminated; or
(b)
the date on which the employee left the service of the employer.
(2) Despite subsection
(1)-
(a)
if an employer has offered to renew on less favourable terms, or has
failed to renew, a
fixed-term contract of employment, the date of
dismissal is the date on which the employer offered the less
favourable terms or
the date the employer notified the employee of
the intention not to renew the contract;
(b)
if the employer refused to allow an employee to resume work, the date
of dismissal is the
date on which the employer first refused to allow
the employee to resume work;
(c)
if an employer refused to reinstate or re-employ the employee, the
date of dismissal
is the date on which the employer first refused to
reinstate or re-employ that employee.”
Date
of dismissal in terms of the first version
[30]
Returning
to the point at issue: If the Respondent’s version is to be
accepted (which I do not accept) that he was permanently
employed,
then the date of his dismissal will be determined with reference to
section 190(1) (a) and (b) of the LRA which provides
that the date of
the dismissal is the earlier of the date on which the contract of
employment terminated or the date on which the
employee left the
services of the employer. It was common cause that the contract came
to an end on 31 May 2003. It was also common
cause that the
Respondent left the Applicant in the middle of May 2003 which is some
weeks
after
the dispute had been referred to the CCMA.
[2]
On this version the dispute was therefore referred to the CCMA
before
the Respondent was actually “
dismissed
”
as contemplated by the LRA. The referral to the CCMA was therefore
clearly premature and the CCMA did not have jurisdiction
to
conciliate (and/or arbitrate) the dispute.
Date
of dismissal in terms of the second version
[31]
What is the date of dismissal if the dispute was one which was
referred to the CCMA in terms of section 190(2)(a) of the LRA
(the
non-renewal of the fixed term contract)? The Respondent alleged that
he was informed on
10 March 2003
that his contract was not to
be renewed (this is also borne out by the letter from his attorney).
There is simply no factual basis
for this allegation. The letter from
the Applicant clearly stated that a decision has
not
yet been
taken. Taking into account these facts clearly the referral to the
CCMA was premature as there has not yet been a “
dismissal
”
as contemplated by the CCMA at the time of the referral.
[32]
In passing it must also be pointed out that the Respondent also
stated during the
in limine
hearing that he was informed on 13
February 2003 that the contract would not be renewed after 31 May
2003. It must be pointed out
that this is not in accordance with his
attorney’s letter which clearly stated that the Respondent was
informed on 10 March
that the contract would not be renewed. The
Respondent must therefore stand and fall by this letter.
The
in limine argument
[33]
To recap: The referral to the CCMA was made on 25 March 2003. In
terms of the referral to conciliation (the LRA 7.11), it is
stated
that the date of the dismissal was
10 March 2003
.
[34]
An
in limine
point was raised at the commencement of the
arbitration hearing namely that the referral to conciliation was
premature.
[35]
As part of the
in limine
point, the Respondent gave evidence.
I have already referred to his evidence in the aforegoing paragraphs.
[36]
The arbitration was postponed in order to allow Commissioner Mvumbi
to make a decision. The ruling was made on 31 March 2004.
The
Commissioner referred to section 190(1) of the LRA and held as
follows:
“
I am not
persuaded by the Respondent’s view that his matter was nullity
(sic) because the Respondent was not bona fide in
launching the Point
in Limine instead he had become technical and formalistic in approach
so as to frustrate the expeditious resolution
of this dispute (sic).”
[37]
It is unclear what the Commissioner is trying to convey in this
paragraph. What is, however, clear from the ruling, is the
fact that
the Commissioner was of the view that he may proceed with the
arbitration because the certificate (of non-resolution)
has not been
challenged.
Review
of the ruling
[38]
Should this
Court review the ruling? Before I make a finding on this point it is
necessary to briefly restate the law. It is trite
that a Commissioner
(being a statutory organ with no inherent powers) must make a ruling
as to its own jurisdiction when a jurisdictional
point is raised.
[3]
One of the issues that will determine whether or not the CCMA has
jurisdiction is whether or not a dispute has been referred to
the
CCMA within the statutory prescribed time limits. Where the dispute
has been referred out of time, application for condonation
must be
made simultaneously with the referral of the dispute to the CCMA
(Rule 9(2) of the CCMA Rules). It is likewise a jurisdictional
issue
whether or not an alleged dismissal dispute was referred prematurely
or not. Simply put: The CCMA cannot conciliate a “dismissal”
dispute when no dismissal has taken place.
[39]
It is clear
from the Ruling of Commissioner Mvumbi that he was of the view that
he had jurisdiction to hear the matter simply because
a certificate
of non-resolution has been issued by the conciliating commissioner.
In general, the issuing of a certificate of non-resolution
will be
the jurisdictional precondition or jurisdictional fact that confers
power on the arbitrating commissioner to arbitrate
the referred
dispute. In other words, as a general rule it is thus the factual
existence of a certificate of non-resolution that
enables the
arbitrating commissioner to arbitrate the dispute referred to it.
Whether the certificate of non-resolution is legally
valid or invalid
does not (as a general rule) affect the power of the arbitrating
commissioner to arbitrate a dispute and the certificate
of
non-resolution will remain valid until reviewed and set aside by a
competent court such as the Labour Court.
[4]
The general rule is, however, only applicable in circumstances where
the conciliating commissioner has ruled on a specific jurisdictional
issue.
[40]
It appears from the papers that the jurisdictional issue raised
before Commissioner Mvumbi (the arbitrating commissioner) was
not
raised before Commissioner Mkhosana (the conciliating commissioner)
who issued the certificate of non-resolution. The only
jurisdictional
issue that was raised before Commissioner Mkhosana was whether or not
the Respondent was an employee or an independent
contractor. As
already pointed out, the issue of a premature referral was not raised
before the conciliating commissioner.
[41]
The pertinent question which arises in the present case is whether or
not Commissioner Mvumbi was correct in deciding not to
decide the
jurisdictional issue of premature referral on the basis that the mere
fact that a certificate of non-resolution has
already been issued he
therefore had the necessary power to proceed with the arbitration.
Where a specific jurisdictional point
has been raised before and
decided by a conciliating commissioner, the subsequent arbitrating
commissioner will have the necessary
power to proceed with
arbitration. Under those circumstances the CCMA commissioner at
arbitration will not be able to decide a
jurisdictional point afresh
as it has already been decided by the conciliating commissioner.
[42]
I have dealt with this issue at length in
EOH Abantu (Pty) Ltd v
Commission for Conciliation, Mediation & Arbitration &
Another
(2008) 29
ILJ
2588 (LC). In that matter I have
indicated that a Commissioner at conciliation is obliged to deal with
jurisdictional matter once
it is raised before him or her. In
paragraph [16] of that judgment, it was pointed out that Rule 14 of
the Rules of the CCMA confirms
the principle that the CCMA (as a
statutory authority) must determine the issue of jurisdiction as a
prerequisite for exercising
its powers in terms of the CCMA. This
rule states as follows under the heading “
How to determine
whether a commissioner may conciliate a dispute”
:
“
If it appears
during conciliation proceedings that a jurisdictional 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
.”
[43]
I have also
pointed out in the aforementioned decision that Rule 22
[5]
allows for an arbitrating commissioner to determine a jurisdictional
point at arbitration provided that it (the jurisdictional
point) has
not been raised before the conciliating commissioner for some reason.
In other words, if a jurisdictional point is raised
at conciliation
or if it becomes clear during the conciliation proceedings that a
jurisdictional issue has arisen, the conciliation
commissioner is
compelled to deal with the issue and make a ruling (which is subject
to review by the Labour Court). However, where
a jurisdictional point
has not been raised at conciliation, the arbitrating commissioner
must entertain such a jurisdictional point
despite the fact that a
certificate has been issued:
“
[20]
It appears from a reading of rule 22 that it is only in those
circumstances where a jurisdictional issue
has not been determined,
that the arbitrating commissioner will be entitled to determine a
jurisdictional issue despite the fact
that the conciliating
commissioner has already issued a certificate of
non-resolution. To this end, rule 22 appears to be
in conflict with
administrative principles in terms of which a statutory authority is
precluded to (review and) set aside an administrative
act (such as a
certificate of non-resolution) or decision as well as with the
principle that an administrative act (such as a certificate
of
non-resolution) remains valid until reviewed and set aside by a
competent court such as the Labour Court. Rule 22 clearly has
as it
purpose to assist parties to a labour dispute, most of whom are lay
people and who may not have realized or known that a
jurisdictional
concern even existed or ought to have been raised at the conciliation
phase, to raise such a jurisdictional concern
at the arbitration
phase notwithstanding the fact that a certificate of non-resolution
has been issued. In Premier Gauteng &
others v Ramabulana NO &
others (2008) 29 ILJ 1099 (LAC) the Labour Appeal Court also
confirmed that the CCMA may derive
powers from the rules insofar
as they do not conflict with the LRA. Rule 22 will also apply where
the conciliating commissioner
issues a certification of
non-resolution in circumstances where the employer did not attend the
conciliation hearing and only raises
a jurisdictional point at the
commencement of the arbitration proceedings. Rule 22 is, in my view,
not applicable to those instances
where a party raises a
jurisdictional point (such as for example that an applicant before
the CCMA is not an employee) during the
conciliation proceedings. In
such circumstances the conciliating commissioner is, in my view,
obliged to consider the point and
a refusal to investigate the
jurisdictional issue would, in my view, constitute a reviewable
irregularity. This rule is also not
applicable to those circumstances
where the conciliating commissioner did in fact make a ruling on a
jurisdictional point. In such
circumstances the certificate of
non-resolution will stand and subsequent arbitration proceedings will
be lawful until such time
the certificate is reviewed and set
aside. Rule 22 is also, in my view, not applicable to those
circumstances where a party
(usually the employer party) is aware of
a jurisdictional point but deliberately fails to raise it during
conciliation but only
raises it at arbitration. In such circumstances
I am of the view that the employer party will have to launch proper
review proceedings
before the Labour Court to review the certificate
of non-resolution. The decision to review a certificate under such
circumstances
will clearly be subject to the Labour Court's
discretion and, in weighing this question, regard will be had, inter
alia, to the
extent to which the employer had abused the CCMA
proceedings by deliberately not raising the jurisdictional
concern as well
as the extent to which the disputing parties might
have relied or acted on the certificate of non-resolution.”
[6]
[44]
The Ruling of Commissioner Mvumbi is thus, in my view reviewable on
the basis that he refused to entertain a jurisdictional
point that
was raised before him for the first time. On this basis alone the
Ruling of Commissioner Mvumbi is reviewed and set
aside.
[45]
Despite the fact that it is not, in light of the aforegoing,
necessary for this Court to then to evaluate the merits of the
Ruling
made by Commissioner Mvumbi, I will do so in any event in order to
bring finality to this matter that has been dragging
on for a number
of years.
[46]
I have already referred to the merits of the arguments raised as part
of the point
in limine
proceedings before Commissioner Mvumbi.
I will not repeat what I have already found and that is that the
referral was premature.
The CCMA did not have the necessary
jurisdiction to hear the matter. As such the Commissioner acted
ultra
vires
by proceeding with the arbitration. I can find no reason
why costs should not follow the result.
[47]
In the event the following order is made:
1.
The Ruling made by the Third Respondent on 31 March 2004 is
reviewed
and set aside in terms of
section 158(1)(g)
of the
Labour Relations
Act 66 of 1995
.
2.
As a consequence of the order in terms of paragraph 1, the award
made
by the 3
rd
Respondent on 3 February 2004 is reviewed and
set aside in terms of
section 145
of the
Labour Relations Act 66 of
1995
.
3.
The 4
th
Respondent is ordered to pay the costs.
……………………………………
.
AC
BASSON, J
6
October 2009
FOR
THE APPLICANT:
PJ
Greyling of Greyling & Associates
FOR
THE RESPONDENT:
Adv
GA Fourie. Instructed by Louw Maree Inc.
[1]
Paragraph 81 of the answering affidavit.
[2]
The LRA 7.11 was signed 25 March 2003.
[3]
The
Court in
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & Another
(2008) 29
ILJ
2588 (LC) held as follows: “
[7]The
CCMA is a creature of statute and hence it only has jurisdiction
over those disputes referred to it in terms of the LRA.
See in this
regard
s 115(4)
of the LRA which reads as follows: 'The Commission
must perform any other duties imposed and may exercise any other
powers conferred
on it by or in terms of this Act and is committed
to perform any other functions entrusted to it by any other law.'
(Emphasis
added.)
[8]The
CCMA's main statutory function is to resolve disputes through
conciliation and to arbitrate those disputes referred to
it 'in
terms' of the powers conferred upon it by the LRA and the rules. The
CCMA (as a creature of statute) will therefore act
ultra vires
should it assume jurisdiction over disputes not referred to it in
terms of the LRA. The jurisdiction of the CCMA
(and of any other
statutory tribunal) is dependent upon the existence of certain
objectively predetermined conditions as set
out in the LRA from
which it derives its existence. Although a statutory tribunal (such
as the CCMA) will (for practical reasons)
rule on its jurisdiction,
it cannot by virtue of the fact that it is a statutory authority,
confer the necessary jurisdiction
upon itself. Any
pronouncement on jurisdiction remains subject to the review powers
of the Labour Court..
[9]
Although a tribunal (such as the CCMA) cannot rule on its own
jurisdiction, it will do so for practicality considerations
and will
do so subject to review by the Labour Court….
[4]
EHO Abantu (supra) at paragraph [14].
[5]
Rule 22 reads as follows:
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 Commission has jurisdiction to
arbitrate the dispute
”
[6]
See
EOH
Abantu (supra).