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[2010] ZALCJHB 372
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Bracks NO and Another v Rand Water and Another (JA2/08) [2010] ZALCJHB 372 (9 March 2010)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO. JA2/08
In
the matter between:
ADVOCATE
RAYNOLD BRACKS N.O.
First Appellant
(First
Respondent in the court
a quo)
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (CCMA)
Second
Appellant
(Second
Respondent in the court
a quo)
and
RAND
WATER
First
Respondent
(Applicant
in the court
a quo)
MARTHA
CHRISTINA
SWART
Second Respondent
(Third
Respondent in the court
a quo)
JUDGMENT
JAPPIE
JA
[1]
The appeal deals with the question whether the Commission for
Conciliation, Mediation and Arbitration (CCMA) has jurisdiction
in
terms of s 191(12) of the Labour Relations Act 66 of 1995 (the LRA)
to hear disputes about the procedural fairness of dismissals
for
operational requirements involving a single employee. The
appeal is unopposed.
[2]
The First Appellant, Advocate Raynold Bracks is a commissioner at the
CCMA. He was the designated arbitrator to arbitrate
an unfair
dismissal dispute between Rand Water and Martha Christina Swart (the
First and Second Respondents). At the arbitration
Swart
contended that she had been unfairly retrenched in that Rand Water,
inter alia,
had failed to comply with the procedural requirements as set out in s
189 of the LRA.
[3]
The First Appellant had found in favour of Swart and directed Rand
Water to reinstate her in her employment. Rand Water
launched
an application in the Labour Court in which it sought the review and
the setting aside of the First Appellants award.
The review was
sought on several grounds. One of the grounds upon which Rand
Water relied for the setting aside of the award
was that the CCMA
lacked the requisite jurisdiction to hear a dispute which concerned
the retrenchment of a single employee in
circumstances where such a
single employee alleges that the dismissal is unfair,
inter
alia
, for want of proper compliance by
the employer with the consultation requirements set out in s 189.
S 189 requires an employer
to consult with its employee/s or their
representatives before embarking on a retrenchment program.
Failure to comply with
s 189 could render a dismissal both
substantively as well as procedurally unfair.
[4]
In the Labour Court, Rand Water had argued that on a proper
construction and interpretation of s 191(12) the CCMA did not have
jurisdiction to arbitrate the dispute between itself and Swart.
At the arbitration, Swart had alleged that her retrenchment
and
subsequent dismissal was unfair because Rand Water had failed to
properly consult with her as required by s 189. It was
contended on behalf of Rand Water that because Swart had placed in
issue non- compliance with s 189, s 191(12) precluded her from
approaching the CCMA to arbitrate a dispute and that she was
compelled to placed the dispute before the Labour Court for
adjudication
[5] The Labour Court was
persuaded by the argument advanced on behalf of Rand Water and
concluded at paragraphs 41 and 42:
“
The
court is enjoined, when interpreting a statutory instrument, to give
effect to all the words in the statute. If it was
the
legislature’s intention that if one employee only is dismissed
by reason of an employer’s operational requirements,
then the
CCMA will have jurisdiction, the relevant section clearly need not
have contained the words ‘following a consultation
procedure in
terms of section 189
.
’
It must accordingly be determined what the legislature intended
by the insertion of these words. Having regard
to the fact that
the word ‘following’ may mean either ‘subsequent
to’ or ‘after’ as well as
bearing in mind that the
phrase ‘in terms of’ means ‘in conformity with’,
it follows that the phrase “following
a consultation procedure
in terms of section 189” could be interpreted to mean
subsequent to or after a consultation process
in conformity with
section 189’.
I am
accordingly driven to the conclusion that the legislature intended
that it only is in matters where only the substantive fairness
of a
dismissal by an employer by reason of its operational
requirements involving a single employee is to be determined that
the
CCMA has jurisdiction to hear the matter. As soon as the
procedural fairness of the dismissal is put in issue by a single
employee, I am satisfied that section 191(12) of the LRA must be
interpreted as meaning that such cases must still be referred
to the
Labour Court and that the CCMA will not have jurisdiction to hear
them. I am satisfied that no absurdity will result
from this
interpretation. Employees are not denied any remedies.
They may still take their cases to the Labour Court.”
[6]
In
Scheme Data Services (Pty) Ltd. v.
Myhill N.O. and Others
[2009] 4 BLLR
381
(LC
)
Ngalwana AJ expressed the view that the judgment of the court
a
quo
in this appeal is clearly wrong in
law. After a careful analysis of the judgment of the court
a
quo,
Ngalwana AJ concluded that s
191(12) did not exclude the jurisdiction of the CCMA to arbitrate an
unfair dismissal dispute in circumstances
where a single employee
contends that the dismissal for operational requirements is unfair
because the employer did not comply
with the procedural requirements
as set out in s 189.
[7]
In my view, Ngalwana AJ’s interpretation of s 191(12) in
Scheme
Data Services
is to be preferred.
[8]
Section 191(12) provides as follows
“
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 the employee only, the employee may
elect to the further dispute either to Arbitration or to the
Labour
Court”.
[9]
S 191(12) does not expressly pronounce upon the
jurisdiction of the CCMA. What the section provides is that
when a single
employee disputes the fairness of his/her dismissal for
operational reasons, and where such a dispute remains unresolved
after
conciliation, the single employee has a choice either to refer
the dispute to the CCMA for arbitration or to the Labour Court for
adjudication.
[10]
The court
a quo
took
the view that the words
“
following a
consultation procedure in terms of s 189”
meant
a consultation process that conformed with s 189 in all its
requirements. That is to say a single employee who disputes
his/her dismissal for operational requirements will have the
election, as set out in the section, only if the single employee
accepts that the consultation procedure in terms of s 189 had been
duly complied with.
[11]
To interpret s 191(12) as the court
a
quo
did, in my view, is to defeat the
very purpose of the section. The court
a
quo
had pertinently raised the
principle of purposive interpretation. It said at paragraph
[40] of its judgment:
“
It is
true that the LRA must be interpreted purposively to give effect to
an expeditious resolution of labour disputes
.
”
Having expressed itself thus, the court
a
quo
then embarked on a discourse to
discover what the intent of the legislature was when it enacted s
191(12). As was pointed
out in the
Scheme
Data Services
the court
a
quo
erred in its approach to the proper
interpretation of the section.
[12]
Section 191(12) was introduced by way of an amendment by s 46(i) of
Act 12 of 2002. The explanatory memorandum to the
amending act
states at paragraph 2.46 that s 191 is to been amended
“
to
provide that if only one employee is dismissed for operational
requirements the employee is able to refer the dispute up after
conciliation to the Labour Court or to Arbitration.”
There is no indication that it was the intention of the legislature
to limit a single employee’s election to dispute that can be
referred to arbitration to cases where only the substantive
fairness
is placed in issue. My view is that the legislature intended to
give a single retrenched employee, who may not be
able to afford the
legal costs of Labour Court litigation, the opportunity to have
his/her unfair dismissal dispute resolved by
arbitration. That
appears to be the plain purpose of s 191(12). The court
a
quo
therefore erred in placing upon s
191(12) a construction which limited a single employee’s
election to either approach the
CCMA or the Labour Court where both
the substantive and procedural fairness of his/her dismissal for
operational reasons are placed
in issue.
[13]
In the result the appeal succeeds. The legal question raised in
the appeal is answered with the finding that the CCMA
does have
jurisdiction in terms of s 191(12) to hear disputes about the
procedural fairness of a dismissal for operational requirements
involving a single employee.
_______________________
JAPPIE
JA
________________________
DAVIS
JA
__________________________
LEEUW
JA
Appearances
For
the Appellant
Mr JG van der Riet SC
Instructed
by
Cheadle Thompson &
Haysom
Date
of Judgment:
09 March 2010