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[2010] ZALCJHB 52
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Kentz Engineering (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR597/2010) [2010] ZALCJHB 52 (19 October 2010)
Not
reportable/ not of interest to other judges
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
IN JOHANNESBURG)
JR597/2010
In
the matter between:
KENTZ
ENGINEERING (PTY)
LTD APPLICANT
AND
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION 1
st
RESPONDENT
COMMISSIONER
KATLHOLO
WABILE 2
nd
RESPONDENT
THABABI
IAN
MOYO 3
rd
RESPONDENT
JUDGMENT
AC BASSON, J
[1]
This is an application in terms of section 158(1)(g) of the Labour
Relations Act 66 of 1995
(“the LRA”) in terms of which
the applicant (Kentz Engineering (Pty) Ltd – “Kentz”)
seeks an order
to review and set aside the certificate of outcome
issued by the 2
nd
respondent (“the commissioner”)
concerning an alleged unfair discrimination dispute between the 3
rd
respondent (Mr. Moyo – “Moyo”) and Kentz. The
review is opposed.
[2]
The record of the proceedings comprises of the LRA form 7:11, the
certificate of outcome
and the condonation application filed by Moyo
at the CCMA.
[3]
When a commissioner decides an application (condonation) in terms of
section 191(2) of the
LRA, the commissioner performs a function as
contemplated in section 158(1)(g) of the LRA. Such a ruling is
therefore reviewable
on any grounds that are permissible in law (see
NUMSA & Another v Voltex (Pty) Ltd t/a Electric Centre &
Others
[2000] 5 BLLR 619
(LC) and
Mould v Roopa NO &
Others
(2002) 23 ILJ 2076 (LC)).
[4]
In the present case Moyo was appointed as an assistant accountant
during July 1996 until
30 April 1999 when he was dismissed on the
basis of operational requirements. His dismissal was found to be fair
by the CCMA. Moyo
did not file a review against the award of the
CCMA.
[5]
More than 10 years later on 18 January 2010 Moyo referred a dispute
about discrimination
to the CCMA. He also applied for condonation for
the late filing of the discrimination dispute. In the present case
the act of
omission which allegedly constituted the unfair
discrimination in terms of the Employment Equity Act 55 of 1998 (“the
EEA”)
therefore allegedly occurred whilst Moyo was still
employed by Kentz. Moyo alleged that he was underpaid by Kentz. On
the facts
before this court it can therefore safely be concluded that
the latest that such an act or omission could have occurred was in
April 1999 just prior to his dismissal.
[6]
It needs to be mentioned that Moyo has referred the discrimination
dispute to the Labour
Court. The dispute is still pending. The
present application only deals with the review of the certificate of
outcome that was
issued by the commissioner consequent to the
conciliation proceedings. If the certificate is reviewed and set
aside it will therefore
dispose of the matter currently pending
before this Court.
The certificate
[7]
The certificate of outcome issued by the commissioner states that the
dispute remained unresolved
and that condonation was “
not
applicable”
. The commissioner indicated that condonation
was not applicable despite the fact that Moyo himself had filed a
condonation application
and despite the fact that the CCMA notice of
setdown indicated that the
in limine
point (namely the
condonation application) was to be determined first. The commissioner
therefore proceeded with conciliation without
determining the
condonation application first. To make matters worse, the
commissioner then indicated that condonation was “
not
applicable
”.
Legal principles
[8]
An employee who refers an alleged unfair discrimination case to the
CCMA does so in terms
of section 10(2) and (3) of the EEA. Section 10
reads as follows:
“
10 Disputes
concerning this Chapter
(2)
Any
party to a dispute concerning this Chapter may refer the dispute in
writing to the CCMA
within
six months after the act or omission
[1]
that allegedly constitutes unfair discrimination.
(3)
The CCMA may at any time permit a party that shows good cause
to refer a dispute after the relevant time limit setout in subsection
(2).”
[9]
Where a dispute about an unfair dismissal or an unfair labour
practice is referred to the
CCMA, the LRA likewise requires that the
dispute be referred to conciliation within a certain prescribed time
limit: 30 days of
the date of a dismissal in the case of an unfair
dismissal dispute and 90 days of the date of the act or omission (or
within 90
days of the date on which the employee
became aware
of the act or occurrence).
[10]
There are sound policy considerations as to why the LRA and the EEA
require disputes to be referred to the
CCMA for conciliation within a
certain prescribed time limit. The court in
Van Rooy v Nedcor Bank
Limited
[1998] 5 BLLR 540
(LC), for example, stated that it is
important to require referrals to be done in a certain time to ensure
that finality is reached
in disputes. Where a party fails to apply
for condonation the CCMA will not have jurisdiction to hear the
matter. The Court held
as follows:
“
The purpose of
the 30 day period set out in section 191(1) is, in my mind, to
regulate referrals and to ensure that there is finality
in each
matter that arises. I am of the view that the 30 day time period in
section 191 is peremptory. I say peremptory as condonation
is
necessary for a dispute that was referred beyond that time period to
be consolidated. Thus the fatality of a late referral is
cured by
condonation if granted and only then will the Commissioner have
jurisdiction to conciliate the dispute.”
[11]
Van Niekerk, J in
Bombardier Transportation (Pty) Ltd v Lungile
Mtiya NO &
Others (JR 644/09 of 11 March 2010 similarly held
at paragraph [13]:
“
[13] The
first step in this approach is to recognise that many "jurisdictional
issues" raised by parties in
conciliation proceedings are not
jurisdictional questions in the true sense. For example, whether a
person is an independent contractor
or an "employee" as
defined in section 213 of the LRA is more properly a question that
falls within the power of the
CCMA to determine in the course of the
arbitration proceedings (ie the adjudication stage of the matter) in
relation to a dispute
before it. It is not a question that must
necessarily be determined prior to conciliation taking place, nor is
it a jurisdictional
question contemplated by rule 14 of the CCMA's
Rules. A challenge to the CCMA's jurisdiction on the basis that there
was no dismissal
falls into the same category. The only true
jurisdictional questions that are likely to arise at the conciliation
phase are whether
the referring party referred the dispute within the
time limit prescribed by section 191(1)(b), whether the parties fall
within
the registered scope of a bargaining council that has
jurisdiction over the parties to the dispute to the exclusion of the
CCMA,
and perhaps whether the dispute concerns an employment-related
matter at all.2
The distinction to be drawn is one
between facts that the Legislature has decided must necessarily exist
for a tribunal to have
the power to act (and without which the
tribunal has no such power) and facts that the Legislature has
decided must be shown to
exist by a party to proceedings before the
tribunal, the existence of which may be determined by the tribunal in
the course of
exercising its statutory powers.3
The
power given to the CCMA to determine the fairness of a dismissal
includes the power to determine whether or not an applicant
was an
employee, and whether she was dismissed. These questions ordinarily
fall to be determined in the course of the CCMA's adjudication
functions. It follows that a conciliating commissioner is under no
obligation to determine them at the conciliation phase.”
[12] I
am in agreement with the submission that these principles equally
apply to disputes about alleged unfair
discrimination in terms of
section 10 of the EEA. In terms of this section disputes must be
referred to the CCMA within six months.
The same policy
considerations that underlie referrals in of disputes about unfair
dismissals apply in the case where an alleged
unfair discrimination
dispute is referred to the CCMA. It is clear from a reading of
section 10 of the LRA that the six month time
limit is peremptory. A
commissioner is, however, given the power to grant condonation where
applicable. Put differently, non compliance
with the prescribed time
limit can only be cured by an application for condonation. Failure to
apply for condonation will result
in the CCMA not having jurisdiction
to conciliate the matter.
[13] It
appears that both the commissioner and Moyo are of the view that the
referral may be made within six months
of the date on which the
employee
became aware
of the act which allegedly constituted
unfair discrimination. This may be so in the case of an unfair labour
practice in erms of
section 191(b)(ii) of the LRA. In terms of this
section a dispute about an unfair labour practice must be referred to
the CCMA
within 90 days of the date of the act or omission which
allegedly constitutes the unfair labour practice . If it is a later
date,
within 90 days of the date on which the employee became aware
of the unfair labour practice. A similar provision namely that a
dispute may be referred to the CCMA within 90 days of the date on
which the employee
became aware of the act or occurrence
of
the act of discrimination was not included in section 10(2) of the
EEA. Accordingly, the only interpretation that can be given
to the
time limit prescribed in section 10(2) of the EEA is that the dispute
about unfair discrimination may be referred to the
CCMA within six
months
after the act or omission that allegedly constitutes unfair
discrimination
. If it was the intention of the legislature to
have made provision for the situation where an employee may refer a
dispute to the
CCMA within six months after having become
aware
of the act or omission it would have provided for that scenario and
would have included wording similar to that which is employed
in
section 191(1)(b)(ii) of the LRA. In the premises, the certificate
issued by the commissioner is defective and therefore falls
to be
reviewed and set aside.
[14]
There is also a further ground on which the certificate falls to be
reviewed and set aside. The commissioner
clearly committed an error
of law in performing his duties in terms of the LRA when he issued
the certificate of outcome. This
court has, on numerous occasions,
held that errors of law is reviewable where they lead to injustice to
a party. See
Purefresh Foods (Pty) Ltd v Dayal
(1999) 20
ILJ
1590 (LC) at 1596G – 1597A. In the present case the
commissioner clearly committed an error of law when he concluded that
condonation was “
not applicable
”. The commissioner
erred in circumstances where section 10(2) of the EEA requires that a
dispute about discrimination be
referred to the CCMA within six
months after the act or omission that allegedly constituted the
discrimination. In the present
case Moyo referred the dispute more
than 10 years after the act or omission that allegedly constituted
discrimination. The commissioner
therefore erred in not appreciating
the fact that condonation is a jurisdictional precondition and that
he must consider such an
application. If the commissioner had
correctly considered the law he would have realized that the CCMA
does not have jurisdiction
to conciliate a discrimination dispute
that has been referred to the CCMA ten years out of time without a
condonation application.
In the event the certificate also stands to
be reviewed and set aside on this ground.
[15] In
addition to the aforegoing there is also one further ground of
review. In the present case the commissioner’s
conduct was
grossly unreasonable and amounted to misconduct when he failed to
apply his mind properly to the facts that were before
him. Where a
commissioner fails to have regard to material facts before him (in
the present case the fact that there was a condonation
application
before him), it cannot be said that the commissioner fulfilled his
mandate. In disregarding the condonation application
the commissioner
prevented the aggrieved party from placing his dispute before the
CCMA. In these circumstances the decision of
the commissioner falls
to be reviewed and set aside. See
Sidumo & Another v
Rustenburg Platinum Mines Ltd & Others
(2007) 28
ILJ
2405 (CC) at paragraph [165]:
“
[165]
Thus construed, the commissioners are required to act fairly in the
determination of unfair dismissal disputes. If a
commissioner fails
to do so he or she commits a gross irregularity in the conduct of the
arbitration proceedings and the ensuing
arbitral award falls to be
reviewed and set aside. Similarly, if a commissioner makes an award
which is inconsistent with
his or her obligations under the LRA, he
or she acts in excess of the powers conferred by the LRA and the
award falls to be reviewed
and set aside.”
…
.
[189] The
general powers of review of the Labour Court under s 158(1)(g)
are therefore subject to the provisions
of s 145(2) which prescribe
grounds upon which arbitral awards of CCMA commissioners may be
reviewed. These grounds are misconduct
by the commissioner in
relation to his or her duties; gross irregularity in the conduct of
the proceedings; where the commissioner
exceeds his or her powers; or
where the award was improperly obtained. These are the only grounds
upon which arbitral awards of
CCMA commissioners may be reviewed by
the Labour Court under s 145(2) of the LRA. It follows therefore that
a litigant who wishes
to challenge an arbitral award under s 145(2)
must found his or her cause of action on one or more of these grounds
of review.”
………
..
[276] As
public officials who exercise public powers, commissioners may only
make those awards which are consistent
with their obligations
under the LRA and the Constitution. Where a commissioner renders an
award that is inconsistent with
his or her powers conferred on a
commissioner by the LRA, in my view, the commissioner exceeds his or
her powers and the award
falls to be reviewed and set aside under s
145(2)(a) (iii) of the LRA. Given the constitutional right to
fair labour practices,
the provisions of s 188 read with items 1, 2
and 7 of the code, an award which is manifestly unfair to either the
employer or employee
can hardly be said to be consistent with the
powers conferred upon a commissioner to make an award that is fair.
In effect, if
a commissioner fails to determine the dispute fairly,
he or she is in breach of the statute that is the source of his or
her power to conduct the arbitration and is also in breach of the
doctrine of legality, which is a constitutional constraint upon
the
exercise of his or her powers. This conduct on the part of the
commissioner is ultra vires, that is, beyond powers conferred
on the
commissioners as contemplated in s 145(2)(a) (iii).”
[16] In
the event the award also falls to be reviewed and set aside on the
basis that the commissioner failed
to apply his mind and failed to
consider the condonation application placed before him
Costs
[17] I
have decided in the interests of fairness not to award costs against
Mr. Moyo.
Order
[18] In
the event the following order is made:
1.
The certificate of outcome issued by the 2
nd
Respondent
under case no GAJB1355-10 is reviewed and set aside.
2.
There is no order as to costs.
_______________
AC
BASSON,J
DATE
OF HEARING
:
22 September 2010
DATE
ORDER
:
22 September 2010
DATE
OF JUDGMENT
: 19 October 2010
On
behalf of the applicant
:
Mr
Gwaunza of Edward Nathan Sonnenbergs Inc.
On
behalf of the respondent:
In
person.
[1]
My emphasis.