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[2011] ZALCJHB 269
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Van Schalkwyk v Commissioner for Conciliation Mediation And Arbitration and Others (JR31/09) [2011] ZALCJHB 269 (26 April 2011)
Not
reportable
Delivered
26 April 2011
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO JR 31/09
In
the matter between:
J
VAN SCHALKWYK
APPLICANT
and
COMMISSIONER
1
ST
RESPONDENT
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
2
ND
RESPONDENT
LIBERTY
GROUP OF COMPANIES
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside a ruling made by the
first respondent (‘the commissioner’) on a point
in
limine
raised after the referral of a dispute to the CCMA for
conciliation. The point raised was to the effect that the applicant
was
an independent contractor, and thus not an ‘employee’
as defined by s 213 of the Labour Relations Act. In his ruling,
the
commissioner upheld the point
in limine.
The
application for review
[2]
The basis for the application for review is not entirely clear. In
the founding affidavit, the applicant contends the arbitrator
committed gross misconduct on the basis, it would seem, that he
failed to have regard to the relevant code of good practice and
other
sources and authorities concerned with the determination of the
existence of an employment relationship. The applicant places
particular reliance on what is contended to be a misconception by the
commissioner as to the nature of his duties, and a failure
properly
to apply his mind to the legal issues before him. The heads of
argument filed on the applicant’s behalf adopt a
more expansive
line of attack. Here the applicant relies on the grounds established
in
Sidumo & another v Rustenburg Platinum Mines Ltd
[2007]
12 BLLR 1097
(CC), without specifically asserting that the
commissioner’s ruling represented a decision to which no
reasonable decision-maker
could come. The applicant submits further
that in making his ruling, the commissioner was exercising a judicial
function (which
required him to enquire properly into all of the
relevant facts and to have regard to the applicable law) and that the
contract
signed by the parties amounted to a prohibited ‘contracting
out’ of the rights to work security established by the
Constitution and the LRA.
Evaluation
[3]
The application is entirely misconceived. I do not intend to consider
the merits of the grounds for review, some of which border
on the
astonishing, to say the least. The approach to be adopted in a matter
of this nature has been the subject of a number of
decisions of the
Labour Appeal Court, none of which contemplate a determination on the
rationality or reasonableness of the commissioner’s
ruling.
The CCMA is a creature of statute – it cannot decide its own
jurisdiction. Any ‘jurisdictional ruling’
that a
commissioner makes is made for convenience (see
SA
Rugby
Players Association & others v SA Rugby (Pty) & others
(2008)
29
ILJ
2218
(LAC)). It follows that the question in the present proceedings is
not whether the commissioner’s finding is justifiable,
rational
or reasonable (or, in the
Sidumo
formulation, whether it was a decision to which no reasonable
decision maker could come); the question is whether the applicant
was
an ‘employee’ for the purposes of the Act. In
Solid
Doors (Pty) ltd v Commissioner Theron & others
(2004)
25
ILJ
2337
(LAC), a case that concerned the existence or otherwise of a
constructive dismissal, Japhta AJA made the point in the following
way:
Having
established what the requirements are for a constructive dismissal,
it is necessary to make the observation at this stage
of the judgment
that the question whether the employee was constructively dismissed
or not is a jurisdictional fact that –even
on review- must be
established objectively. That is so because if there was no
constructive dismissal- the CCMA would not have
the jurisdiction to
arbitrate. A tribunal such as the CCMA cannot give itself
jurisdiction by wrongly finding that a state of affairs
necessary to
give it jurisdiction exists when such state of affairs does not
exist. Accordingly, the enquiry is not really whether
the
commissioner’s finding that the employee was constructively
dismissed was unjustifiable. The question in a case such
as this one
– even on review- is simply whether or not the employee was
constructively dismissed. If I find that he was constructively
dismissed, it will be necessary to consider other issues. However, if
I find that he was not constructively dismissed, that will
be the end
of the matter and the commissioner’s award will stand to be
reviewed and set aside
(at
paragraph [29] of the judgment).
[4]
In other words, the test be applied in when a jurisdictional ruling
made by a CCMA commissioner is reviewed is correctness,
not
reasonableness. That being so, it seems to me that an applicant
seeking to review a jurisdictional ruling made by a CCMA commissioner
must necessarily set out the facts for which that party contends, and
the basis of that contention. Whether or not an applicant
is entitled
to plead new facts in the affidavits filed in the review proceedings
is not a matter I need decide, but the applicant
ought at least to
set out a sufficient factual basis for this court to decide whether
the commissioner’s ruling was correct.
Where there is a dispute
of fact on the papers, as far as it is possible, the court must
resolve that dispute and then apply the
legal principles relevant to
the determination of an employment relationship for the purposes of
the definition in s 213.
[5]
In the present matter, the applicant has failed to make out a case
within the parameters of the above approach. Although the
record of
the proceedings before the commissioner has been filed, it is not for
this court to construct a factual matrix from the
papers that would
be determinative of the correctness or otherwise of the
commissioner’s decision. To do so would run the
risk of making
out a case for the applicant. The third respondent has been brought
to court on the basis of the papers filed, and
it is entitled to have
the merits of the application determined on that basis.
[6]
For these reasons, the application must fail. In regard to costs, Adv
Gauntlett SC, who appeared for the third respondent, submitted
that
the costs of two counsel were warranted. I am not persuaded that for
the purposes of s 162 of the LRA, it would be fair to
allow the costs
of two counsel. The dispute between the parties clearly had the
potential to raise significant and difficult issues
and principles
As matters transpired, the application was a damp squib.
I
accordingly make the following order:
1.
The
application is dismissed with costs, such costs to include the costs
of one counsel.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 19 April 2011
Date
of judgment: 26 April 2011
Appearances:
For
the applicant: Ms R Anderson of Riki Anderson Attorneys
For
the third respondent: Adv JJ Gauntlett SC and Adv P LeR Theron,
instructed by Du Plessis Attorneys.