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[2011] ZALCJHB 165
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Pankana CC t/a R&W Transport Components v Dreyer NO and Others (JR1800/09) [2011] ZALCJHB 165 (14 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Reportable Case no: JR1800/09
In the matter between
PANKANA CC t/a R & W TRANSPORT
COMPONENTS
..................................................................................................
Applicant
and
L DREYER N.O
First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION
........................................................................
Second
Respondent
INAAYAT CASSIM
..............................................................................
Third
Respondent
DATE OF HEARING: 28
th
day of July 2011
DATE OF JUDGMENT: 14
th
day of September 2011
JUDGMENT
COOK AJ
Introduction
The application for review was filed in Court on 7
th
July 2009. The arbitration award came to the attention of the
Applicant on 1
st
June 2009.
The Applicant seeks:
To set aside the arbitration award dated 16 May 2009
in terms of which the First Respondent, the commissioner, ordered
the Applicant
to pay the sum of R48 429, 99 under case number
GATW2178/09 of the Second Respondent [“the CCMA”]
together
with the certificate of outcome issued by the CCMA in the
matter. (on the ground that the CCMA lacked jurisdiction to hear
the matter)
Further, should it be found that the CCMA had
jurisdiction to consider the employee’s claim of unfair
dismissal against
the Applicant, an order replacing the CCMA’s
ruling with an order that the Applicant did not dismiss the
employee,
alternatively
that the matter be remitted to the
CCMA for determination afresh before a commissioner other than the
First Respondent.
The Issue
The Applicant’s case is that the award and the
certificate which were issued pursuant to the employee’s
referral
of the dispute fall to be reviewed and set aside for want
of jurisdiction.
The allegation is based on
“
the
fact that the business conducted by the Applicant described above,
and the place from which it conducted that business, caused
it to
fall under the jurisdiction of the Motor Industry Bargaining Council.
In terms of the applicable provisions of the Act, the
dispute between
the Third Respondent and Applicant should have been referred to and
processed by that bargaining council and Third
Respondent had no
jurisdiction in respect of the said dispute.”
[The reference to Third
Respondent in the second last sentence is obviously an error and
should be a reference to the Second Respondent.]
The Applicant goes on to state that should the
jurisdictional point of review not be upheld, then the award should
be set aside
on review based on the manner in which the commissioner
dealt with the evidence.
Jurisdiction
In terms of the founding affidavit, the Applicant is
cited as follows:
“
The
Applicant is Pankana CC t/a R & W Transport Components, a company
with its postal address at P O Box 34406, Erasmia ...
It conducts
business as a retail store for truck and trailer spares and operates
from industrial premises at Unit 1, ...”
1
[Paragraph 3, page 7 of the paginated bundle]
The Applicant’s first ground of review “is
that since Applicant was covered by the Motor Industries Bargaining
Council
(“MIBCO”) that a suit should have been referred
to that council for resolution and that Second and First Respondents
had no jurisdiction to make the order sought to be reviewed –
they thus exceeded their powers as contemplated in Section
145(2)
(a) (iii) of the Labour Relations Act, (“the Act”).”
2
It is argued that the starting point in determining
this ground of review is Section 191(1) (a) (i)-(ii) of the Act
which provides
that:
“
(1)
(a) If there is a
dispute
about the fairness of a
dismissal
,
or a
dispute
about an unfair labour practice, the dismissed
employee
or the
employee
alleging the unfair labour practice may refer the dispute in writing
to-
(i) a
council,
if the
parties to the
dispute
fall within the registered
scope
of that
council;
or
(ii) the Commission, if no
council
has jurisdiction.
Section 29(15)(a) of the Act requires the Registrar of
Labour Relations to issue to a registered bargaining council a
“certificate
of registration in the Applicant’s name
that must specify the registered scope of the Applicant”.
A copy of the application for variation of scope of the
Motor Industry Bargaining Council was handed up by Counsel at the
hearing
of the matter. The scope and registration of the Motor
Industry Bargaining Council with effect from 29
th
of
April 2009, records the following:
“
Motor
industry” means without in any way limiting the ordinary
meaning of the expression –
...
(h) The business carried on
mainly or exclusively for the sale of motor vehicles or motor vehicle
parts and/or spares and/or accessories
(whether new or used)
pertaining thereto, whether or not such sale is conducted from
premises that are attached to a portion of
an establishment wherein
is conducted the assembly of or repair of motor vehicles is carried
out.”
In terms of section 147 (3) (a) of the LRA
“
If at
any stage after a
dispute
has been referred to the Commission, it becomes apparent that the
parties to the d
ispute
fall within the
registered
scope of a council
and that one or more parties to the
dispute
are not parties to the
council,
the Commission may-
(i) refer the
dispute
to
the
council
for resolution; or
(ii) appoint a commissioner or,
if one has been appointed, confirm the appointment of the
commissioner, to resolve the dispute in
terms of
this Act.”
I was referred to the case of
Magic
Company v CCMA and Others
3
[
which it was submitted was distinguishable to the
facts of the matter before me.
In
Magic Company,
the employer raised a point
in
limine
at the review stage that the CCMA lacked jurisdiction to
hear the matter on the ground that the dispute should have been
referred
to the Bargaining Council for the Entertainment Industry of
South Africa. The employer argued that the arbitration was conducted
irregularly by the CCMA even though it was aware that it lacked
jurisdiction.
The court found that:
“
On the
limited evidence available, and relying particularly on the
applicant’s evidence that the CCMA was twice informed that
the
council had jurisdiction to determine the dispute, I am persuaded on
the probabilities that the Commission opted to assume
jurisdiction
and appointed the commissioner to resolve the dispute. Since the
third respondent, unlike the applicant, was not a
party to the
council, the assumption of jurisdiction was proper and in accordance
with the pre-conditions stipulated in the subsection.
The fact that
the appointed commissioner, without the benefit of any argument on
the point, did not record the basis of his jurisdiction,
is neither
here nor there. The authority to appoint the commissioner vested in
the Commission, acting through the Director or any
other official to
which the power might have been lawfully delegated. Once the CCMA was
informed of the council’s jurisdiction
it seems likely in the
circumstances that it elected to proceed, as it was entitled to do,
under section 147(3) (a) (Act 66 of
1995). Such a finding is in
keeping with the spirit of the general canon of construction:
verba
ita sunt intellegenda ut res magis valeat quam pereat
and
the evidential presumption of validity expressed by the maxim
omnia
praesumuntur rite esse acta
,
both of which are fortified in this instance by the legislative
injunction in section 1 calling on functionaries, including
judges, when applying the LRA to promote the effective resolution of
labour disputes. In the premises the applicant’s challenge
to
jurisdiction must be dismissed”.
4
In the present matter, the issue of jurisdiction was
not raised by any of the parties until raised by the Applicant at
the review
stage. It is argued that the
Magic case
can be
distinguished on this basis as in this matter there can not have
been an election to proceed as envisaged in
section
147(3)(a) of the LRA.
Analysis
In
SA Broadcasting Corporation v Commission For
Conciliation, Mediation and Arbitration and Others,
5
Freund AJ discussed
Fidelity Guards Holdings (Pty) Ltd v Epstein
and Others
6
as follows:
“
The
factual background to the
Fidelity
Guards
case
appears from the decision of Pillemer AJ in the court a quo (reported
as
Fidelity
Guards Holdings (Pty) Ltd v Epstein and Others (
2000)
21 ILJ 2009 (LC);
[2000] 3 BLLR 271
(LC)). Pillemer AJ made clear
that that case was an instance of what he called a 'pernicious
practice' that appeared to be developing
where -
'an employer
whose employee has lodged a claim with the commission out of the
30-day period
(often,
as in the present case, the employee believing that the date of
dismissal is the date the appeal is refused), elects not
to raise any
complaint, anticipating that at the conciliation hearing no question
of condonation will arise. The
employer
fails to conciliate on the
merits of the dispute, allows a certificate that the dispute remains
unresolved to be issued without
demur and
engages
in the arbitration that follows again without raising any question
about the time when the dispute was referred.
Then,
if unsuccessful in the arbitration, the employer approaches the
Labour Court relying upon the trump card presented to him
by the
Checkers case, contending that the arbitrator had no jurisdiction in
the first place'
(emphasis added).
Pillemer AJ stated:
'Obviously this practice, which
is unconscionable and borders on fraud, frustrates the purpose of the
Act.'
Pillemer AJ dissented from
earlier cases in which it has been held that the arbitrator's
jurisdiction is dependent upon a timeous
referral and held that the
relevant jurisdictional fact, as far as the arbitrator was concerned,
was the s 135(5) certificate.
He stated (at paras 9-12):
“………
..
[12] If the
administrative act of certification is invalid, even then it must be
challenged timeously because, if not, public policy
as expressed in
the maxim omnia praesumuntur rite esse acta
7
,
requires that after a reasonable time has passed for it to be
challenged, it should be given all the effects in law of a valid
decision (cf
O'Reilly
v Mackman [
[1983] UKHL 1
;
1983] 2 AC
237
, 238 and
[Harnaker]
v Minister of Interior
1965
(1) SA 372
(C) at 381).'”
The rationale for section 147 is to avoid delays that
might otherwise be caused by jurisdictional disputes. (See in this
regard
Speciality Stores v SACCAWU
and Another
8
.
) However in order for the section to serve its purpose, the
jurisdictional dispute needs to be raised. In situations like this
when all the parties fail to do so, the opposite is achieved. As a
result of the failure to raise the point, the parties went
to the
expense of both time and money and ran an entire arbitration.
The Applicant then at the review stage, after seeking
legal advice, raises the point for the first time. The effect is
that the
matter is delayed and if the matter is to be referred to
the bargaining council, the process will have to start
de novo
,
with the leading of all the evidence afresh. This offends the
concept of speedy resolution of labour disputes.
The applicant alleges the MIBCO has jurisdiction since
the Applicant is covered by MIBCO. The basis for this allegation is
to
be found in the citation of the Applicant in paragraph 3 of the
founding affidavit
The Applicant failed to attach to its affidavit a
certificate of registration certifying that the Applicant is
registered by the
bargaining council as an employer in the motor
industry nor did it attach a certificate of accreditation of the
council issued
by the CCMA in terms of section 127 of the LRA
accrediting the bargaining council to perform dispute-resolution
functions including
the authority to resolve disputes about unfair
dismissals through conciliation and arbitration. At the hearing of
this matter,
a certificate of accreditation was handed in by Counsel
for the Applicant for the first time.
Counsel for the Applicant also placed on record the
Applicant’s reassurance to the Court that MIBCO had
jurisdiction and
that the Applicant would not raise the point that
the MIBCO did not have jurisdiction had this not been the true
position.
There is nothing before the Court to suggest that the
raising of the jurisdictional point at the review stage was done on
purpose
for a tactical advantage. If there were such allegations
perhaps the Court’s view would have been different.
Conclusion
The central issue to be determined is, can a party
raise the technical point of jurisdiction at the late stage of
review, or ought
this point to have been raised before arbitration
failing which, the party loses the right to raise the point.
As a consequence of the issue of jurisdiction having
not been raised at arbitration, (or more appropriately having not
been raised
before the arbitration commenced), the CCMA could not
exercise the discretion conferred upon it in terms of section
147(3)
(a) of the LRA.
If the Applicant had raised the
jurisdictional challenge or the evidence led at arbitration
indicated that the MIBCO had jurisdiction,
then in terms of Rule 22
for the conduct of proceedings before the CCMA, the
commissioner
could have required the referring party to prove that the Commission
had jurisdiction to arbitrate the dispute.
Jurisdiction is a matter of fact, either the CCMA has
jurisdiction or the CCMA lacks jurisdiction. In the case of
Member
of the Executive Council, Department of Health, Eastern Cape v
Odendaal and Others,
9
Basson J held:
“
It has
been made clear in the decision of the Labour Appeal Court in
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd and
Others; SA Rugby (Pty) Ltd v SARPU and Another
(2008)
29 ILJ 2218 (LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC) that the question before
the court in reviewing such a ruling, is whether objectively speaking
the facts gave the CCMA jurisdiction
to entertain the dispute. The
review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) therefore does not find application in reviewing a
jurisdictional ruling:
'[39] The issue that was before
the commissioner was whether there had been a dismissal or not. It is
an issue that goes to the
jurisdiction of the CCMA. The significance
of establishing whether there was a dismissal or not is to determine
whether the CCMA
had jurisdiction to entertain the dispute. It
follows that if there was no dismissal, then the CCMA had no
jurisdiction to entertain
the dispute in terms of s 191 of the Act.
[40] The CCMA is a
creature of statute and is not a court of law. As a general rule, it
cannot decide its own jurisdiction. It can
only make a ruling for
convenience. Whether it has jurisdiction or not in a particular
matter is a matter to be decided by the
Labour Court. In
Benicon
Earthworks & Mining Services (Pty) Ltd v Jacobs NO
and
Others (1994) 15 ILJ 801 (LAC) at 804C-D, the old Labour Appeal Court
considered the position in relation to the Industrial
Court
established in terms of the predecessor to the current Act. The court
held that the validity of the proceedings before the
Industrial Court
is not dependent upon any finding which the Industrial Court may make
with regard to jurisdictional facts, but
upon their objective
existence. The court further held that any conclusion to which the
Industrial Court arrived on the issue has
no legal significance. This
means that, in the context of this case, the CCMA may not grant
itself jurisdiction which it does not
have. Nor may it deprive itself
of jurisdiction by making a wrong finding that it lacks jurisdiction
which it actually has. There
is, however, nothing wrong with the CCMA
enquiring whether it has jurisdiction in a particular matter provided
it is understood
that it does so for purposes of convenience and not
because its decision on such an issue is binding in law on the
parties. In
Benicon's
case the court said at 804C-D:
''In practice, however, an
Industrial Court would be short-sighted if it made no such enquiry
before embarking upon its task. Just
as it would be foolhardy to
embark upon proceedings which are bound to be fruitless, so too would
it be fainthearted to abort the
proceedings because of a
jurisdictional challenge which is clearly without merit.'
In my view, the
same approach is applicable to the CCMA.”
10
The raising of the jurisdictional point at the review
stage, in the absence of proof of a deliberate attempt to pull out a
“trump
card”, does not deprive the Applicant of the
right to raise the issue. As this matter was unopposed, the Court
has the
undisputed allegations of the Applicant, that due to the
nature of its business, that it falls within the jurisdiction of the
MIBCO. Furthermore on the facts, the CCMA did not exercise its
assumption of jurisdiction in terms of section
147(3)
(a) of the LRA
. Accordingly objectively speaking the facts
did not give the CCMA jurisdiction to entertain the dispute.
The employee will have to apply for condonation for the
late referral to the MIBCO as a result of the incorrect referral to
the
CCMA, but due to the fact both parties were under the erroneous
belief that the CCMA had jurisdiction, and did not raise an
objection,
on this basis, good cause ought to be established for the
purposes of condonation. The Applicant ought not to oppose the
condonation
application, and if it does it would demonstrate a lack
of
bona fides
.
As a result of the Court upholding the point of lack of
jurisdiction, it is not necessary to consider the review on the
merits.
In the circumstances, I make the following order:
The arbitration award dated 16
th
May 2009
under case number 2178-09 is reviewed and set aside.
The matter is to be referred to the MIBCO
No order of costs.
The order is to be served on the employee within 10
days of the date of this order.
_____________________________
COOK A.J
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: R.G. Beaton SC instructed by Vogel
Malan Attorneys
1
Paragraph
3, page 7 of the paginated bundle.
2
66
of 1995. This appears at Paragraph 2.1 page 2 Applicant’s
heads of Argument.
3
[2005]
4 BLLR 349
(LC).
4
Ib
at para 12.
5
(2003)
24 ILJ 211 (LC) at para 25 -27..
6
(2000)
21 ILJ 2009 (LC).
7
All
(official) acts are presumed to have been lawfully done
8
[1997]
8 BLLR 1099
(LC) at 1112 B.
9
(2009)
30 ILJ 2093 (LC).
10
Ib
at para 6 .