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[2011] ZALCJHB 101
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South African Express Airways (Pty) Ltd v Sjolund NO and Others (JR 2360/10) [2011] ZALCJHB 101; (2012) 33 ILJ 1268 (LC) (18 November 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE
NO: JR 2360/10
In the matter between:
SOUTH
AFRICAN EXPRESS
AIRWAYS
(PTY) LTD
…........................................................................
Applicant
and
AG
SJOLUND N.O
…................................................................
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…...................................
Second
Respondent
MT
NHLENGETHWA
…...........................................................
Third
Respondent
Heard
:
19 October 2011
Delivered
:
18 November 2011
judgment
BHOOLA J
Introduction
This is an application in terms of
section 158(1)(g)
of the
Labour
Relations Act 66 of 1995
to review, set aside and correct the ruling
under case number GAJB35373-08 handed down by the first respondent
(the commissioner)
dated 28 July 2010.
Background facts
The third respondent was employed by the applicant as a pilot under
training during May 2008. He was as a result enabled to fly
the
CRJ200 as a first officer, but constantly had difficulty executing
safe landings. The applicant provided him with more training
than
was required in terms of its flight operations manual, but despite
this, he was unable to perform to its satisfaction. The
applicant
made a decision to convene an incapacity hearing in the interests of
the safety of its operations and customers.
The third respondent was informed on 10 September 2008 that an
incapacity hearing was to be convened on 6 October 2008 to address
and determine the consequences of his poor work performance. He
raised various grievances in which he alleged
inter alia
that
he was being victimised on account of his race and that the
appraisal and incapacity process was instituted in order to
delay
his progress. In order to enable it to address these grievances, the
applicant postponed the incapacity hearing.
On 30 October 2008, prior to the final step in the grievance process
being finalised, the third respondent resigned. In his letter
of
resignation, he stated that he was forced to resign due to
‘prejudice since I am the only African pilot in the jet crew’.
He alleged that all the events leading up to his resignation
occurred on account of his race.
On 25 November 2008, the third respondent referred a constructive
dismissal dispute to the second respondent (the CCMA) in which
he
sought maximum compensation for his alleged dismissal on the ground
of his race. The dispute remained unresolved at conciliation
and was
set down for arbitration on 28 July 2010. At the arbitration, the
applicant raised a point
in limine
that the CCMA lacked
jurisdiction to determine the dispute on the following grounds :
Section 191(5)(a)(ii)
of the Act prohibits the CCMA from
determining a dispute where the employee alleges that the contract
of employment was terminated
(either by the employer or employee)
for a reason contemplated in
section 187
;
The third respondent alleged that his constructive dismissal is
based on race discrimination, which is a ground envisaged in
section 187(1)(f)
of the Act; and
Section 191(5)(b)
provides that the employee may refer the dispute
to the Labour Court for adjudication if he alleges that the reason
for dismissal
is one envisaged in
section 187
as being
automatically unfair .
The commissioner found that the CCMA did in fact have jurisdiction
to determine the dispute.
The ruling
The commissioner noted in the ruling that: ‘[t]he applicant
alleges that the respondent’s unfair conduct towards
him was
based on his race and that he resigned due to the situation created
by the respondent’. He dealt with the point
in limine
by stating that:
‘
[t]he
respondent believes the applicant’s claim relates directly to
the fact that the applicant is black and that the matter
falls within
section 187(1)(f)
of the LRA. Should I find that the CCMA has
jurisdiction to arbitrate the matter the respondent states that the
applicant should
not be allowed to use the argument of discrimination
due to race during the arbitration proceedings’.
In his analysis, the commissioner stated :
‘
The
applicant resigned claiming unfair dismissal.
Section 187
states that
“(1) a dismissal is automatically unfair if the employer, in
dismissing
the employee, acts contrary to
section 5
or, if the reason for
dismissal
is
(f) that the employer unfairly discriminated against an employee. As
previously indicated the applicant resigned claiming constructive
dismissal and was not dismissed on grounds stated in
section
187(1)(f)
of the LRA. Constructive dismissal is considered as a
dismissal in terms of the LRA. Therefore, the CCMA would have
jurisdiction
to arbitrate the matter in terms of
section 186(1)(e)
as
stated in the LRA. The applicant bears the onus of proof in this
matter and alleges that the reason for his resignation was
due to his
race. The respondent’s submission in stating that the applicant
may not refer to discrimination cannot be considered
as the applicant
believes that this is the reason why he felt he had no other option
but to resign’.
Grounds of review
The applicant submits that the commissioner failed to take account
of the remainder of
section 191(5)(a)(ii)
, which provides that the
CCMA must arbitrate the dispute ‘…
unless the
employee alleges that the contract of employment was terminated for
a reason contemplated in
section 187
’.
Therefore, it is
apparent that the commissioner failed to properly apply his mind to
the issue of whether the CCMA has jurisdiction.
If regard were had
to the full text of
section 191(5)(a)(ii)
, it would have been clear
that although the power to arbitrate a constructive dismissal
dispute is indeed conferred on the CCMA,
this power is withdrawn
where it is alleged that the constructive dismissal is based on a
reason set out in
section 187.
The applicant seeks to set aside the ruling on the grounds, firstly
that the commissioner’s failure to consider and analyse
the
full scope of
section 191(5)(a)(ii)
of the Act together with the
facts placed before him, is so unreasonable as to constitute a gross
irregularity and /or that it
demonstrates a patent, alternatively
latent failure to apply his mind to the evidence before him and /or
it demonstrates that
he misconceived the powers conferred on him by
the Act. Secondly, the applicant submits that the commissioner’s
failure
to take into account the submissions made by the applicant
on the appropriate test for jurisdiction is so unreasonable as to
constitute a gross irregularity and/or it demonstrates a patent,
alternatively latent failure of the commissioner to apply his
mind
to the issues and evidence before him, and/or it demonstrates that
he misconceived the powers conferred on him under the
Act.
Analysis
Ms Tolmay relied on
Toit’s Menlyn Auto Traders v Van
Jaarsveld NO and Others
1
in which the court cited with approval the decision of Basson J in
Mawisa v CCMA and Others
2
,
as support for the submission that the CCMA lacks jurisdiction to
arbitrate the dispute in the present matter. In
Mawisa,
the
court held as follows : ’
[t]he
fact that the applicant has also alleged that the reason for the
(allegedly unfair) dismissal is related to his (mis)conduct
does not
mean that the CCMA now also has jurisdiction in regard to this
unfair dismissal dispute (in terms of
section 191(5)(a)(i)
of the
Act). The very same unfair dismissal dispute stands to be
adjudicated (also) by the Labour Court and, in the absence of
a
clear and unequivocal election on the part of the applicant, the
CCMA therefore does not acquire the necessary jurisdiction
to
arbitrate this dispute’.
3
[My emphasis]
[12] The employee persisted with his allegation that his dismissal
was also due to victimization and the court held that the CCMA
had no
jurisdiction to arbitrate the dispute. Similarly, in the present
matter given the plain meaning of
section 191(5)(a)(ii)
, the fourth
respondent would have to make an election to remove the allegations
of race discrimination from the ambit of the dispute
in order to
afford the CCMA jurisdiction. Ms Tolmay relied further on
Jamela v
Accord
4
where the court accepted that where the dispute concerns grounds
which would render the dismissal automatically unfair, the employee
had to refer the dispute to the Labour Court in terms of
section
191(5)(b)(i).
[13] It is clear from the authorities citied as well as the plain
reading of the Act that should the fourth respondent persist
with his
allegations of race discrimination, the CCMA would lack jurisdiction
to arbitrate the dispute in terms of
section 191(5)(a)(ii)
of the
Act. The ruling is vastly at odds with the law on this issue and
appears to have been made without a proper application
to the legal
and factual issues. For this reason, it is reviewed and set aside on
the grounds sought by the applicant as emanating
from the test
enunciated in
Sidumo.
5
.
Having set aside the ruling, I am not inclined to correct it as is
sought by the applicant in its notice of motion. There is in
my view
no reason why the normal rule that costs follow the cause should not
apply. The fourth respondent’s legal representative
was
afforded the opportunity, when the matter was stood down, to obtain
instructions in regard to a possible resolution of the
matter on the
basis of a consent to jurisdiction or otherwise. This was however not
forthcoming.
[14] Therefore, I make the following order :
The ruling of the first respondent dated 28 July 2010, made under
the auspices of the second respondent on 11 August 2010 under
case
number GAJB35373-08 is set aside on review.
The fourth respondent is directed to pay the costs of the
application.
_______________________
U Bhoola
Judge
APPEARANCES
APPLICANT: E Tolmay
Instructed by Webber Wentzel Attorneys, Johannesburg
FOURTH RESPONDENT: N Ralikhuvhana
Instructed by KRB Law Firm, Johannesburg.
1
(2006)
27
ILJ
2421 (LC).
2
(1998)
19
ILJ
1194 (LC).
3
Mawisa
at para 18.
4
[2001]
2 BLLR 150
(LC)
5
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12
BLLR 1097
(CC).