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[2011] ZALCJHB 111
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Siemens Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2672/08) [2011] ZALCJHB 111; (2012) 33 ILJ 1476 (LC) (8 December 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
case
no:
JR 2672/08
In the matter between:
SIEMENS
LIMITED
…...............................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
…...........................................................
First
Respondent
DAVID DIKWABANE N.O
…...................................................................
Second
Respondent
ARNAUSE MOHLALA N.O
…....................................................................
Third
Respondent
GOVINDSAMY SILVAN CHETTY
…........................................................
Fourth
Respondent
Heard
:
8 November 2011
Delivered
:
8 December 2011
Summary
:
Application to review and set aside certificate of
outcome dismissed. No employment relationship found to exist between
the applicant
and the fourth respondent. The first respondent lacks
jurisdiction to arbitrate the dispute referred to it.
JUDGMENT
SAVAGE AJ
Introduction
[1] This is an unopposed application
in terms of which the applicant seeks to have a certificate of
outcome issued by the third
respondent (“the commissioner”)
reviewed and set aside and an order granted that the fourth
respondent was not employed
by the applicant.
[2] The applicant contends that in
terms of rule 14 of the CCMA Rules if a jurisdictional challenge
arises at conciliation, the
commissioner must determine whether the
CCMA has jurisdiction to conciliate the matter prior to issuing a
certificate of non-resolution
in the matter. The applicant seeks that
this Court decides the jurisdictional issue, orders that the fourth
respondent was not
employed by the applicant and that the CCMA lacked
jurisdiction to arbitrate the matter, alternatively that the matter
be referred
back to the CCMA for an
in limine
hearing before a
different commissioner.
The facts
[3] On 21 April 2008, the fourth
respondent, acting in his capacity as a director of Quantum Leap
Investments 596 (Pty) Limited
concluded a contractor’s
agreement with Faranani IT Services (Pty) Limited in terms of which
he was engaged as an independent
contractor by Faranani to provide
project management services to the applicant from 5 May 2008 until 31
October 2008.
[4] On 6 May 2008, the applicant and
Faranani concluded a labour broker services agreement in terms of
which it was agreed that
Faranani would assign the fourth respondent
to one of the applicant’s projects to provide project
management services. This
agreement required Faranani to conduct ITC,
criminal and educational verifications on the fourth respondent. When
a possible match
relating to a criminal offence was identified, the
fourth respondent was required in July 2008 to provide Faranani with
his fingerprints
which he did on 16 October 2008. Due to time
constraints, the criminal verification process could not be completed
prior to the
expiry of the contractor’s agreement on 31 October
2008 and the fourth respondent was notified on 24 October 2008 by
Faranani
that the contractor’s agreement would accordingly not
be renewed.
[5] The fourth respondent referred an
unfair dismissal dispute to the CCMA and the dispute was set down for
a con/arb process first
on 12 November 2008 and then on 13 November
2008. The second respondent commissioner indicated at these
proceedings that he was
not prepared to deal with the issue of
jurisdiction at the conciliation stage. The matter was then, by
agreement, set down for
hearing on 24 November 2008 and the applicant
served an in limine application and made an application for the
recusal of the second
respondent. The third respondent commissioner
thereafter proceeded with the matter, ruled that the CCMA had
jurisdiction to issue
a certificate and that the fourth respondent
could apply for arbitration.
[6]
The applicant thereafter approached this Court. The applicant relies
on a judgment by this Court in
EOH
Abantu (Pty) Ltd v CCMA and Another
1
to contend that the
commissioner was bound to decide any jurisdictional point raised in
conciliation proceedings before issuing
a certificate of outcome, and
that his failure to do so constitutes a reviewable irregularity.
The legal principles
[7]
In
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO and Others,
2
the Labour Appeal
Court held that once a certificate of outcome has been issued stating
that the dispute remains unresolved in terms
of section 135(5) of the
LRA, the CCMA has jurisdiction to arbitrate the dispute and the
arbitrating commissioner has jurisdiction
to determine the dispute
until such time as the certificate is reviewed and set aside. The
same approach was adopted in
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Another
and
in
Avgold-
Target Divisions v CCMA.
3
In both matters it
was held that the CCMA must determine its jurisdiction to conciliate
a dispute before proceeding to conciliate
the dispute and that once a
certificate is issued, this binds an arbitrator to arbitrate the
matter and it is only if the certificate
is reviewed and set aside
that the arbitrator is relieved of this obligation. Furthermore, rule
14 of the CCMA Rules provides that
if a jurisdictional dispute arises
at conciliation, the commissioner must require the referring party to
prove that the CCMA has
jurisdiction to conciliate.
[8]
A different approach to the issue is evident in
Bombardier
Transportation (Pty) Ltd v Mtiya and Others
4
in which Van
Niekerk J held that certain questions such as whether a person is an
independent contractor or an employee as defined
in section 213 of
the LRA fall within the power of the CCMA to determine in the course
of the arbitration proceedings and are not
necessarily to be
determined prior to conciliation taking place. In
Bombardier
Van Niekerk J
stated that the only true jurisdictional questions likely to arise at
conciliation 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.
[9]
The jurisdiction and powers of the CCMA arise from the Labour
Relations Act. Section 135(5) provides that when conciliation
has
failed, or at the end of the 30-day period or any further period
agreed between the parties, the commissioner must issue a
certificate
of outcome stating whether or not the dispute has been resolved
and serve a copy of
the certificate on each party to the dispute or person who
represented a party in the conciliation proceedings;
and file the
original of that certificate with the Commission. It is clear
therefore that section 135(5) requires only confirmation
that a
dispute has not been resolved within the time periods provided.
[10]
Section 191(5) provides that ‘if a council or a commissioner
has certified that the dispute referred remains unresolved,
or if 30
days have expired since the council or the Commissioner received the
referral and the dispute remains unresolved- (a)
the council or the
Commission must arbitrate the dispute at the request of the
employee’. Consequently, even where a certificate
has not been
issued, arbitration after the expiry of thirty days is mandatory if
required by the employee.
5
[11] The effect of the certificate of
outcome is that it permits a party to refer a dispute to arbitration
prior to the expiry of
the 30 day period; or confirms the resolution
of a dispute; or permits a party to give notice to strike or lock-out
in a matter
of mutual interest. Despite the contents of Rule 14,
where a jurisdictional issue has not been raised at conciliation, any
party
to a dispute referred to arbitration may raise any challenge at
arbitration.
Evaluation
[12]
The issue to be determined by this Court is whether the commissioner
committed a reviewable irregularity in issuing a certificate
of
outcome without determining whether an employment relationship
existed between the applicant and fourth respondent prior to
doing
so. I am satisfied that on an application of the legal principles set
out above and the judgment of this Court in
Bombardier
that the commissioner complied with
the provisions of section 135(5) of the Act in issuing a certificate
with the time periods provided
upon
the failure of conciliation in which the non-resolution of the
dispute is recorded.
[13]
Rule 14 of the CCMA rules requires of a commissioner to determine
whether the CCMA has jurisdiction to conciliate on a jurisdictional
challenge being raised at conciliation. I concur with Van Niekerk J
in
Bombardier
that the only true jurisdictional
questions likely to arise at conciliation, considering the provisions
of section 135, 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.
[14] In the circumstances, the failure
by a commissioner to determine whether an employment relationship
existed between the applicant
and the fourth respondent was not
incorrect and does not constitute a reviewable irregularity for
purposes of the current application.
Consequently, the application to
have the certificate of outcome reviewed and set aside on this basis
must fail.
[15] On the uncontested evidence
placed before this Court in the applicant’s founding affidavit,
it is apparent that the fourth
respondent was not employed by the
applicant and that no employment relationship accordingly exists
between the applicant and the
fourth respondent. The evidence shows
that the fourth respondent was, in fact, employed by Faranani and not
by the applicant. It
follows therefore, that in the absence of an
employment relationship between the applicant and fourth respondent,
the first respondent
has no jurisdiction over the applicant in
relation to the dispute referred under case number GATW10954-08.
Order
Accordingly, I make the following order:
[16] The application to review and set aside the certificate of
outcome issued under case number GATW10954-08 dated 24 November
2008
is dismissed.
[17] The fourth respondent was not employed by the applicant and the
first respondent accordingly lacks jurisdiction to arbitrate
the
dispute referred to it under case number GATW10954-08.
[18] There is no order as to costs.
_______________________
K M Savage
Acting Judge
APPEARANCES
FOR THE APPLICANT: L Hollander
Instructed by R da Silva, Edward Nathan Sonnenbergs
THIRD RESPONDENT: No appearance
1
(2008)
29
ILJ
2588
(LC).
2
(2000)
21 ILJ 2382 (LAC).
3
[2010]
2 BLLR 159
(LC).
4
JR
644/09 (11 March 2010).
5
Seeff
Residential Properties v Mbhele NO and Others (
2006)
27 ILJ 1940 (LC) at 1946A
.