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[2011] ZALCCT 41
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Mickelet v Tray International Services and Administration (Pty) Ltd (C 717/10) [2011] ZALCCT 41 (6 September 2011)
Reportable
Of
interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 717/10
In the matter between:
CLAUDIA
MICKELET
.......................................................................
Applicant
and
TRAY
INTERNATIONAL
SERVICES
AND ADMINISTRATION (PTY) LTD
........................
Respondent
Heard
:
24 August 2011
Delivered
:
6 September 2011
Summary:
In limine
–
jurisdiction of
Bargaining Council – certificate of non-resolution issued –
not taken on review – jurisdiction
to conciliate to be decided
by Labour Court prior to trial as point
in limine.
JUDGMENT
STEENKAMP J
Introduction
The respondent in this matter raised a point
in limine
that
the Court does not jurisdiction to hear the dispute, as the
Bargaining Council that issued a certificate of non-resolution
did
not have the jurisdiction to conciliate; and hence that it was not
conciliated as required in section 191(1) of the Labour
Relations
Act.
1
The argument raises the question whether the respondent should have
sought to review the issuing of the certificate by the Bargaining
Council, or whether it is properly raised in this Court as a
preliminary point; and if the latter, whether this Court can
determine
the point.
Background
The applicant, Ms Claudia Mickelet (“the employee”) was
dismissed by the respondent for operational requirements.
She
referred an unfair dismissal dispute to the National Bargaining
Council for the Road Freight Industry (“the Bargaining
Council”) for conciliation on 31 March 2010.
The respondent’s Human Resources Manager, Ms Michelle
Friedman, contacted a case management officer at the Bargaining
Council, Mr Yondi Mwele, on 6 May 2010. She advised him that the
respondent’s business does not fall within the scope of
the
road freight industry. She informed Ms Mickelet (the employee)
accordingly and confirmed all of this in a fax to the Bargaining
Council on the same day.
On 18 May 2011 the Bargaining Council sent the parties a notice of
set down for a point
in limine
to be heard on 8 June 2010.
The notice does not specify what that point is. The respondent’s
Friedman wrote to Mweli by
email on 18 May, pointing out again that
“Tray International does not belong to the Road Freight
Industry”.
Mweli replied the next day and clarified that the matter was only
set down for the point in limine. He said:
“
The
reason for that is, we explained to the applicant what the company’s
core function of their business is as according to
you, but the
applicant insisted that the company is involved in transportation of
goods for hire...
So,
on that day a point in limine will be dealt with to determine whether
we have jurisdiction on this issue or not and then the
commissioner
will issue a jurisdictional ruling to get the matter referred to the
CCMA or any relevant institution to deal with
the matter.”
At the hearing on 8 June 2010, Ms Friedman repeated her submissions
– backed up by information from the Companies and Intellectual
Property Commission (or CIPRO, as it then was) – that the
activities of the company do not fall within the scope of the
Bargaining Council.
Nevertheless, the commissioner, Koos Kitshoff, did not issue a
jurisdictional ruling. Instead, he issued a certificate stating
that
the matter remained unresolved and had to be referred to the Labour
Court.
The employee accordingly referred the matter to this Court. The
parties held a pre-trial meeting and recorded in the pre-trial
minute dated 4 March 2011 that:
“
Respondent
avers that the above Honourable Court has no jurisdiction to consider
the Applicant’s alleged unfair dismissal
dispute on account of
the dispute not having been conciliated in terms of section 191(1)(a)
of the LRA.”
That point
in limine
was then set down for hearing in this
Court on 24 August 2011.
Relevant legal principles
In terms of section 191(1)(a), the Bargaining Council only had
jurisdiction to conciliate the dispute if the parties to the dispute
fell within its registered scope. That section states:
“
If
there is a dispute about the fairness of a dismissal, the dismissed
employee may refer the dispute in writing within 30 days
of the date
of dismissal to –
a council, if the parties to
the dispute fall within the registered scope of that council; or
the Commission, if no council
has jurisdiction.”
In
Fidelity Guards Holdings (Pty) Ltd v Epstein NO & others
2
the Labour Appeal Court considered the late referral of a dispute to
conciliation. The commissioner issued a certificate in terms
of s
135 of the LRA that the matter remained unresolved and the dispute
was referred to arbitration. After the arbitration award
had been
issued, the employer party applied to have it reviewed and set aside
on the merits as well as on the jurisdictional
point that the
referral had been out of time, there was no application for
condonation, and therefore the commissioner did not
have the
jurisdiction to arbitrate.
In dealing with the jurisdictional point, Zondo JP said:
3
“
In
my view the language employed by the legislature in s 191 is such
that, where a dispute about the fairness of a dismissal has
been
referred to the CCMA or a council for conciliation, and the council
or commissioner has issued a certificate in terms of s
191(5) stating
that such dispute remains unresolved or where a period of 30 days has
lapsed since the council or the CCMA received
the referral for
conciliation and the dispute remains unresolved, the council or the
CCMA, as the case may be, has jurisdiction
to arbitrate the dispute.
That the dispute may have been referred to the CCMA or council for
conciliation outside the statutory
period of 30 days and no
application for condonation was made or one was made but no decision
on it was made does not affect the
jurisdiction to arbitrate as long
as the certificate of outcome has not been set aside. It is the
setting aside of the certificate
of outcome that would render the
CCMA or the council to be without the jurisdiction to arbitrate.”
He went on to state
4
that a party who objects to the processing of the dispute, should
institute review proceedings within a reasonable time.
Van Niekerk J considered the effect of
Epstein
in the recent
case of
Bombardier Transportation (Pty) Ltd v Mtiya NO &
others.
5
He noted
6
that
Epstein
is concerned only with the proposition that a
failure to review an administrative act timeously may result in that
act acquiring
the force of law (in the sense that it will not be
susceptible to review) even though the act is invalid and unlawful.
In a case such as the present one, though, where a commissioner
issues a certificate of outcome without having resolved a
jurisdictional
challenge, Van Niekerk J took a different approach in
Bombardier.
7
After considering his earlier judgment in
Goldfields Mining SA
(Pty) Ltd (Kloof Gold Mine) v CCMA & others
8
he summarised the position as follows:
“
In
other words, a certificate of outcome is no more than a document
issued by a commissioner stating that, on a particular date,
a
dispute referred to the CCMA for conciliation remained unresolved. It
does not confer jurisdiction on the CCMA to do anything
that the CCMA
is not empowered to do, nor does it preclude the CCMA from exercising
any of its statutory powers. In short, a certificate
of outcome has
nothing to do with jurisdiction. If a party wishes to challenge the
CCMA's jurisdiction to deal with an unfair dismissal
dispute, it may
do so, whether or not a certificate of outcome has been issued.
Jurisdiction is not granted or afforded by a CCMA
commissioner
issuing a certificate of outcome. Jurisdiction either exists as a
fact or it does not.”
The learned judge also noted that, instead of making a ruling on
jurisdiction at conciliation stage, a conciliating commissioner
may
defer the challenge to the arbitration stage.
I agree with this approach. Commissioner Kitshoff did not make a
jurisdictional ruling. Although one may be tempted to imply
from his
issuing a certificate that he assumed jurisdiction, one could also
infer that he implicitly decided to defer the decision
on
jurisdiction. The only reason why the dispute has been referred to
this Court for adjudication and not to a Bargaining Council
arbitrator, is because it relates to a dismissal for operational
requirements. I therefore find myself in the same position as
an
arbitrator who has to decide whether the bargaining council or the
CCMA had jurisdiction to hear an unfair dismissal dispute.
This is not a case such as the one in
Epstein
where the
employer remained silent until the review stage to raise a
jurisdictional challenge. The employer in this case raised
it
upfront; and the Bargaining Council set the jurisdictional question
down for hearing as a point
in limine
accordingly.
Unfortunately, though, Commissioner Kitshoff did not rule on it. As
Van Niekerk J remarked in
Bombardier
, the fact that the
commissioner issued a certificate of outcome did not confer
jurisdiction on the Bargaining Council.
Conclusion
On the facts presented by the respondent, it is clear that its
operations do not fall within the scope of the Bargaining Council.
The Council did not have jurisdiction to conciliate the dispute. It
follows that this Court does not have jurisdiction to hear
the
unfair dismissal dispute at this stage.
Costs
The effect of this judgment is that it will inevitably lead to a
delay in adjudicating the merits of the dispute. Unfortunate
as it
is, the employer party cannot be blamed for that delay, though. It
raised the jurisdictional issue upfront. The fact that
the
conciliating commissioner did not rule on the question, despite it
having been set down for hearing on that preliminary point,
is not
the respondent’s doing.
This judgment does not mean that the employee is without a remedy
because of a technical point. This Court cannot assume jurisdiction
where it has none. The employee may still refer a fresh dispute to
the CCMA, together with an application for condonation.
In these circumstances, neither party should be held liable for the
other’s costs.
Order
The point
in limine
is upheld. This Court has no jurisdiction
to hear the unfair dismissal dispute.
There is no order as to costs.
_______________________
Anton Steenkamp
Judge
APPEARANCES
APPLICANT: André le Roux
Instructed by Africa & Associates, Woodstock.
RESPONDENT: Wayne Field
of Bernadt Vukic Potash & Getz, Cape Town.
1
Act
66 of 1995 (“the Act”).
2
(2000)
21
ILJ
2382
(LAC)
3
Epstein
(supra)
para [12].
4
At
para [15]
5
(2010)
31
ILJ
2065
(LC).
6
At
para [9].
7
Supra
para [14].
8
(2010)
31
ILJ
371
(LC);
[2009] 12 BLLR 1214
(LC).