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[2012] ZALCJHB 194
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Smit v Mthembu and Others (JR 2689/10) [2012] ZALCJHB 194 (16 April 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2689/10
DATE: 16 APRIL 2012
Not Reportable
Of Interest to Other
Judges
In the matter between:
GERRIT JOACHIM
SMIT
..........................................
Applicant
And
JB
MTHEMBU
.................................................
First
Respondent
SAFETY AND SECURITY SECTORAL
BARGAINING
COUCIL
..............................
Second
Respondent
SOUTH AFRICAN POLICE
SERVICE
............
Third Respondent
Heard: 22 March 2012
Delivered: 16 April 2012
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an application in terms of
s 158 of the Labour Relations Act 66 of 1995 (the LRA) to review and
set aside a ruling
made by the first respondent (the commissioner) to
the effect that the second respondent (the bargaining council) lacked
jurisidction
to arbitrate an unfair labour practice dispute between
the applicant and the third respondent.
The facts
[2] The material facts are not in
dispute. The applicant was employed by the third respondent between
1987 and 2008. He resigned
during 1992 and was re-employed in 2001.
He again resigned in May 2008. During 2009, the applicant sought to
withdraw his resignation,
and simultaneously applied for
re-enlistment in a letter addressed to the provincial commissioner on
24 February 2009. On 17 June
2009, the applicant was advised that it
was necessary to finalise the issue of his resignation before his
re-enlistment could be
considered. The provincial commissioner
declined to re-enlist the applicant, and disputes that any agreement
was reached on the
terms of which the applicant’s resignation
as to be accepted and his re-enlistment approved. The applicant
contends that
in August 2009, he was advised that the withdrawal of
his resignation would be processed, and that the period that he was
not in
service would be treated as unpaid leave. The applicant
contends further that the withdrawal of his resignation and his
reinstatement
into the service of the third respondent was confirmed
on the SAPS database.
[3] The crisp issue referred to
arbitration was therefore the existence or otherwise of an agreement
in terms of which the applicant
would be reinstated or re-employed by
the third respondent, and assuming the existence of an agreement,
whether the third respondent
was in breach of it.
The award
[4] At the arbitration hearing, the
third respondent raised a point in limine to the effect that the
bargaining council had no jurisidction
to determine the dispute
referrerd to it. The third respondent submitted that since there was
no longer an employment relationship
bewteen the parties, the council
lacked jurisidiction. The commissioner upheld the point. He
concluded:
‘It is apparent from the
documentary evidence that the Applicant resigned and subsequently
sought to withdraw his resignation.
However, the Respondent accepted
the resignation and declined the Applicant’s purported
withdrawal of it.
It is apparent from the aforegoing
that, at 17 June 2010, there was therefore no employment relatiosnhip
between the parties.
The present case is distinguishable
from the case in NS v SA Mutual Life Assurance Society Ltd t/a Old
Mutual & others [2001]
22 ILJ 1864 (LC). In this case the court
held that in an unfair Labour Practice Dispute (Residual Old Item 2
(1)(a) of Schedule
7 to the LRA 1995), where the employee resigns
before institution of proceedings in the Labour Court, there is no
basis in Law
or Equity, why the remedy sought in respect of the wrong
committed by the Employer is to be denied simply because the
relationship
came to an end. The right to relief comes intro
existence when the wrong is committed and not when action for relief
is instituted.
In the light of the aforegoing, the
point in limine should be upheld as the right to relief claimed came
into existence when there
was no longer an employment relationship
between the parties’
The applicable legal principles
[5] An application to review a
jurisdictional ruling is not determined on the basis of the
reasonableness test established in Sidumo
& another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC). In South
African Rugby Players Association & others v SA Rugby (Pty) Ltd &
others (2008) 29 ILJ 2218 (LAC), the LAC
held that in regard to a
commissioner’s finding on jurisdiction (in that case, the
existence of a dismissal), the question
is not whether the
commissioner’s finding was reasonable but whether on the facts
the applicants had been dismissed. The
basis of this approach is that
a ruling on jurisdiction made by the CCMA is made for convenience –
the CCMA is a creature
of statute and cannot decide its own
jurisdiction. Whether the CCMA (or, as in the present instance, a
bargaining council) has
jurisdiction is a matter for this court to
decide. In other words, the issue before this court is whether
objectively speaking,
having regard to the facts, the bargaining
council had the jurisdiction to entertain the dispute.
[6] As I understand it, the point
raised by the third respondent at the arbitration hearing was that
only a person defined as an
‘employee’ in s 213 of the
LRA is entilted to refer an unfair labour dispute to the appropriate
dispute resolution
agency. In this instance, the third respondent
contended that because the applicant had resigned in May 2008, he was
no longer
an employee and therefore not entilted to complain of an
unfair labour practice.
[7] The dispute referred to the
bargaining council was one that concerned an unfair labour practice
in the form of an alleged failure
or refusal to reinstate the
applicant in terms of an agreement. It is self-evident that a claim
of this nature will necessarily
be brought by a party who is not in
an employment relationship , or as the Act puts it, ‘a former
employee’ (own emphasis).
What a former employee seeks in these
circumstances is the restoration of the employment relationship in
terms of an agreement
to that effect for which the party contends.
The plain wording of s 186 (1) (c) entiltes a former employee in
these circumstances
to seek the enforcement of an agreement to
re-instate or re-employ. The existence or otherwise of the agreement
or the nature of
its terms (an issue that was canvassed by the third
respondent at the arbitration hearing) is a matter that goes to the
merits
of the claim, not to jurisidction.
[8] The commissioner’s ruling is
nothing less than absurd – its effect is to deny a remedy to
the very parties that
the Act seeks to protect. But it is not the
reasonableness of the commissioner’s decision that is at issue
– to succeed
in this application, the applicant must establish
the relevant jurisdictional facts. It is not disputed that the
applicant is a
former employee of the third respondent, nor is it
disputed that he contends for the existence of an agreemnt in terms
of which
he would be re-employed and that the third respondent
refuses to re-employ him.
[9] This is a matter where little
purpose would be served in setting aside the commissioner’s
ruling and remitting the matter
to the bargaining council for the
jurisdictional issue to be reconsidered. I intend to substitute the
commissioner’s ruling
and to remit the matter for arbitration
before a different commissioner on the merits.
Costs
[10] The applicant was not legally
represented, but I see no reason to deny him the reasonable costs
that he may have incurred in
bringing this application. The point in
limine raised by the third respondent at the arbitration hearing was
ill-advised, as was
the attempt to defend it in these proceedings.
Order
I accordingly make the following order:
1. The ruling made by the first
respondent on 1 September 2010 is reviewed and set aside.
2. The ruling is substituted by the
following:
“The bargaining council has
jurisidction to arbitrate the dispute referred by the applicant”.
3. The matter is remitted to the second
respondent for arbitration on the merits before a different
arbitrator.
4. The third respondent is to pay the
costs of these proceedings.
A van Niekerk J
Judge of the Labour Court of South
Africa
APPEARANCES
APPLICANT: In person
THIRD RESPONDENT: M Sello,
instructed by the state attorney