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[2012] ZALCCT 5
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Pienaar v Stellenbosch University and Another (C 354/2011) [2012] ZALCCT 5; (2012) 33 ILJ 2445 (LC) (13 February 2012)
REPUBLIC OF SOUTH AFRICA
Reportable
Of
interest to other judges
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
case
no: C 354/2011
In the matter between:
ABEL JACOBUS PIENAAR
Applicant
and
STELLENBOSCH UNIVERSITY
First respondent
PROF U CHIKTE
Second respondent
Heard
:
8 February 2012
Delivered
:
13 February 2012
Summary:
Referral to Labour Court – incorrect indication
by CCMA commissioner on certificate of non-resolution –
proceedings
stayed and referred to arbitration in terms of s
158(2)(a) of LRA.
JUDGMENT
STEENKAMP J
INTRODUCTION
This application raises the question what the court should do in
circumstances where the CCMA issued a certificate that an unfair
dismissal dispute remained unresolved and indicated that the
applicant should refer the dispute to the Labour Court, whereas
the
dispute was one contemplated in s 186(1)(a) of the LRA and should
have been referred to arbitration. The commissioner also
failed to
make a ruling on the question whether the applicant was an employee.
The applicant, on the basis of the certificate,
applied to the
Labour Court for a declaratory order that he “had a valid
contract” with the respondents; an order
that his dismissal
was unlawful; and an order reinstating him.
Background facts
The Applicant was engaged by the first respondent, Stellenbosch
University, to render services to its Nursing Division (Departement
Verpleegkunde). On the University’s version, he was engaged as
an independent contractor to render services on an
ad hoc
basis; on the applicant’s version, he was an employee of the
University.
On 19 January 2011, the University notified the Applicant that his
services were no longer required.
The Applicant referred an unfair dismissal dispute to the Commission
for Conciliation, Mediation and Arbitration (the CCMA).
In the
referral form
1
he indicated that the dispute concerned “unfair dismissal”;
and he completed Part B of the form, with the heading
“Additional
form for dismissal disputes
only
2
.”
He indicated that he was informed of his dismissal in writing. It is
perhaps pertinent to note that the applicant was
being assisted by
his attorney of record, Mr M.I.
Ramalotse
of Matsobane
Ramalotse Inc at that stage already. Indeed, the contact details
given for the applicant in the referral form are
those of his
attorneys.
The dispute was conciliated on 30 March 2011. It could not be
resolved and the conciliating commissioner, Mr JJ Kitshoff, issued
a
certificate of outcome indicating that the dispute could be referred
to the Labour Court.
The Applicant, represented by his attorneys of record, delivered an
application to this Court on 6 June 2011. The Notice of Motion
described the application as follows:
“
An
application in terms of section 158(1) read together with
section 185
of the
Labour Relations Act 66 of 1995
.”
The Applicant asked this Court to make an order in the following
terms:
“
1.
That the Applicant had a valid contract with the Respondents.
2. That the dismissal of the
Applicant by the Respondents is unlawful.
3. That the Applicant be
reinstated under the same conditions as before with immediate effect.
4. That the Respondents to pay
[sic] the costs of this application.
5. Further and / or alternative
relief.”
The applicant further notified the respondents – ie the
University and Prof Chikte – to “remit the record of
proceedings leading to the issuing of the ruling sought to be
reviews” [
sic
] to the Registrar; and that the applicant
would, “within ten days of such record being filed ... amend
its notice of motion
to supplement its affidavit or issue a notice
of motion and affidavit” [
sic
].
SPECIAL PLEAS
The University raised three special pleas:
The misjoinder of the Second Respondent;
The absence of jurisdiction of this Court in relation to the
Applicant’s unfair dismissal cause of action; and
The Applicant’s attempt to bring this matter by way of motion
proceedings.
The Misjoinder of the Second Respondent
The Applicant joined the Second Respondent, Prof Usuf Chikte, as a
party to the proceedings. Prof Chikte is an employee of the
University.
Mr
Ramalatso
argued that Prof Chikte had been joined to these
proceedings because he took the decision to terminate the
Applicant’s
employment after the applicant had refused to
desist from communicating with the then head of the Nursing
Division, Prof Cheryl
Nikodem, who had been suspended. Mr
Ramalatso
could provide no basis for this contention when I asked him to point
me to the relevant evidence in oral argument, as I could
find no
such evidence on the papers. The University dealt with this
allegation in its Answering Affidavit where it indicated
that it was
not Prof Chikte that had terminated the Applicant’s
relationship with the University, but the HR Manager, Mr
Louis
Siebert – acting on behalf of the University -- who had
informed the Applicant on 19 January 2011 that his services
were no
longer required.
Mr
Ramalatso
cited
Rosebank Mall (Pty) Ltd v Cradock
Heights (Pty) Ltd
2003 (4) All SA 471
in his heads of argument
3
in support for the joinder of Prof Chikte. But that case expressly
confirms the trite principle that only parties that would
be
directly affected by the Court’s order are necessary parties
to the proceedings.
In order for parties to be joined to particular proceedings, they
must have a direct and substantial legal interest in the matter
such
as to make them necessary parties to the proceedings. Prof Chikte
has no such interest. He should not have been joined to
these
proceedings and the application stands to be dismissed as against
the Second Respondent, with costs.
Jurisdiction of the Labour Court in the unfair dismissal claim
It is apparent from the Notice of Motion that the cause of action on
which the Applicant relies in instituting these proceedings
is an
alleged unfair dismissal. Although the relief sought in paragraph 1
of the Notice of Motion is formulated as declaratory
relief
concerning the status of the Applicant’s contract of
employment, it is apparent that this is merely ancillary to
the
further relief sought in paragraphs 2 and 3 of the Notice of Motion.
These paragraphs, taken with the reference to section
185 of the
Labour Relations Act 66 of 1995 (“the LRA”) in the
heading of the Notice of Motion, indicate that the
Applicant’s
cause of action in these proceedings is the right not to be unfairly
dismissed.
The unfair dismissal claim was initiated by the Applicant’s
referral of a dispute to the CCMA.
4
He alleged that he was unfairly dismissed by the University on
24 January 2011. The unfair dismissal dispute was
conciliated on 23 February 2011.
An employee may refer an unfair dismissal dispute to this Court only
in the circumstances set out in section 191(5)(b) of the
LRA. The
Applicant has made no allegations in the founding papers that would
bring the dispute within the ambit of those provisions,
and
consequently this Court does not have jurisdiction to determine the
dispute which the Applicant has sought to refer to it.
When he issued a certificate that the dispute was unresolved, the
conciliating commissioner indicated (by ticking the relevant
box on
the certificate) that the Applicant could refer the matter to the
Labour Court. But the certificate of outcome is merely
a recordal of
the fact that conciliation has been attempted and has failed to
resolve the dispute. The commissioner’s categorisation
of the
dispute and his view and indication of the appropriate forum for
adjudication is not binding on any party to the dispute
and has no
legal or jurisdictional consequence.
This view is confirmed by two decisions of the Labour Court by Van
Niekerk J. In
Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v
CCMA & others
[2009] 12 BLLR 1214
(LC) the learned judge
referred to two earlier decisions of the Labour Appeal Court, namely
Wardlaw v Supreme Mouldings (Pty) Ltd
(2007) 28
ILJ
1042 (LAC) and
NUMSA v Driveline Technologies (Pty) Ltd &
another
(2000) 21
ILJ
142 (LAC) in support of his view
that the CCMA or the Labour Court assumes provisional jurisdictional
upon the referral of a
matter and once the body has heard all the
evidence, decides on jurisdiction.
Van Niekerk J pointed out a further reason why a conciliating
commissioner should not be permitted or required to make a
jurisdictional
ruling based on the reason for dismissal as
categorized by the referring party. He was of the view that it is
the referring party’s
right to frame an unfair dismissal claim
in any way he or she deems fit and that it was not for the
commissioner or the employer
to decide for that party how the claim
should be formulated and which forum should hear the dispute. (at
para 17) The learned
judge cited the dictum of the LAC in the
Drivelines
case
supra
where it was held that:
“
It is
also not for example, the conciliating commissioner to whom the Act
gives the power to refer a dismissal dispute to the Labour
Court.
That right is given to the dismissed employee. (See s191(5)(b)). If
the employee, and not the conciliating commissioner,
has the right to
refer the dispute to the Labour Court, why then should the employee
be bound by the commissioner’s description
of the dispute?”
This decision was endorsed by Van Niekerk J’s ruling in the
subsequent case of
Bombardier Transportation (Pty) Ltd v Mtiya NO
& others
[2010] 8 BLLR 840
(LC). In this case and based on
his decision in
Goldfields
, he held that there was a third
approach to the question of the validity of a certificate of outcome
in the face of jurisdictional
challenges. He suggested that not all
jurisdictional challenges raised in CCMA proceedings involved
jurisdictional challenges
in the true sense. The learned judge
suggested that the distinction to be drawn is between facts which
the Legislature has decided
must exist before the CCMA acquires
power to act and facts which must be proved by the applicant party.
In his view, the latter
should be decided in the arbitration phase.
5
I aligned myself with the views expressed by Van Niekerk J in these
cases, in the subsequent decision of
Mickelet v Tray
International (Pty) Ltd.
6
I do so again.
The University has not consented to the Labour Court determining
this matter as if it were an arbitration in terms of s 158(2)(b)
of
the LRA. However, if at any stage after a dispute has been referred
to the Labour Court, it becomes apparent that the dispute
ought to
have been referred to arbitration, the Court may stay the
proceedings and refer it to arbitration in terms of section158(2)(a)
of the LRA.
That is what I intend to do. This Court lacks jurisdiction to
determine the dispute referred to it. However, even though Mr
Abrahams
submitted that the application falls to be dismissed
with costs for this reason alone, it is apparent that disputes of
fact exist.
Those disputes should be tested by way of oral evidence.
I also bear in mind that the applicant and his attorneys may have
been
confused by the conciliating commissioner’s
mischaracterization of the dispute.
The procedure used by the Applicant
Not only has the Applicant referred his dispute to the wrong forum,
he has also improperly brought his claim by way of motion
proceedings.
Furthermore, and assuming that he could do so, the Applicant has
brought his claim by way of review in terms of section 158 of
the
LRA. It is submitted that there are no grounds in law on which the
Applicant can challenge the fairness of his dismissal
by way of
judicial review, and that the Applicant has adopted an incorrect
procedure.
However, given the view that I have taken of the further conduct of
this matter, I need not discuss the improper referral any
further.
The applicant will be able to ventilate his dispute in the proper
forum by way of oral evidence.
Costs
The question of costs remains. Mr
Abrahams
submitted that,
given the conduct of the Applicant and its attorneys, punitive costs
should be awarded on the attorney and own
client scale. I do not
agree. The applicant has been badly advised, but the conciliating
commissioner’s indication that
the matter should be referred
to the Labour Court contributed to his attorney’s confusion.
In law and fairness
7
,
the applicant should pay the respondents’ costs, but not on a
punitive scale.
The conduct of the applicant’s attorney does warrant a costs
order in his personal capacity in one respect, though. He
failed to
file a practice directive in accordance with the Consolidated
Practice Directive of 2010. That Directive has been in
force in this
Court since September 2010, ie for some 17 months. Clause 9.2
provides that, if the applicant’s attorney
or counsel does not
file the requisite practice note, the respondent party may do so
“and may seek a special costs order
therefor”. That is
what Mr
Abrahams
has done, and Mr
Ramalotse
could
provide no reason why this request should not be granted.
Order
I therefore make the following order:
The proceedings between the applicant and the first respondent are
stayed and referred to the CCMA for oral evidence in order
to
decide whether the applicant was an employee of the University;
and, if necessary, to decide whether his dismissal was fair.
The application against the second respondent is dismissed.
The applicant is ordered to pay the respondents’ costs.
The applicant’s attorney is ordered to pay the costs
occasioned by the filing of a practice note in accordance with the
Judge President’s Consolidated Practice Directive 2010
de
bonis propriis.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
MI Ramalotso
of Matsobane
Ramalatso attorneys, Pretoria.
RESPONDENTS
E Abrahams
of Bowman Gilfillan
Inc, Cape Town.
1
Form
7.11.
2
Underlining
as in printed form.
3
He
did not attach a list of authorities to his heads of argument as
required by Rule 18(2).
4
As
I pointed out, he was already represented by his attorneys of record
at that stage.
5
Paras
[13] – [14].
6
(C
717/10, unreported, Labour Court Cape Town, 6 September 2011).
7
LRA
s 162.