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[2012] ZALCCT 47
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PSA obo Liebenberg v Department of Defence and Others (C 938/2011) [2012] ZALCCT 47; (2013) 34 ILJ 1769 (LC); [2013] 8 BLLR 804 (LC) (30 November 2012)
Reportable
Of interest to other judges
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Case
no: C 938/2011
In the matter between:
PSA (obo L LIEBENBERG)
Applicant
and
DEPARTMENT OF DEFENCE
First Respondent
PUBLIC SERVICE CO-ORDINATING BARGAINING COUNCIL
Second Respondent
ADV WF MARITZ N.O.
Third Respondent
Heard
:
22 November 2012
Delivered
:
30 November 2012
Summary:
Application of collective agreement –
jurisdiction of bargaining council.
PSA obo De Bruyn v Minister of
Safety and Security
followed;
Minister of Safety &
Security v SSSBC
distinguished.
JUDGMENT
STEENKAMP J
Introduction
[1] This review application is unusual in the sense that the parties
agree that the arbitrator’s ruling is not sustainable
and
should be reviewed, set aside and substituted. However, they differ
as to the nature of the substituted order.
[2] The dispute turns on the question whether or not the second
respondent (the Bargaining Council) had jurisdiction to entertain
the
dispute that the applicant referred. That question, in turn, depends
on the question whether the dispute can properly be categorised
as a
dispute over the application of a collective agreement as envisaged
in section 24 of the Labour Relations Act
1
;
or whether the true nature of the dispute is one for substantive
relief in which the application of the agreement is merely a
matter
in the dispute.
[3] Both parties seek to review and set aside a jurisdictional ruling
by the arbitrator (the third respondent, Adv Bill Maritz))
in which
he held that the Bargaining Council did not have jurisdiction to
entertain the dispute that the applicant (the PSA acting
on behalf of
its member, Ms L Liebenberg) had referred to it. The PSA seeks a
substituted ruling that the Bargaining Council does
have
jurisdiction. The first respondent, the Department of Defence, seeks
a substituted ruling that the Bargaining Council does
not have
jurisdiction, but for different reasons from those advanced by the
arbitrator.
Background facts
[4] The broader dispute between the parties turns on a collective
agreement of the Bargaining Council, Resolution 7 of 2000.
2
The resolution deals with temporary incapacity leave, commonly
referred to as “’TIL” by the parties.
[5] The parties have encountered a mutual problem whereby the
Department is faced with a large number of applications for temporary
incapacity leave from its employees.
[6] Where members of the PSA, such as Ms Liebenberg, have been
unsuccessful in their applications for TIL, the PSA has referred
a
dispute to the Bargaining Council in terms of section 24 of the LRA
as a dispute over the application of a collective agreement.
It is
the union’s view that, where the Department fails to timeously
assess and determine such applications, it amounts to
a failure to
apply the resolution and the Bargaining Council has jurisdiction to
consider the dispute in terms of section 24 of
the LRA.
[7] Section 24(1) of the LRA provides that:
“
Every
collective agreement… must provide for a procedure to resolve
any dispute about the interpretation or application of
the collective
agreement. The procedure must first require the parties to attempt to
resolve the dispute through conciliation and,
if the dispute remains
unresolved, to resolve it through arbitration.”
[8] The resolution
3
provides for the following process for TIL:
“
(a) An
employee whose normal sick leave credits in the cycle have been
exhausted and who, according to the relevant practitioner,
requires
to be absent from work due to disability which is not permanent, may
be granted sick leave on full pay, provided that:
her
or his supervisor is informed that the employee is ill; and
a
relevant registered medical and/or dental practitioner has duly
certified such a condition in advance, as temporary disability,
except with conditions do not allow.
(b) The employer shall, during
30 working days, investigate the extent of the inability to perform
normal official duties, the degree
of inability and the cause
thereof. Investigations shall be in accordance with item 10 (1) of
schedule 8 in the Labour Relations
Act of 1995.
(c) The employer shall specify
the level of approval in respect of applications for disability
leave.”
[9] The parties are
ad idem
that the Department has to
investigate
and decide on
an application for TIL within 30
days.
[10] Ms Liebenberg exhausted her sick leave credits and applied for
TIL in terms of the resolution. Her application was refused,
but the
Department only notified her of the refusal more than 2 ½
years after she applied (instead of 30 days). The PSA
then referred a
dispute to the Bargaining Council on her behalf. The nature of the
dispute was described as the application of
a collective agreement,
i.e. PSCBC Resolution 7 of 2000. The outcome required was that TIL be
approved for the period of 5 to 7
November 2008.
4
[11] The Department raised a preliminary point that the Bargaining
Council did not have jurisdiction to consider that the dispute.
It
argument was based on the decision of the Labour Appeal Court in
Minister of Safety & Security v SSSBC and Others
5
(“SSSBC”).
In short, the Department argued that
the interpretation and application of the resolution was only an
“issue in the dispute”
and that the real dispute was
whether it was fair for the Department to have refused Liebenberg’s
TIL application.
The jurisdictional ruling
[12] Under the heading, “analysis”, the arbitrator came
to the following conclusions:
12.1. The granting of temporary incapacity leave is discretionary.
The department is entitled “to set out the basis on which
it
would be granted, including the procedures to be followed.”
12.2. The resolution must be interpreted with regard to the
additional processes introduced by the Minister.
12.3. He was bound to follow the
SSSBC
decision which, in his
view, “restricts the application of section 24 to the
interpretation and application of collective
agreements.” He
found that the “necessary implication” of the judgement
in SSSBC was that he was precluded from
interpreting any aspect of
the resolution “in so far as it has been enhanced by the
Minister acting within his powers”
– referring to a
directive that the Minister of Public Service and Administration,
acting in terms of section 41(3) of the
Public Service Act
6
,
issued on 30 November 2000 in order to implement the resolution. That
directive
7
confirms that the investigation
and
decision must take place
within the 30 day period contemplated by the resolution.
12.4. Whilst the Department had not acted within the 30 day period
contained in the resolution, the action taken by the employer
had to
be “considered to be in two phases”. The arbitrator
considered the “second phase” to be the investigation
by
SOMA
8
.
He considered the 30 day period to be too short for the
investigation.
12.5. Even if it was “unfair” for the Department not to
revert to Ms Liebenberg within 30 days, he was not persuaded
that he
could make an order for compensation, “which is not based on an
interpretation of the collective agreement”.
[13] The arbitrator then made the following ruling:
“
1. For
a proper interpretation of the process related to resolution 7 of
2000, it would be necessary to take into account the Directives
of
the Minister that has been made applicable to any application for
temporary disability leave.
2. There is no basis for finding
that the directives of the Department have been incorporated into the
resolution and have become
part of the collective agreement.
3. On that basis I am, in terms
of the decision in Minister of Safety and Security v SSSBC and Others
(noted above), not entitled
to interpret in terms of section 24 of
the LRA the entire process which is not part of the collective
agreement.
4. Even if I could come to the
conclusion that ignoring the 30 day rule mentioned for investigations
in terms of the Resolution
is a contravention of the Resolution I am
of the opinion that an arbitrator would not have the power to award
compensation based
on the very issue that he is precluded from
considering.
5. For the above reasons, I have
come to the conclusion that I should uphold the objection to
jurisdiction and dismiss the application,
and it is ordered
accordingly.”
The review
[14] The parties agree that the arbitrator misconstrued the nature of
the enquiry before him. They agree that the resolution is
a binding
collective agreement that spells out the procedure that the
Department must follow when considering TIL applications.
It is not
in dispute that it must investigate and pronounce upon the
application within 30 working days. There is no basis for
the
arbitrator’s finding that he was precluded from considering the
resolution because the directives of the Department had
not been
incorporated into the resolution.
[15] The fact that the Department outsourced the assessment of TIL
applications to SOMA is entirely irrelevant to the dispute.
The fact
that the arbitrator considered the investigation period to be “too
short for the investigation to be done by SOMA”
was not part of
the dispute before him. In considering and pronouncing upon this
aspect he exceeded his powers and acted irrationally.
[16] On both of these grounds the review must succeed. The more
pertinent question is whether the
SSSBC
decision in any event
deprived the Bargaining Council of jurisdiction. I shall consider
this question under the discussion of the
application for
cross-review.
The cross-review
[17] The Department agrees that the 30 day period is not
discretionary; and that the
SSSBC
decision does not constitute
authority for the arbitrator’s finding that he was precluded
from considering the directives
of the Department. It also agrees
that the arbitrator’s finding that the 30 day period was too
short for an investigation
by SOMA is irrelevant.
[18] The Department, instead, advanced two
9
grounds of review in its cross-review application:
[18.1. The arbitrator should have considered and upheld the
Department’s reason why the Bargaining Council lacked
jurisdiction,
namely that the true dispute that needed to be resolved
was the Department’s decision to refuse Liebenberg’s
application
for TIL, and not the interpretation or application of a
collective agreement.
18.2. The arbitrator should have considered and uphold the
Department’s submission at the Bargaining Council that the
second
reason why the Bargaining Council lacked jurisdiction, is
because Ms Liebenberg did not initiate or exhaust the internal
grievance
procedure.
[19] The Department submitted that the dispositive issue for
determination before this court is whether the nature of the dispute
before the Bargaining Council is the application of Resolution 7 of
2000, or the Department’s failure to grant Ms Liebenberg
temporary incapacity leave. If the true nature of the dispute is the
application of the resolution, the Bargaining Council does
enjoy
jurisdiction. But if the real dispute is the Department’s
refusal to grant Ms Liebenberg TIL, it submits that the Bargaining
Council does not have jurisdiction to consider that dispute.
[20] The Department further submits that the Department’s
decision not to grant TIL can be brought within the scope of the
unfair labour practice dispensation, in terms of section 186(2)(a) of
the LRA and that the PSA should have followed that route.
If it were
to be correct, though, that would not deprive the Bargaining Council
of jurisdiction; the Bargaining Council explicitly
has jurisdiction
to consider unfair labour practice disputes. Insofar as it goes to
jurisdiction, therefore, this ground of cross-review
is misguided.
Evaluation / Analysis
[21] I agree that the real question for determination is the true
nature of the dispute; and the precedent established by the Labour
Appeal Court in
SSSBC
and other cases. I also agree with both
parties that there would be little point in remitting the
jurisdictional question to the
Bargaining Council and that this court
is in a position to substitute its own decision for that of the
arbitrator.
[22] This court is bound by the principle of
stare decisis
; I
thus have to consider whether the
SSSBC
decision is in point,
and whether the import of that decision is to oust the jurisdiction
of the Bargaining Council on the facts
before it in this dispute.
Subsequent to the arbitration (and the filing of the parties’
heads of argument), though, the
LAC’s judgment in
PSA obo De
Bruyn v Minister of Safety & Security
10
(“De Bruyn”)
was reported. I shall also consider
the import of that judgment on the facts of this case, bearing in
mind that both judgments
emanate from the LAC and are binding on this
Court.
[23] In
SSSBC,
the employee applied for a transfer within the
South African Police Services (SAPS). It was refused. He referred a
dispute about
the interpretation and application of a collective
agreement
11
dealing
with SAPS’s transfer policy and procedures to the
Safety
& Security Sectoral Bargaining Council (SSSBC). He challenged the
decision of SAPS to refuse his application for transfer.
The issue
before the LAC was whether the SSSBC had jurisdiction to deal with
the dispute. And that issue had to be determined by
how the court
answered the further question, whether or not the arbitrator
correctly classified the dispute before him as one concerning
the
interpretation and application of a collective agreement. It was
accepted by both parties that, if the dispute was a dispute
about the
interpretation or application of a collective agreement, the SSSBC
had jurisdiction in respect of the dispute; but that,
if the dispute
was about the fairness of the transfer, the SSSBC did not have
jurisdiction.
[24] On the same day as it handed down judgment in
SSSBC,
the
LAC handed down judgment in
Johannesburg
City Parks v Mpahlani NO & others
12
(“City Parks”).
In
City Parks
13
the court offered the following explanation
between “a dispute” and “an issue in a dispute”:
“
[14]
There are a number of areas in the LRA with references to disputes or
proceedings that are about the interpretation or application
of
collective agreements, particularly in provisions that deal with
dispute resolution. Some of the sections of the LRA which contain
such references are ss 22 and 24. In all of those sections the
references to disputes about the interpretation or application of
a
collective agreement are references to the main disputes sought to be
resolved and not to issues that need to or may need to
be answered in
order to resolve the main dispute. Let me make an example to
illustrate the distinction that I seek to draw between
a
dispute
and
an
issue in a dispute
.
One may have a situation where an employee is dismissed for
operational requirements and that dismissal is challenged as unfair
because it is said that in terms of a certain collective agreement
the employer was supposed to follow a certain
procedure
before dismissing the employee but did not follow such procedure. In
such a case, in determining whether the dismissal was fair
or unfair,
the Labour Court would have to determine whether the relevant
provisions of the collective agreement were applicable
to that
particular dismissal. The employer may argue that, although the
collective agreement is binding on the parties, the particular
clause
did not apply to a particular dismissal. This means that the Labour
Court has to interpret and apply the collective agreement
in order to
resolve the dispute concerning the fairness or otherwise of the
dismissal for operational requirements. So, the real
dispute is about
the fairness or otherwise of the dismissal and the issue of whether
certain clauses of the collective agreement
are applicable and/or
compiled with before the employer was dismissed is an issue necessary
to be decided in order to resolve the
real dispute.
[15] In the above example it
cannot be said, for example, that the Labour Court has no
jurisdiction to adjudicate the dispute concerning
the dismissal for
operational requirements and it must be referred to arbitration just
because, prior to or in the course of, resolving
the dismissal
dispute, the issue concerning the interpretation or application of
certain clauses of the collective agreement must
be decided. It would
be different, however, where the main dispute, as opposed to an issue
in a dispute, is the interpretation
or application of a collective
agreement. In the latter case the Labour Court would ordinarily not
have jurisdiction in respect
of the dispute and the dispute is
required to be resolved through arbitration in terms of the LRA.
[16] The proposition advanced by
counsel for the appellant made no distinction between a dispute, on
the one hand, and an issue
in a dispute, on the other. That is why
the appellant's counsel was driven to submit that all disputes which
are dealt with by
a bargaining council are disputes about the
application of a collective agreement because the procedures for
dealing with such
disputes are provided for in a collective
agreement. Obviously, this proposition can simply not be correct. In
bargaining councils,
proceedings are held that are about all kinds of
disputes such as proceedings about dismissal disputes, proceedings
about disputes
concerning the interpretation or application of
collective agreements, proceedings concerning disputes about
organizational rights,
proceedings about wage disputes and
proceedings concerning other disputes.”
[25] In
SSSBC
, the court applied the same reasoning. It found
that the dispute that was before the arbitrator in that case was a
dispute concerning
the fairness or otherwise of SAPS’s refusal
to approve the employee’s application or request for a transfer
and the
application of the provisions of the collective agreement was
an issue in dispute. It was an issue which had or may have had to
be
dealt with in order to resolve the real dispute. That is the main
dispute. The dispute itself did not relate to an application
of the
collective agreement. The court concluded that the Bargaining Council
did not have jurisdiction to arbitrate the dispute
because that was a
dispute concerning the fairness or otherwise of the decision not to
approve the employees application for a
transfer.
[26] The Department pointed out that this court applied similar
reasoning in
SA Onderwysersunie v Head of Department, Gauteng
Department of Education & others (1)
14
(“SAOU”),
having referred to
City Parks
and
SSSBC
, when it held:
“
It
appears to me that the main dispute in this urgent application is not
the interpretation and application of a collective agreement.
The
relief sought is for the head of department to refund the money
deducted from the applicants' members pending the compilation
of a
factually correct database. In the course of deciding whether the
applicants are entitled to the relief sought, I have to
consider
various undertakings by the GDE, some of which are contained in
collective agreements of the PSCBC. Those agreements form
part of the
issues in dispute; but the main dispute is not the interpretation or
application of a collective agreement.”
[27] The Department argues that the
SSSBC
decision is directly
in point of the case before me. It argues that the dispute before
Commissioner Maritz was whether the Department’s
refusal of Ms
Liebenberg’s application for TIL was unfair. The provisions of
the collective agreement only had to be interpreted
and applied in
deciding that dispute. Therefore, the Department argues, the
Bargaining Council did not have jurisdiction.
[28] The PSA has submitted that the
dictum
in
SSSBC
should be narrowly construed so as to avoid the situation where most
disputes concerning the application of a collective agreement
are
rendered nugatory. It submitted that the clear purpose of section 24
is to resolve disputes where a party is in breach of a
collective
agreement by failing to apply its terms, either correctly or at all.
Even though the union would be limited to a finding
by the arbitrator
that the Department had breached (or failed to apply) the collective
agreement and a declaratory order that the
Department should comply
or rectify its non-application, that should not deprive the
Bargaining Council of jurisdiction altogether.
[29] This line of argument appears to me to be consistent with the
approach of the Constitutional Court in
Gcaba v Minister for
Safety & Security.
15
The Constitutional Court pointed out that what ultimately determined
the jurisdictional divide was the manner in which the dispute
was
pleaded (i.e. the cause of action relied upon) and the nature of the
relief sought. Jurisdiction is determined on the basis
of the
pleadings, as the Constitutional Court held in
Chirwa
16
,
and not the substantive merits of the case.
[30] A similar point was made by Nugent JA in
Makhanya v
University of Zululand:
17
“
[T]he
claim that is before a court is a matter of fact. When the claimant
says that the claim arises from the infringement of the
common law
right to enforce a contract, then, that is the claim, as a fact, and
the court must deal with it accordingly. When the
claimant says that
the claim is to enforce a right that is created by the LRA, then,
that is the claim that the court has before
it, as a fact. When he or
she says that the claim is to enforce a right derived from the
Constitution, then, as a fact, that is
the claim. That the claim
might be a bad claim is beside the point.
...
We know this [ie, what the claim
is] because that is what it says in the particulars of claim. Whether
the claim is a good one or
a bad one is immaterial. Nor may a court
thwart the pursuit of the claim by denying access to a forum that has
been provided by
law.”
[31] Similarly, it does not seem to me that the Bargaining Council
could deny the PSA access to that forum. It has jurisdiction
to
decide a claim based on the application of the collective agreement.
Whether it is a good or a bad claim, is a different question.
18
[32] As the Supreme Court of Appeal finally noted in
South African
Maritime Safety Authority v McKenzie:
19
“
Once
more, as in other cases that have become before this court, the plea,
so far as it purports to raise a jurisdictional challenge,
is
misdirected. As the Constitutional Court has reiterated in
Gcaba
v Minister of Safety & Security and Others
,
the question in such cases is whether the court has jurisdiction over
the pleaded claim, and not whether it has jurisdiction over
some
other claim that has not been pleaded, but could possibly arise from
the same facts.”
[33] In the present case, the applicants formulated the claim before
the Bargaining Council as one concerning the application of
Resolution 7 of 2000. If that was the true nature of the dispute, the
Bargaining Council had jurisdiction to consider it.
[34] The decisions in
City Parks
and
SSSBC
must also be
reconsidered in the light of the more recent decision of the Labour
Appeal Court in
De Bruyn.
That case appears to be directly in
point with the current one. The PSA also acted on behalf of its
member, De Bruyn. He applied
for temporary incapacity leave. The
employer approved TIL for one period and disapproved did for another
period. He referred an
unfair labour practice dispute to the SSSBC.
However, the dispute was not pursued and remained unresolved. The PSA
then approached
the Labour Court for the review and setting aside of
the employer’s decision to disapprove the application for TIL
in terms
of section 158(1)(h) of the LRA.
[35] The Labour Court held that temporary incapacity leave is
governed by the provisions of a resolution of the PSCBC which is
a
binding collective agreement. The appropriate forum to challenge the
decision of the employer refusing the employee temporary
incapacity
leave, the court held, was the Bargaining Council. It also expressed
the view that the cause of action for the applicant
(the PSA on
behalf of its member) rested in the application and/or interpretation
of the provisions of the PSCBC resolution.
[36] On appeal, Mlambo JP considered sections 158(1)(h) and 24 of the
LRA and concluded:
20
“
The
appellant’s complaint clearly concerns the denial of incapacity
leave. The alleged right the appellant seeks to assert
derived from
the provisions of the PSCBC resolution as the Labour Court, correctly
in our view, found. The resolution deals with
leave of absence and
what steps an employee should take in case of a dispute arising
regarding attendant matters. There is no doubt
that the aspect of
leave of absence is an issue falling squarely under the PSCBC
resolution. In deciding whether the relief sought
ought to be
granted, the court a quo had to have regard to the provisions of the
resolution.
Therefore, the court a quo…
correctly proceeded to consider whether the LRA required the kind of
dispute which existed between
the appellant and the respondent to be
resolved through arbitration. The court concluded that leave,
including incapacity leave
and temporary incapacity leave at the
respondent’s organisation, is governed by the provisions of
Resolution 5 of 2001 of
the PSCBC which is a binding collective
agreement. This means that the dispute between the parties was
required to be submitted
to arbitration, as it concerned the
application and/or interpretation of the provisions of the PSCBC
resolution.
…
It follows therefore that where
an employee… is dissatisfied with a decision by the employer
with regard to the issue of
leave of absence… his remedy lies
in the provisions of the resolution. It follows that the appellant is
confined to its
remedy in terms of section 24 of the LRA.”
[37] That
dictum
is directly applicable to the facts of the
matter before me and I am bound by that decision. Although the LAC in
De Bruyn
did not refer to its earlier decisions in
City
Parks
and
SSSBC,
it appears to me that
De Bruyn
is
more directly applicable to the facts of the case before me and thus
to the case that served before the arbitrator.
De Bruyn
makes
it clear that, in a case such as the current one, where the employee
and her union are dissatisfied with the employer’s
refusal to
grant a temporary incapacity leave, and the procedure for granting or
refusing TIL is governed by the collective agreement
of the
Bargaining Council, her remedy lies in the referral of a dispute over
the application of the resolution to the Bargaining
Council in terms
of section 24 of the LRA. I also take into account that
De Bruyn
is the most recent decision of the LAC on this point.
Conclusion
[38] For the reasons set out above, and given the judgement in
De
Bruyn
and the principle of
stare decisis
, I hold that the
Bargaining Council did have jurisdiction to entertain a dispute over
the application of Resolution 7 of 2000 in
terms of section 24 of the
LRA.
[39] The dispute should be remitted to the Bargaining Council to
convene an arbitration hearing on the merits.
Costs
[40] The parties agreed that the arbitration award should be reviewed
and set aside. The dispute is in the nature of a test case.
It has
ramifications for the members of the PSA and other trade unions, as
well as the Department. The parties referred the application
for
review and cross review to this court in circumstances where the
guidance from the Labour Appeal Court was unclear. In law
and
fairness, neither party should be ordered to pay the other party’s
costs in these circumstances.
Order
[41] in conclusion, I make the following order:
41.1. The jurisdictional ruling made by the third respondent (the
arbitrator) under the auspices of the second respondent (the
Bargaining Council) on 10 October 2011 under case number PSCB
230-11/12 is reviewed and set aside.
41.2. The ruling is replaced with a ruling that the Bargaining
Council does have jurisdiction over the dispute referred by the
applicant (the PSA).
41.3. The dispute is remitted to the Bargaining Council for
arbitration on the merits before a different arbitrator.
41.4. There is no order as to costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
J Whyte of Cheadle
Thompson & Haysom.
FIRST RESPONDENT:
J van der Schyff
(heads of argument
drafted by R M Nyman)
Instructed by the State
Attorney.
1
Act
66 of 1995 (the LRA).
2
It
is common cause that the Resolution is a collective agreement as
defined by the LRA.
3
Resolution
7 of 2000 clause 7.5.1.
4
The
Department only informed Ms Liebenberg of its decision to refuse TIL
on 17 May 2011.
5
(2010)
31
ILJ
1813 (LAC).
6
Act
103 of 1994.
7
Clause
10.
8
An
agency to which the Department outsourced the assessment of TIL
applications.
9
The
third ground, relating to the Directives, became academic as the
parties agree that the arbitrator was wrong in concluding
that he
could not consider them.
10
[2012]
9 BLLR 888
(LAC).
11
Safety
& Security Sectoral Bargaining Council Agreement 5 of 1999.
12
(2010)
31
ILJ
1804 (LAC).
13
Supra
paras [14] – [16].
14
(2011)
32
ILJ
1413 (LC) para [38].
15
(2010)
31
ILJ
296 (CC); (2010) 31
ILJ
1813 (LAC).
16
Chirwa
v Transnet
[2007] ZACC 23
;
2008 (4) SA 367
(CC); (2008) 29
ILJ
73 (CC).
17
2010
(1) SA 62
(SCA) paras [71] and [95].
18
For
a full discussion of the jurisdictional question, see Steenkamp and
Bosch, “Labour Dispute Resolution under the 1995
LRA” in
Le Roux & Rycroft (eds),
Reinventing Labour Law: Reflecting
on the first 15 years of the
Labour Relations Act and
future
challenges
(Juta 2012).
19
2010
(3) SA 601
(SCA) para [7].
20
De
Bruyn (supra)
paras [31] – [34].