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[2013] ZALCJHB 10
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Cook4Life CC v Commission for Conciliation Mediation and Arbitration and Others (JR 350/2012) [2013] ZALCJHB 10; (2013) 34 ILJ 2018 (LC) (29 January 2013)
5
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOURCOURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
CASE NO:
JR
350/2012
In the matter between:
COOK4LIFE
CC
......................................................................................................
APPLICANT
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
................................................................
1
ST
RESPONDENT
DK
NKADIMENG NO
....................................................................................
2
ND
RESPONDENT
LOURENS
M DE BRUYN
..............................................................................
3
RD
RESPONDENT
Heard: 25 January 2013
Judgment delivered: 29
January 2013
JUDGMENT
VAN NIEKERK J
Introduction
[1]
This is an unopposed application to review and set aside a
jurisdictional ruling made by the second respondent (the
commissioner)
on 16 January 2012, and to set aside the certificate of
outcome issued by the commissioner consequent on his ruling.
The commissioner’s
ruling
[2]
The commissioner records in his ruling the point in
limine
raised
at the conciliation phase to the effect that the third respondent had
resigned and that therefore, in the absence of a ‘dismissal’
as defined by the Act, the CCMA had no jurisdiction to conciliate the
dispute. The commissioner took the view that the existence
or
otherwise of a dismissal in the present instance was to be
established at the arbitration phase. His formal ruling reads
follows:
‘
6.1
The CCMA has jurisdiction to conciliate of the dispute.
`
6.2 I hereby issue the relevant certificate of non-resolution.
6.3
The applicant may refer the dispute for arbitration if he so wishes.
6.4
The dispute may still be conciliated at the arbitration in terms of
section 138 (3) of the Act.
6.5
I make no order as to costs.’
Background facts
[3]
In April 2011, the third respondent was employed by the applicant as
an imports buyer. The applicant contends that during November
2011,
discussions were held between the applicant's CEO and the third
respondent concerning the latter’s work performance.
The
applicant contends that the third respondent conceded that his skills
were not suitable to the position to which he had been
appointed, and
that the parties came to an agreement in terms of which the third
respondent’s employment would be terminated
by mutual consent.
The agreement provided that the third respondent would be paid for
the months of November 2011 through to February
2012, but that he
would be relieved of any obligation to work with effect from 21
November 2012. The applicant contends that it
has complied with the
terms of the settlement agreement.
[4]
In December 2011, the third respondent referred an unfair dismissal
dispute to the first respondent. In the referral, the third
respondent claimed that he had been unfairly dismissed for reasons
relating to his incapacity, without any procedure being followed.
A
conciliation meeting was convened and took place on 11 January 2012.
At this meeting, the applicant stated that it wished to
raise an
objection to the jurisdiction of the first respondent. In essence,
the applicant contended that the third respondent had
not been
dismissed by the applicant given that a settlement agreement had been
reached in terms of which the third respondent's
employment
terminated by mutual consent on 21 November 2011. The third
respondent conceded that his employment had indeed been
terminated by
agreement, but claimed that he had concluded the agreement under
duress.
Grounds for review
[5]
The applicant contends that what the commissioner appears to have
found is that notwithstanding the existence of a termination
of
employment by mutual consent, he was not entitled as a matter of law
or otherwise to rule that the CCMA lacked jurisdiction
to entertain
the employees referral. More specifically, the applicant contends
that in making his ruling, the commissioner lost
sight of rule 14 of
the CCMArules, which clearly requires a commissioner to establish
whether the CCMA has jurisdiction to conciliate
a dispute.Rule 14 of
the CCMA Rules reads as follows:
‘
If
it appears during conciliation proceedings that a jurisdictional
issue has not been determined, the Commissioner must require
the
referring party to prove that the commission has the jurisdiction to
conciliate a dispute through conciliation.
[6]
In support of its submisssions, the applicant relies on the case of
EOHAbantu (Pty) Ltd v CCMA& another
2008 (29)ILJ 2588 (LC)
in which this court said the following:
‘
It
is, in my view, clear from the section that it is peremptory for a
conciliating commissioner to deal with a jurisdictional issue
if it
appears during the conciliation proceedings that a jurisdictional
issue has not been determined. In other words, where a
party raises a
jurisdictional point during conciliation or where it appears that
there exists a jurisdictional reservation, such
point must be
determined by the conciliating commissioner. Where the conciliating
commissioner fails to do so, such a refusal will
constitute a
reviewable irregularity’.
The certificate issued
by the commissioner
[7]
As I have indicated, in the notice of motion, the applicant seeks to
have the certificate of outcome issued by the commissioner
reviewed
and set aside. During argument, counsel submitted that the present
proceedings did not "in principle" comprise
an application
to review and set aside the certificate – the review of the
certificate was sought only as ancillary relief
to the primary relief
sought by the applicant, i.e. the review of the jurisdictional ruling
made by the commissioner.
[8]
In
Bombardier Transportation (Pty) Ltd v Mthiya NO & others
(2010) 31
ILJ
2065 (LC), this court held:
‘
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 body wishes to challenge the
CCMA’s jurisdiction to deal with an unfair
dismissal dispute,
it may do so, whether or not the 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.’
‘
[9]
The judgment in
Bombardier
canvassed
all of the relevant authorities, and I do not intend to repeat them
here. The judgment has been applied by this court
in a number of
subsequent cases, to the extent that the principle reflected in the
passage quoted above is well-established - a
certificate of outcome
issued by a commissioner has no legal significance beyond that stated
above and ordinarily, is not an appropriate
subject for an
application for review. To the extent that the applicant seeks to
have the certificate reviewed and set aside, that
part of the
application must fail.
The commissioner’s
jurisdictional ruling
[10]
In
Bombardier
, this
court held that it was not necessarily a reviewable irregularity for
a conciliating commissioner to defer challenge to the
CCMA’s
jurisdiction to the arbitration phase of the statutory dispute
resolution process. In other words, Rule 14 must not
be read so as to
require that all jurisdictional questions of whatever nature raised
that conciliation must necessarily be determined
by the conciliating
commissioner, on pain of a failure to do so being regarded as a
reviewable irregularity. The court said the
following:
‘
The
proper response of a Commissioner to jurisdictional challenges can
therefore be summarised as follows:
1.`
When respondent issues a jurisdictional challenge to properly
completed referral form, a conciliating Commissioner may elect
to
determine the jurisdictional question ought to defer it. In the
making that election, the Commissioner will generally regard
a
challenge to the effect that the dismissed person was not and
"employee" is defined or that she was never dismissed,
as
matters that are not truly jurisdictional issues, and a further
challenge to the arbitration phase. In respect of other challengers,
the Commissioner ought to be guided by the nature of the challenge,
the extent to which matters are intimately bound up with the
substantive merits of the dispute, the determination of difficult
questions of mixed law in fact, and the need for evidence to
resolve
them.
2.
If a jurisdictional challenge is heard and upheld prior to the
commencement of conciliation proceedings, the commissioner's ruling
puts an end to the dispute. Is not necessary in the circumstances for
the commissioner to issue a certificate of outcome (since
the dispute
was never capable of being resolved by the CC MA) and the ruling
bounces CC are made all parties to the dispute. The
jurisdictional
ruling stands unless and until it is reviewed and set aside by this
court….
6.
In the absence of any relevant and prior jurisdictional ruling made
by conciliating commissioner, any party to a dispute referred
to
arbitration may raise any challenge to the CCMA has jurisdiction at
that stage, and the challenge must be dealt with by the
arbitrating
commissioner in terms of s 138 (1).’
[11]
Again, all of the relevant authorities are referred to in the
Bombardier
judgment, and I do not intend to repeat them here.
It follows, in the present instance, that the commissioner was not
obliged to
entertain the jurisdictional challenge presented by the
applicant at the conciliation phase. This is particularly so since
the
jurisdictional challenge was not one that is identified in the
Bombardier
judgment as a true jurisdictional challenge, e.g. a
failure to refer the dispute timeously, or a referral to the CCMA
when a bargaining
council has jurisdiction. The applicant’s
challenge (and the third respondent’s response to it) required
evidence to
be led on the circumstances in which the agreement was
concluded, and evidence of the nature and extent of any pressure
placed
on the third respondent to sign it. This is archetypically a
challenge that is best deferred to the arbitration stage of the
statutory
process. The commissioner's ruling, which in effect
deferred the applicant’s jurisdictional challenge to the
arbitration
phase, therefore does not constitute a reviewable
irregularity.
CCMA’sjurisdiction
to determine validity of an agreement
[12]
The applicant submits further that although the commissioner did not
make any finding as to the validity of the agreement,
he could not do
so nor could any arbitrated Commissioner do so on the basis that the
CCMA has no jurisdiction to entertain such
a claim. Counsel relies on
First National Bank Ltd (Wesbank Division) vMooi NO and another
2009 (30)
ILJ
336 (LC) to contend that only this court or a
civil court has jurisdiction to make determinations on the validity
of agreements,
including employment contracts, settlement agreements,
collective agreements and the like. On this basis, the applicant
submits
that if the third respondent wished to have the agreement
declared null and void on account of any duress, that is a matter
that
ought to have been referred to this court in terms of s 77 (3)
of the Basic Conditions of Employment Act.
[13]
It is not uncommon, in review proceedings in this court, to encounter
the attitude adopted by commissioners to the effect that
the CCMA has
no jurisdiction to determine the validity or otherwise of agreements.
This view may be informed by the
First National Bank
decision,
and appears to be predicated on the assumption that only a court of
law has jurisdiction to enquire into the lawfulness
of an agreement,
and to make determinations of validity.
[14]
In my view, the refusal by commissioners to enter into any
consideration of the validityof an agreement confuses the concepts
of
jurisdiction and power. The CCMA has jurisdiction to determine unfair
dismissal disputes and it is specifically enjoined, in
terms of s 115
(1)(b), to arbitrate disputes referred to it after a failed
conciliation. Section 191 contemplates that the CCMA
must make a
ruling when the existence of a dismissal is placed in issue, by
determining whether or not an employee referring an
unfair dismissal
claim was dismissed within the meaning accorded to that term by
section 186 (1) of the Act. That being so, I fail
to appreciate why,
in matters such as the present, when it is contended that an
agreement is voidable on account of it having been
induced by
duress,the CCMA is not empowered to make that determination in the
exercise of its jurisdiction to determine the existence
or otherwise
of a dismissal. To require an applicant in those circumstances to
refer a contractual dispute to this court as a precondition
to
arbitration on an unfair dismissal claim would defeat the statutory
purpose of informal and expeditious dispute resolution,
and would
import a requirement that finds no reflection in the Act.
[14] For these reasons,
in my view, the application stands to be dismissed.
I make the following
order:
The application is
dismissed.
_________________
Andre van Niekerk
Judge of the Labour court
Appearances
Adv W Bekker, instructed
by Gildenhuys Lessing Malaji Inc.