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[2014] ZALCJHB 85
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City of Johannesburg v South African Local Govt Bargaining Council and Others (JR3204/10) [2014] ZALCJHB 85 (10 February 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
NOT REPORTABLE
CASE
NO JR 3204/10
In
the matter between:
CITY
OF
JOHANNESBURG APPLICANT
and
SOUTH
AFRICAN LOCAL
GOVT
BARGAINING
COUNCIL 1
ST
RESPONDENT
ZARINA
WALELE NO
2
ND
RESPONDENT
SAMWU
obo THE SERGEANTS
3
RD
RESPONDENT
Application
argued: 7 February 2014
Judgment
delivered: 10 February 2014
JUDGMENT
VAN
NIEKERK J
[1]
This is an application to review and set aside an arbitration award
issued by the second respondent (‘the arbitrator’)
under
case number JMD 021013 on 11 October 2010. In her award, the
arbitrator held that the applicant had demoted the affected
employees
(referred to as the sergeants) when it grouped them on the equivalent
salary structure and band level as their subordinates.
The arbitrator
directed that the sergeants who report to a superintendent are first
line managers and should be retained at the
level of first line
managers, with immediate effect.
[2]
The material facts are not in dispute. They are contained in the
arbitrator’s award and the affidavits before me, and
I do not
intend to repeat them here. For present purposes, it is sufficient to
record that the sergeants were appointed during
the course of 2001.
During 2002, a number of them were promoted to the level of
inspector.
[3]
The essence of the dispute that the arbitrator was called upon to
decide was whether the sergeants had been demoted. Their contention
was that soon after their appointment, certain individuals were
designated as inspectors, and appointed at a higher rank. The
applicant required the sergeants to report to these persons. The
sergeants claimed that at all material times, they had in practice
reported to an inspector rather than a superintendent, a manager in
terms of the applicant’s organogram. On this basis, and
in
terms of the organogram, they should be placed at one level lower
than that of ‘manager’, the level and salary scale
on
which the superintendents were placed. The sergeants sought an order
to the effect that they continue to report to superintendents
and
that of their status thus be restored to a level consistent with the
role description afforded to them when they were employed.
[4]
The evidence proffered at the arbitration hearing by one Prince
Mdluli was that he is a sergeant who reports to a superintendent.
The
arbitration award records his evidence to the effect that the
reporting lines that formed the subject of the dispute were
challenged ‘as far back as two years ago when it was suggested
that the Applicants report to Inspectors’. Vikule Matiyela’s
evidence is recorded in the award to the effect that certain of his
functions were taken away in 2008, and that his status was
no longer
the same. Bonagile Ntimaba also testified that certain of his
functions were taken away in 2008, and that his status
was no longer
the same.
[5]
The applicant in the present proceedings contended at the arbitration
hearing that the appointments of the sergeants had occurred
in 2001
and that the basis of their complaint (i.e. the appointment of
inspectors to whom they were required to report) had occurred
in
2002. The applicants were fully aware of the situation but referred a
dispute to the bargaining council only in February 2010.
In their
referral, they alleged (for reasons that remain elusive) that the
dispute had arisen on 2 December 2009.
[6]
It is not disputed that the arbitrator rejected a submission by the
applicant that the bargaining council lacked jurisdiction
since the
referring parties had failed to comply with the time limit prescribed
by section 191 (b) (ii) of the LRA, in that the
disputed had been
referred to the council later than the 90 day period prescribed by
the section. The basis of the arbitrator’s
ruling, it would
appear, was that a certificate of outcome had been issued by the
bargaining council on 28 March 2012 and that
the certificate had not
been taken on review. The arbitrator’s reasoning appears to
reflect the view that a party is not
entitled to raise preliminary
points at arbitration in the absence of a challenge to a certificate
of outcome by way of review.
[7]
It is now well-established that the existence of a certificate of
outcome does not preclude an arbitrator from considering a
jurisdictional issue, when a jurisdictional challenge arises at
arbitration. When a jurisdictional issue arises, an arbitrator
or
commissioner is generally speaking obliged to consider the issue and
satisfy him or herself that the bargaining council or CCMA,
as the
case may be, has jurisdiction - see
Bombardier Transportation
(Pty) Ltd v Ntiya NO & others
[2010] JOL 25366
(LC),
BMW
South Africa (Pty) Ltd v NUMSA obo members
[2012] 3 BLLR 274
(LAC).
[8]
It is trite that where an arbitrator’s decision concerning the
jurisdiction of a bargaining council or the CCMA is at
issue, the
test to be applied by a review court is one of correctness and not
reasonableness. In other words, the reasonableness
threshold
applicable to decision-making in terms of
Sidumo and others v
Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 1097
(CC)
does not apply – either the council (or the CCMA) had
jurisdiction or it did not. This is a matter to be determined
objectively by reference to all of the relevant facts. (
SA Rugby
players Association (SARPA) & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SARPU & another
[2008] ZALAC 3
;
[2008] 9 BLLR
845
(LAC)). It is equally well-established that if an arbitrator
issues an arbitration award in the absence of jurisdiction, this
constitutes
an excess of powers and a nullity.
[9]
In
South African Post Office Ltd v Commission for Conciliation,
Mediation and Arbitration and others
[2012] 11 BLLR 1183
(LC),
this court held that it was competent for a party to seek to review
and arbitration award relating to an unfair labour practice
dispute
for lack of jurisdiction, even though the certificate of outcome
issued at the end of the conciliation phase had not been
set aside on
review. In that case, the court reaffirmed the principle that the
late referral of a dispute without any application
for condonation
deprived the CCMA of jurisdiction to entertain the dispute at
arbitration.
[10]
The present case is no different. The facts clearly disclose (and I
did not understand this to be disputed) that the history
of the
dispute goes back as far as 2002. The referral of the dispute was
well out of time, and in the absence of an application
for
condonation for the late referral, the arbitrator lacked the
jurisdiction to entertain the dispute.
[11]
It was submitted on behalf of the third respondent that the nature of
the dispute was continuous, one akin to a discrimination
dispute and
that since it continued well into 2009 (and indeed to the date of
referral), the referral was not late. I have difficulty
appreciating
the logic of this submission. I see no reason why a demotion does not
fall into the same category as a dispute concerning
a dismissal or
any other disciplinary penalty, both of which are the subject of
strict time limits which run from the date of the
employer’s
actions,. Of course, an act of demotion has consequences in the form
of a diminution of status perhaps, and those
consequences may well be
ongoing. But it is not so as it necessarily is in the case of an act
of unfair discrimination, where the
unfair act complained of is
continuous, uninterrupted or repeated. For example, in a claim for
equal pay, the fact that the employer
continues each month to pay a
lower wage on one or more discriminatory grounds, has the result that
the act of discrimination is
continuous. But an act of demotion is
not continuous in the same sense. This much is acknowledged by the
wording of s 191 (1) (b)
(ii) which requires a referral within 90
days ‘
of the date of the act or omission which allegedly
constitutes an unfair labour practice or, if it is a later date,
within 90 days
of the date on which the employee became aware of the
act or occurrence’
. The case in which the third respondent
relies in support of its submission,
SABC Ltd v CCMA & others
[2010] 3 BLLR 251
(LAC), supports this analysis. That was a case that
concerned unfair discrimination in the form of continuous conduct
rather than
a single act. Not only is it distinguishable on that
basis, but the court drew a clear distinction between ongoing unfair
labour
practices (unequal pay) and ‘one-off’ decisions or
single acts that are not repetitive in nature. Were an act of
demotion
(or dismissal or the issuing of a final warning for a 12
month period) to be regarded as continuous for the purposes of s 191,
that would make a mockery of the time limits imposed by the section.
An employee need only allege that he or she continues to suffer
the
consequences of dismissal, some lesser disciplinary measure or
demotion to avoid the prescribed time limits altogether.
[12]
Secondly, it was submitted on behalf of the third respondent that the
arbitrator acted in accordance with the law as it applied
at the
time, and that her ruling ought to be upheld on this basis. It may be
that the arbitrator acted in terms of her understanding
of the law as
it applied at the time, but in a review of a jurisdictional ruling,
what matters is whether the arbitrator was correct.
The law as
affirmed by the Labour Appeal Court in
BMW
is and has always
been that a certificate of outcome neither confers jurisdiction or
deprives an arbitrator of jurisdiction, and
that it represents no
more than a recordal of the status of the dispute following
conciliation.
[13]
For the above reasons, I am persuaded that on the objective facts,
the dispute referred to arbitration by the third respondent
was
referred outside of the statutory time limit and that in the absence
of any application for condonation, the arbitrator lacked
jurisdiction to consider the dispute. In these circumstances, the
award is a nullity and the application for review stands to succeed.
[14]
Finally, in relation to costs, this court has a broad discretion in
terms of section 162 of the LRA to make an order for costs
according
to the requirements of law and fairness. Neither party’s
representative proffered any submissions as to why costs
should not
follow the result, and that is the order I intend to make.
It
is ordered that:
1.
The
arbitration award issued by the second respondent under case number
JMD 021013 on 11 October 2010 is reviewed and set aside.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the applicant: Adv. F Boda, instructed by Bowman Gilfillan Inc
For
the third respondent: Adv. Kutumela instructed by Routledge Modise
Inc.