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[2014] ZALCJHB 81
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NUPSAW obo Modise v GPSSBC and Others (JR1585/12) [2014] ZALCJHB 81 (17 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR 1585/12
Not
reportable
In
the matter between:
NUPSAW
obo DINEO
MODISE
Applicant
and
GPSSBC
First
Respondent
N
MASEKO
N.O.
Second
Respondent
HEAD
OF DEPARTMENT:
GAUTENG
Third
Respondent
DEPARTMENT
OF ROADS AND TRANSPORT
G
L
DABULA
Fourth
Respondent
L
MDAKANE
Fifth
respondent
M
NKABITI
Sixth
respondent
M
P
JONAS
Seventh
respondent
I
N
MASEKO
Eighth
respondent
MEMBER
OF EXECUTIVE
COUNCIL
Ninth
respondent
(MEC)
FOR THE GAUTENG DEPARTMENT
OF
ROADS AND TRANSPORT
Heard:
19 November 2013
Delivered:
19 November 2013
Edited
:
17 March 2014
JUDGMENT
STEENKAMP
J
[1]
On 13 November 2013 I granted an order in
the following terms:
“
The
arbitration award under case number GPBC 1941/2011 dated 10 May 2012
is reviewed and set aside. The dispute is remitted to the
Bargaining
Council, that is the first respondent, for arbitration on the unfair
labour practice dispute before an arbitrator other
than the second
respondent.”
[2]
The applicant has applied for leave to
appeal and has requested reasons for the order that I debated with
its attorney, Mr
Ndou
,
on the day that the order was granted. These are the expanded and
edited reasons.
[3
]
The application arises from an award made
by the arbitrator in which he held that the Bargaining Council had no
jurisdiction to
entertain the dispute referred by the applicant. It
is that award that the applicant sought to have reviewed and set
aside.
[4]
The applicant referred the dispute to the
Bargaining Council as an alleged unfair labour practice in terms of s
186(2)(a) of the
LRA. It relates to the appointment of employees
other than Ms Modise, the applicant who is represented by her trade
union, NUPSAW,
and Mr
Ndou.
[5]
The
Department
[1]
raised a
preliminary point that the Council did not have jurisdiction as the
real issue was one of alleged discrimination, and
not an unfair
labour practice.
[6]
The arbitrator had to rule on that
preliminary point. He noted that the applicant’s attorney had
argued that the Department
had appointed employees on fixed term
contracts in “fictitious” positions that could have been
filled by the applicant.
The applicant alleged an unfair labour
practice relating to promotion.
[7]
The arbitrator concluded that “the
dispute is not necessarily about the alleged unfair labour practice.
Resultantly [
sic
],
the Council must be found to be lacking jurisdiction to entertain
this matter.”
[8]
This
conclusion by the arbitrator was irrational and unreasonable. The
referral form clearly alleged an unfair labour practice.
As Nugent JA
pointed out in
Makhanya
v University of Zululand
[2]
,
a claim is a matter of fact. If the applicant claims that her
non-appointment is an unfair labour practice, then that is her claim,
as a matter of fact. That it may be a bad claim, is a different
matter. That is something that the Bargaining Council, and not
this
Court, must decide. But the Council has the jurisdiction to decide
the unfair labour practice claim that the applicant referred
to it,
whether or not the applicant can prove the claim.
[9]
I came to the conclusion that the
Bargaining Council does have jurisdiction to hear the unfair labour
practice dispute. That is
the proper forum to decide the merits with
the benefit of evidence and argument. This application was heard on
an unopposed basis.
This Court is not in a position to decide on the
further relief sought, which takes the form of a declaratory order
and a mandamus,
and a further order setting aside the appointments of
the fourth to eighth respondents.
[10]
The arbitrator decided the jurisdictional
point on a preliminary basis. Having set aside that ruling, this
dispute should properly
be remitted to the Council for another
arbitrator to hear full evidence and argument on the merits, given
that I have found that
the Council is the forum with jurisdiction.
[11]
It is for those reasons that I granted the
order that I did
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
B
A Ndou (attorney).
[1]
Cited as the respondent at arbitration and represented by the first
respondent (the head of department) and the ninth respondent
(the
MEC for roads and transport) in these proceedings.
[2]
2010 (1) 62 (SCA).