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[2014] ZALCJHB 80
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NUPSAW obo Modise v GPSSBC and Others (JR1585/12) [2014] ZALCJHB 80 (20 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: JR1585/12
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
Delivered:
20 March 2014
RULING
ON LEAVE TO APPEAL
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 on the following grounds:
2.1
The Court erred in failing to find that the
[arbitrator], even though he dismissed the matter on a jurisdictional
point, made material
factual findings to the effect that there were
posts available which were filled by the fourth to eighth
respondents, without those
posts having been advertised;
2.2
The Court erred in directing that the
matter be referred back to the Bargaining Council, in that there are
no longer factual issues
remaining to be decided;
2.3
The Court erred in failing to find that
there was no counter-application for a cross-review on the “findings
of fact”;
2.4
The Court should have found that the only
remaining issue left for determination was one of law;
2.5
The Court was not prevented from granting
the other orders, as the application was unopposed;
2.6
The Court should have granted all the
orders sought; and
2.7
There are reasonable prospects of another
court coming to a different conclusion.
[3]
The first four grounds can conveniently be
dealt with together. They all relate to the complaint that the
arbitrator had already
made findings of fact. The next two grounds
relate to the relief sought but not granted; and the last is a
“catch-all”
reiterating the test for leave to appeal.
[4]
I will first deal with the grounds relating
to alleged findings of fact.
[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. 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.
[6]
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.”
[7]
It is that jurisdictional point that has
been reviewed and set aside. Having found that he did not have
jurisdiction, the arbitrator
could hardly have made any binding
rulings on matters of fact. Whatever he said about the factual
situation, given his finding
that he did not have jurisdiction, could
have been
obiter
at
best. His finding was a preliminary one, decided upon without having
heard any evidence. It may be that the parties at the reconvened
arbitration decide to argue the matter on a stated case; it may also
not be. The fact is that the Council has not had the opportunity
to
hear any evidence on the merits. It must be given that opportunity,
given my ruling that it – and not this Court –
has the
jurisdiction to do so.
[8]
With regard to the relief sought but not
granted, it matters not that the application for review was
unopposed. This Court still
has to be satisfied that the award is
reviewable; and then the Court has a discretion whether to substitute
or to remit. In this
case, I was satisfied that the jurisdictional
ruling had to be reviewed and set aside. Having made that ruling,
though, it is for
the Bargaining Council to decide afresh whether the
Department had indeed committed an unfair labour practice; and if so,
what
the appropriate relief is. It is a classic case where the
dispute on the merits should be remitted to the appropriate
decision-maker
to exercise the powers bestowed upon it by the LRA.
[9]
There are no reasonable prospects that
another court will come to a different conclusion, especially given
the discretionary nature
of the decision whether to substitute or
remit.
Order
The
application for leave to appeal is dismissed.
_______________________
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.