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[2014] ZALCCT 3
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Independent Municipal And Allied Trade Union obo Bezuidenhout v Witzenberg Municipality and Others [2014] ZALCCT 3; [2014] 5 BLLR 443 (LC); (2014) 35 ILJ 1579 (LC) (22 January 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C484/2012
DATE:
22 JANUARY 2014
REPORTABLE
In
the matter between:
THE
INDEPENDENT MUNICIPAL AND ALLIED TRADE
UNION
obo GP
BEZUIDENHOUT
.........................................................................
Applicant
And
WITZENBERG
MUNICIPALITY
...............................................................
First
Respondent
THE
SOUTH AFRICAN LOCAL GOVERNMENT
BARGAINING
COUNCIL
.....................................................................
Second
Respondent
SINGH-BHOOPCHAND
N.O
.
…..............................................................
Third
Respondent
Date
heard: October 10 2013
Date
delivered: 22 January 2014
Summary:
Review application iro a ruling
that a Bargaining Council lacks jurisdiction to entertain a dispute
pertaining to an ‘occupational
detriment’ short of
dismissal.
JUDGMENT
Rabkin-Naicker
J
[1]
The review before me concerns the following question: does the LRA
afford a party an election between a referral to the Bargaining
Council/CCMA and the Labour Court when that party alleges an unfair
labour practice concerning an ‘occupational detriment’
other than dismissal. The third respondent found that the bargaining
council lacked the requisite jurisdiction to entertain such
a
dispute. The application was brought substantially late. Because it
is important that the questions raised by the review are
pertinently
dealt with by this court, I grant condonation for the matter to be
heard.
[2]
Given that this is a review of a jurisdictional ruling it is trite
that this court must simply decide whether the arbitrator
was correct
or not. She found contrary to the applicants argument before her
that : “it has not been the practice to interpret
section
191(13)(a) to mean that an employee has a choice between referring
such matters to arbitration or adjudication.”
[3]
Section 186 of the LRA includes the following in its definition of an
unfair labour practice:
“
(6) an
occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act, 2000 (Act 26 of 2000), on
account of the
employee having made a protected disclosure defined in that Act.”
[4]
Section 191of the LRA deals with disputes about unfair dismissals and
unfair labour practices. The applicant relies on the
following
subsections to found its argument:
“
(5)
If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council
or the
Commission received the referral and the dispute remains unresolved-
(a)
the council or the Commission must arbitrate the dispute at the
request of the employee if-
……………………………………………………………………………………
.
(iv)
the dispute concerns an unfair labour practice;or
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal
is-
(i)
automatically unfair;
(ii)
based on the employer's operational requirements; (iii) the
employee's participation in a strike that does not comply with
the
provisions of Chapter IV; or
(iv)
because the employee refused to join, was refused membership of or
was expelled from a trade union party to a closed shop agreement.
……………………………………………………………………………
..
……………………………………………………………………………
..
(13)
(a) An employee may refer a dispute concerning an alleged unfair
labour practice to the Labour Court for adjudication if the
employee
has alleged that the employee has been subjected to an occupational
detriment by the employer in contravention of
section 3
of the
Protected Disclosures Act, 2000
, for having made a protected
disclosure defined in that Act.
(b)
A referral in terms of paragraph (a) is deemed to be made in terms of
subsection (5) (b).”
[5]
On a reading of the above sections the applicant submits that in
terms of section 191 (5)(a)(iv) a bargaining council or the
CCMA must
arbitrate (in the peremptory sense) an unfair labour practice dispute
if so requested by an employee. It further argues
that the LRA does
not state that an unfair labour practice in Section 186(2)(d) is
excluded from the above section and neither
is section 191(5)(a)(iv)
qualified. In addition, whilst section 191(5)(a)(iv) is couched in
peremptory language, section 191(13)(a)
simply states that an
employee “may” refer a dispute concerning a section
186(2) (d) unfair labour practice dispute
to the Labour Court for
adjudication.
[6]
Following from the above Mr Niehaus for the applicant submits that:
“
With
respect, there cannot be any question that based on the plain
wording of the LRA an employee has an election to refer an unfair
labour practice dispute concerning an alleged occupational detriment
other than dismissal to either the Labour Court or arbitration.”
[7]
In a unanimous judgment of the Supreme Court of Appeal
1
Wallis JA recently summarized the current approach to statutory
interpretation as follows:
“
The
present state of the law can be expressed as follows: Interpretation
is the process of attributing meaning to the words used
in a
document, be it legislation, some other statutory instrument, or
contract, having regard to the context provided by reading
the
particular provision or provisions in the light of the document as a
whole and the circumstances attendant upon its coming
into existence.
Whatever the nature of the document, consideration must be given to
the language used in the light of the ordinary
rules of grammar and
syntax; the context in which the provision appears; the apparent
purpose to which it is directed and the material
known to those
responsible for its production. Where more than one meaning is
possible each possibility must be weighed in the
light of all these
factors. The process is objective, not subjective. A sensible meaning
is to be preferred to one that leads to
insensible or unbusinesslike
results or undermines the apparent purpose of the document. Judges
must be alert to, and guard against,
the temptation to substitute
what they regard as reasonable, sensible or businesslike for the
words actually used. To do so in
regard to a statute or statutory
instrument is to cross the divide between interpretation and
legislation; in a contractual context
it is to make a contract for
the parties other than the one they in fact made. The 'inevitable
point of departure is the language
of the provision itself', read in
context and having regard to the purpose of the provision and the
background to the preparation
and production of the document.”
[8]
Taking the above approach into account I note as follows:
[8.1]
section 195 (a) (iv) deals with an obligation on the CCMA to
arbitrate a dispute if certain conditions are met;
[8.2]
section 191(13)(a) deals with the right of an employee to refer a
dispute to the labour court after it has been conciliated
or 30 days
have passed since the referral to the CCMA. As submitted on behalf of
the first respondent the word ‘may’
in this context means
that an employee has a choice whether to refer the matter or not;
[8.3]
where the LRA deals with the right of an employee to refer a dispute
it uses the word ‘may’ because evidently
it would be
ludicrous if a statute obliged employees to refer all labour disputes
to tribunals or to this court.
2
[8.4]
section 186 (2) (d) was added to the LRA in the 2002 amendments to
the LRA in the wake of the promulgation of the
Protected Disclosures
Act 26 of 2000
– the material known to the drafters in its
production.
Section 4
of the PDA provides as follows:
“
4
Remedies
(1)
Any employee who has been subjected, is subject or may be subjected,
to an occupational detriment in breach of
section 3
, may-
(a)
approach any court having jurisdiction, including the Labour Court
established by section 151 of the Labour Relations Act, 1995
(Act 66
of 1995), for appropriate relief; or
(b)
pursue any other process allowed or prescribed by any law.
(2)
For the purposes of the
Labour Relations Act, 1995
, including the
consideration of any matter emanating from this Act by the Labour
Court-
(a)
any dismissal in breach of section 3 is deemed to be an automatically
unfair dismissal as contemplated in section 187 of that
Act, and the
dispute about such a dismissal must follow the procedure set out in
Chapter VIII of that Act; and
(b)
any other occupational detriment in breach of section 3 is deemed to
be an unfair labour practice as contemplated in Part B
of Schedule 7
to that Act, and the dispute about such an unfair labour practice
must follow the procedure set out in that Part:
Provided that if the
matter fails to be resolved through conciliation, it may be referred
to the Labour Court for adjudication.”
(my emphasis)
[8.5]
it is clear from the above that the PDA contemplates a distinction
between the unfair labour practices which were contained
in Schedule
7 and now, subsequent to the 2002 amendments are provided for in
section 186(2)(a), (b) and (c) of the LRA –
the distinction
being that an unfair labour practice in terms of section 186 (2) (d)
may be referred to the labour court while
the original ULP disputes
may be referred to arbitration.
[9]
Given all of the above, and in addition that Section 191(13) of the
LRA contains a deeming provision
3
i.e. that a referral in its terms is deemed to be one made in terms
of section 191(5)(b) - the provision dealing with disputes
in which
the labour court has jurisdiction and not the CCMA or a bargaining
council, I am left in no doubt that the application
in this matter
must fail. Applicant’s submissions that a purposive
constitutionally sensitive interpretation be given to
the provisions
in question, (while laudable, in that the purpose being that this
would assist indigent litigants), cannot be sustained.
The LRA
reserves certain matters for adjudication in the labour court
including and these deal with matters where constitutionally
enshrined rights come into play. I do not believe this is a matter
where a costs order should be granted.
[10]
I therefore make the following order:
1.
The application for condonation is granted
2.
The review application is dismissed
3.
There is no order as to costs
Rabkin-Naicker
J
Judge
of the Labour Court
Appearances:
For
the Applicant: Mr M Niehaus of Minaar Niehaus Attorneys
For
the Respondent: Ms A de Wet instructed by Marieke van Rooyen
Attorney
1
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
(SCA)
2
See
subsections 191(1) (a); (2)(a) and (12) which provides :(12) If an
employee is dismissed by reason of the employer's operational
requirements following a consultation procedure in terms of section
189 that applied to that employee only, the employee may
elect to
refer the dispute either to arbitration or to the Labour Court.
3
(a)
An employee may refer a dispute concerning an alleged unfair labour
practice to the Labour Court for adjudication if the employee
has
alleged that the employee has been subjected to an occupational
detriment by the employer in contravention of
section 3
of the
Protected Disclosures Act, 2000
, for having made a protected
disclosure defined in that Act.
(b)
A referral in terms of paragraph (a) is deemed to be made in
terms of subsection (5) (b).