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[2015] ZALCJHB 20
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Baloyi v Commission for Conciliation, Mediation And Arbitration and Others (JR 2634/13) [2015] ZALCJHB 20 (3 January 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGEMENT
Not Reportable
Case no: JR
2634/13
DATE: 03 FEBRUARY
2015
In the matter
between:
SUNDUZA DORAH
BALOYI
..........................................................
Applicant
And
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
....................................
First
Respondent
KUTSO ELIAS MPAI
N.O
................................................
Second
Respondent
EDCON (PTY)
LTD
..............................................................
Third
Respondent
Heard: 17
December 2014
Delivered: 03
February 2015
JUDGMENT
VAN
DER MERWE, AJ
Background
[1]
The Applicant was employed by the Third Respondent from 28 September
1992 and her dismissal took place on 28 August 2013 following
a
disciplinary enquiry. The Applicant then referred an unfair
dismissal dispute to the CCMA in Polokwane, Limpopo, on 18
September
2013.
A
Con-Arb
was scheduled
for
22 October 2013
but
the
Third Respondent objected to
arbitration taking place after
conciliation.
The matter
was
consequently conciliated
on 22 October 2013.
[2]
During conciliation, the Applicant signed a notice of
withdrawal and it is this notice of withdrawal that is the subject of
the
current review application before this court.
It
is alleged by the Applicant that the Second Respondent was harsh to
her and did not allow the Applicant an opportunity to explain
what
her case was and that the Second Respondent then started shouting at
her saying that the Applicant should not waste his time
but should
rather withdraw the dispute because the Applicant clearly did not
have a case against the Third Respondent.
[3]
According to the Applicant, she felt that she had no other choice but
to sign a notice of withdrawal of the dispute. In
that sense,
the Applicant submitted that she was coerced into withdrawing her
case on 22 October 2013.
[4] A review
application was brought to this Court in December 2013 requesting an
order as follows:
“
1.
REVIEWING AND CORRECTING OR SETTING
ASIDE
the proceedings conducted by the
Second Respondent acting under the auspices of the First Respondent
under case number LP6410-13
(“the withdrawal”);
2.
SUBSTITUTING
the finding of the in the Second Respondent that
the Applicant does not withdrawal the referral as stated in the
notice of withdrawal
signed by the Applicant, but that the matter
proceed to Arbitration accordingly
3.
ALTERNATIVE TO 2 ABOVE,
determining the dispute between the
Applicant and the Third Respondent in any manner the court deems
appropriate;
4.
FURTHER AND ALTERNATIVELY TO PRAYER 3 ABOVE:
4.1
Referring
the matter back to the first Respondent and ordering
a complete re-hearing of the matter to be conducted under the
auspices of the
First Respondent by the Commissioner other than the
Second Respondent
4.2
For the purposes of any subsequent Ruling that the time periods
between the withdrawal of the Dispute and any subsequent Award
be
disregarded
5.
DIRECTING
those of the Respondents who opposes the Application
to pay the costs jointly and severally on Attorney Client scale, the
one paying
the other to be absolved;
6.
GRANTING
further and/or alternative relief.”
Jurisdiction
[5]
I raised the issue of whether the Labour Court has the necessary
jurisdiction to entertain this review application and referred
the
Applicant’s representative to the judgment by Steenkamp J in
SAMWU
et al v the CCMA and Zenzeleni Cleaning and Transport Services CC
.
[1]
[6]
Upon reflection, the Applicant persisted with the review application
submitting the facts of the
SAMWU
-case differ from the facts
of this case.
[7]
I am of the view that the same principles as are stipulated in the
SAMWU
decision
apply
to the case before me.
Evaluation/Analysis
[8]
The starting point is to consider the effect of a withdrawal of a
dispute at the CCMA. This was diligently considered by Lagrange
J in
Ncaphayi
v CCMA and Others
.
[2]
He held that:
“
[25]
The essential issue is whether the commissioner was correct in
concluding that he could not entertain the applicant's unfair
dismissal claim unless the notice of withdrawal in respect of the
first referral was not set aside by this court.
[26] Implicit in the
commissioner's reasoning is an assumption that the submission of a
notice of withdrawal by a referring party
constitutes action which
this court can review. However, the withdrawal of a dispute
referral to the CCMA is not an act of
any functionary, but the action
of an employee party to a dispute. The commissioner plays no role in
that decision. This
is the first difficulty with the
commissioner's reasoning in arriving at his conclusion that he had no
jurisdiction to entertain
the matter.
[27] The second
reason relates to the effect of a withdrawal of a referral to
conciliation. The LRA does not deal with the
withdrawal of
matters referred to the CCMA and neither do the Rules of the CCMA.
Rule 13 of the Labour Court Rules merely deals
with the procedure to
be followed if a party wishes to withdraw proceedings. It is
instructive to note how the High Court has considered
the effect of a
withdrawal of a matter. It has been held that the withdrawal of a
matter by a party is akin to an order of absolution
from the
instance. Ordinarily, an order of absolution from the instance does
not prevent a party from reinstituting proceedings
and the defendant
absolved in the first proceedings will not be able to raise the
exception rei judicatae
if sued again on the same cause of
action.
[28] If the
withdrawal of a matter in the High Court at a stage when it is ripe
for hearing does not necessarily prevent the institution
of fresh
proceedings, it would be anomalous if the withdrawal of a matter at
the conciliation stage of dispute resolution under
the LRA - when no
decision on the merits of the dispute is even possible - precluded a
party from making a fresh referral. Obviously,
if the withdrawal
under consideration is part and parcel of a final settlement of the
dispute the situation would be quite different.
However, in this
case, the withdrawal was at the applicant's own instance and not an
intrinsic part of a settlement agreement.
It should also be mentioned
that the commissioner presiding at the first conciliation did not
issue a certificate of outcome so
the question of whether or not that
would have to be set aside before the matter could be reconsidered
does not arise in this case.”
[
9
]
The withdrawal of the dispute by the Applicant during conciliation is
akin to an order of absolution from the instance. That does
not
deprive the CCMA of jurisdiction to receive and deal with a fresh
referral.
[10]
Whether that referral has any prospects of success and whether the
Ap
plicant will succeed in
her
application for condonation, is for the arbitrator
to decide.
[11]
As stated in the
SAMWU
-case,
[3]
it is always open to a claimant to institute a new action or
application (or file a fresh referral), subject to specific defences
that may be raised by the defendant or respondent.
[12]
Also
,
a
notice of withdrawal in the CCMA may itself be withdrawn as stated by
Shai AJ in
Kgobokoe
v CCMA and Others
:
[4]
‘
[56]
On the basis of the above, I am of the view that a firm principle is
established in this case and I see no reason why it should
not be
authority for the proposition that a withdrawal can be withdrawn....’
[13]
For these reasons, I find that i
t
is not
for this Court to set aside the Applicant’s notice of
withdrawal. The Applicant can herself withdraw her withdrawal
and
refer a fresh referral to the CCMA. Such referral will obviously be
subject to condonation and any specific defences that may
be raised
by the
respondent – including the
defence
of election.
Order
[14] In the result,
I make the following order:
14.1
T
he Applicant's Review Application is
dismissed.
14.2
T
here is no order as to costs.
G
van der Merwe
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicant: Ms T Mangena – Mangena & Associates
Attorneys
For
the Third Respondent: Unopposed
[1]
(
J
2448/13)
[2013]
ZALCJHB 303
(21
November 2013)
[2]
(2011)
32
ILJ
402 (LC) paras [25] – [28].
[3]
Supra
n1
at para 16.
[4]
(2012) 33
ILJ
235 (LC) at paras 54–58, relying on
Roupell
v Metal Art (Pty) Ltd
1972
(4) SA 300
(W).