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[2015] ZALCJHB 7
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Tshehla v Emfuleni Local Municipality (JS 619/13) [2015] ZALCJHB 7 (21 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT,
JOHANNESBURG
CASE
NO
:
JS
619/13
DATE:
21 JANUARY 2015
Reportable
In
the matter between
REGINALD
TSHEHLA
...................................................................
Applicant
And
EMFULENI
LOCAL MUNICIPALITY
................................
First
Respondent
Heard:
05 September 2014
Delivered:
21 January 2015
Summary:
Statement of claim- unfair labour practice and unfair discrimination.
Court lacks jurisdiction to entertain matters that
could be resolved
by arbitration in terms of the LRA. Unfair labour practice dispute
can be resolved through arbitration- section
157(5) of the LRA.
Referral of disputes to Court in terms of section 10 of the EEA.
Referring disputes under Chapter 3 of the EEA
to court before
exhausting the enforcement procedures provided for in Chapter 5 of
the EEA.
JUDGMENT
Molahlehi
J
Introduction
[1]
The
applicant in this matter has filed both the unfair labour practice
and unfair discrimination claims with this Court. The
claim was
filed outside the prescribed period and for that reason the applicant
has applied for condonation for the late filing
of his statement of
case. The respondent has also applied for condonation for the
late filing of its statement of response.
[2]
The
respondent has raised two points
in
limine
relating to the jurisdiction of the Court to entertain the
applicant’s claim. These issues are dealt with first for
they are determinative of the need to consider the condonation
application.
The
background facts
[3]
The
applicant is an employee of the respondent who was appointed as an
administrative assistance during December 2007 at the salary
level 9.
He was during 2009 transferred to what later came to be known
as the employment equity department.
[4]
The
employment equity department was established following an
investigation by the department of labour concerning compliance with
the provisions of the Employment Equity Act
[1]
(the EEA). The department of labour had recommended that the
respondent should establish a dedicated unit to deal with issues
of
employment equity. In compliance with the recommendations of
the department of labour the respondent appointed the manager:
employment equity, Mr Mahlaba. The applicant was then
transferred to the unit to assist Mr Mahlaba.
[5]
Because
of the workload in the unit the respondent took a decision
to
advertise the positions of the senior administrative officer which is
at salary level 5 and two administrative officers which
are at salary
level 6. The candidates who were successful in the positions as
advertised were appointed on a year’s
fixed term contracts.
[6]
There
seem to be some dispute as to whether the applicant did apply for the
position that he is contending he ought to have been
appointed in.
That issue is not at this stage material. It should
however be pointed out that the applicant contends
that he did apply
for the position of administrative officer level 6. He contends
that he ought to have been appointed above
the two female persons who
were appointed because he has the experience.
[7]
The
applicant contends that the respondent did not appoint him for the
position he had applied for because of his union membership.
The
applicant was unhappy with what had happened to him and accordingly
filed a grievance.
[8]
The
grievance was not resolved and accordingly the applicant referred a
dispute to the first respondent (the bargaining council)
for
conciliation. In the referral form the applicant listed the
legal issues that had arisen as follows:
(a)
“
Non
adherence of the Employer to Internal Policies- Transfer Policy,
(b)
Non
adherence of the Employer to Internal Policies- Affirmative
Action and Employment Equity Targets- Recruitment Policy,
Employment
Equity. . .
(c)
Non
adherence to the Employment Equity act.”
[9]
The
dispute remained unresolved at the bargaining council and the
certificate of non-resolution was issued by the bargaining council’s
panellist who indicated that the dispute concerning discrimination
remains unresolved and it was for that reason that the applicant
launched the present proceedings.
The
issues
[10]
As
indicated earlier the respondent has raised a point
in
limine
concerning the jurisdiction of the Court to determine the three
disputes which the applicant has raised, namely the unfair labour
practice, the discrimination and affirmative action disputes.
[11]
In
relation to the unfair labour practice dispute the respondent
contends that the Court lacks jurisdiction to entertain the matter
because it concerns a dispute that falls under the jurisdiction of
the bargaining council.
[12]
The
disputes concerning unfair labour practice is dealt with under
section 191 of the Labour Relations Act
[2]
(the LRA),
[3]
which provides
amongst others that the CCMA or the bargaining council must arbitrate
a dispute that remained unresolved at the
conciliation process. This
means that the LRA requires that disputes which remain unresolved
after their referral to conciliation
must be arbitrated by the CCMA
or the bargaining council. In this regard section 157(5) of the
LRA states that the Labour
Court does not have jurisdiction to
adjudicate an unresolved dispute if the LRA requires that such
dispute should be resolved through
arbitration.
[13]
It
was argued on behalf of the applicant that the respondent failed to
raise the issue of jurisdiction timeously as required by
the
bargaining council’s constitution and therefore has lost its
right to raise the issue. The copy of the constitution
of the
bargaining council was not availed to the Court. Assuming that
indeed the constitution of the bargaining council does
require
jurisdictional points to be raised within a reasonable time that
would not assist the case of the applicant for the following
reason:-
(a)
It
is trite in our law that a jurisdictional point can be raised at any
stage of the proceedings including at the hearing of the
matter. I
therefore find that the fact that the respondent did not raise the
jurisdictional point timeously is irrelevant.
In any case the
provision of the constitution is of no legal force and effect in that
the parties seek to impose jurisdiction
on the Court by default. In
this respect the Labour Appeal Court held in
South
African Motor Industry Employers’ Association v NUMSA
,
[4]
held that the Court cannot assume jurisdiction on a matter to be
determined by the CCMA even if the parties purported to confer
such
jurisdiction by agreement.
[14]
It
is thus clear from the above that the Court in the present instance
does not have jurisdiction to entertain the unfair labour
practice
dispute which the applicant had referred to the bargaining council.
[15]
It
was argued on behalf of the applicant that should the Court find that
it did not have jurisdiction to entertain the matter it
should
exercise its powers under section 158(2) of the LRA and refer the
matter back to the bargaining council for arbitration.
[16]
It
is generally accepted that in applying the provisions of section
158(2) of the LRA the Court has a discretion to exercise.
In
Verity
v University of the Witwatersrand
,
[5]
the Court held that section 158 (2) of the LRA applies only when it
becomes apparent during the course of adjudication that the
matter
should have been referred to arbitration. In arriving at
this conclusion the Court in that case had the following
to say:
“
22.
The
provision of section 158(2) of the Act does not apply to an instance
where a party has brought a main claim that falls under
the
jurisdiction of this Court, loses and now wants to rely on an
alternative claim that should have been referred to the CCMA
or
relevant bargaining council. It applies to an instance where it
only becomes clear during the proceedings what the true
nature of the
dismissal was. It is important for a party who wishes to bring
a claim to decide carefully whether he wants
to bring it to this
court or to the relevant CCMA or bargaining council. Section 158(2)
of the Act was not enacted to deal with
a situation as in the present
case. It does not cover alternative claims that fall under the
jurisdiction of the CCMA or
bargaining councils.
23.
I am aware that labour matters should be dealt with speedily. There
is however a duty on an applicant to bring his or her claim
to the
relevant body and should not be guided by mere expedience. I do not
believe that this is a matter where the court should
use its
discretion to entertain the claim. Nothing prevents the applicant
from referring the dispute to the CCMA with the necessary
application
for condonation. Nothing also prevents the parties from transcribing
a record of the proceedings and placing it before
a commissioner for
determination.”
[17]
In
Ngcobo
v KwaZulu Natal Health Service
,
[6]
the Court exercised its discretion in terms of section 158(2) of the
LRA because of the ambiguity in the collective agreement as
to where
the dispute was to be referred once conciliation has failed.
[18]
In
my view the facts and the circumstances of the present case do not
support the view that the Court should exercise its discretion
in
favour of staying the proceedings and referring the matter back to
the bargaining council for arbitration. The applicant
elected
to bring this matter before this Court after receiving the
certificate of outcome indicating that the dispute concerning
discrimination remained unresolved. It is apparent that the
certificate was issued in light of the issues listed in the referral
form. The certificate did not however take away the right of
the applicant to refer the alleged unfair labour practice dispute
to
the bargaining council for arbitration. In other words the
applicant had the right to refer the discrimination dispute
to this
Court, once all the jurisdictional facts have been satisfied, and at
the same time refer the unfair labour practice dispute
to the
bargaining council.
[7]
Assuming
that there was a proper basis for referring the discrimination
dispute to the Labour Court, nothing in law prevented the
applicant
from also requesting the bargaining council to arbitrate the matter.
The applicant was assisted by his union and
later by attorneys.
It has been suggested that the applicant was incorrectly
advised by the union to refer the unfair labour
practice to the
Court. There is however no indication as to why his attorneys
on assuming the responsibility of the matter
did not advice that the
unfair labour practice dispute should be withdrawn from the Court and
be referred to the bargaining council.
[19]
The
argument that the refusal to exercise the discretion in favour of
directing the bargaining council to arbitrate the matter will
contribute to a further delay in the finalisation of the dispute
between the parties is noted. The applicant is however the author
of
this and can therefore not look to the Court for assistance. This
is not a case where the true nature of the dispute became
clear
during adjudication by the Court. The applicant chose to refer
the unfair labour practice dispute to the Court despite
the law being
clear that such a dispute ought to be referred to the bargaining
council.
[20]
It
should be apparent from the above that this Court does not have
jurisdiction to entertain the unfair labour practice dispute
which
the applicant has referred for adjudication. There is also no
basis for referring the matter to the bargaining council
in terms of
section 158(2) of the LRA. It is for the applicant to decide whether
he wantsto pursue the unfair labour dispute in
the bargaining council
and to do that by following the appropriate channels.
[21]
I
now turn to deal with the discrimination dispute. In the
statement of claim the applicant pleads in relation to the alleged
unfair discrimination that in terms of the Employment Equity Targets
preference ought to have been given to him as an African male.
The
alleged discrimination in this respect is based on gender. He
further alleges that he was not appointed because
he was a shop
steward. In summarising the legal consequences that flows from the
averments made regarding the alleged discrimination
in the statement
of case the applicant pleads that:
(a)
The
respondent in not appointing him failed to adhere to its internal
policy on transfer.
(b)
The
respondent failed to adhere to its internal policies regarding;
transfer policy; affirmative action and employment equity targets
to
eliminate unfair discrimination.
[22]
The
prohibition against discrimination is dealt with under Chapter 2 of
the EEA . The substantive aspects of what constitutes
or does
not constitute discrimination are dealt with between sections 5 and 9
of the EEA.
[23]
The
procedure for dealing with disputes that arise from Chapter 2 of the
EEA, which is the case in the present instance, is dealt
with in
terms of section 10 of the EEA. Section 10 of the EEA reads as
follows:
“
In
this section, the word “dispute” excludes a dispute about
an unfair dismissal, which must be referred to the appropriate
body
for conciliation and arbitration or adjudication in terms of Chapter
VIII of the Labour Relations Act.
1)
Any
party to a dispute concerning this Chapter may refer the dispute in
writing to the CCMA within six months after the act or omission
that
allegedly constitutes unfair discrimination.
2)
The
CCMA may at any time permit a party that shows good cause to refer a
dispute after the relevant time limit set out in subsection
(2).
3)
The
party that refers a dispute must satisfy the CCMA that-
(a)
a
copy of the referral has been served on every other party to the
dispute; and
(b)
the
referring party has made a reasonable attempt to resolve the dispute.
4)
The
CCMA must attempt to resolve the dispute through conciliation.
5)
If
the dispute remains unresolved after conciliation-
(a)
any
party to the dispute may refer it to the Labour Court for
adjudication; or
(b)
all
the parties to the dispute may consent to arbitration of the dispute.
6)
The
relevant provisions of Parts C and D of Chapter VII of the Labour
Relations Act, with the changes required by context, apply
in respect
of a dispute in terms of this Chapter.
[24]
It
is clear from the reading of section 10 of the EEA that the
legislature had intended that disputes concerning discrimination
should be conciliated by the CCMA and not the bargaining councils.
This means that the bargaining councils do not have
jurisdiction
to conciliate disputes concerning discrimination. The
bargaining councils are creatures of the statute and therefore cannot
assume powers which they do not have in terms of the law.
[25]
The
bargaining council in the present instance lacked jurisdiction to
conciliate the dispute concerning the alleged discrimination.
Accordingly in law the dispute as formulated by the applicant
in its pleadings was never conciliated by the relevant forum
and thus
depriving the Court of the jurisdiction to adjudicate the dispute.
[26]
The
other problem faced by the applicant in seeking to have the Court to
adjudicate his claim is that the pleaded case in the main
is based on
the provisions of Chapter of 5 of the EEA. It follows therefore
that in order to succeed he had to show that
he has complied with the
provisions of section 34 of the EEA. In terms of section 34 of
the EEA any employee or trade union
representative may raise an
alleged contravention of the EEA with a range of persons and
bodies.
[8]
In dealing with
the same issue as, that in the present case, the Labour Appeal Court
in
Dudley
v City of Cape Town
,
[9]
held that:
“
.
. . it is not competent to institute proceedings in the Labour Court
in respect of an alleged breach of any obligation under chapter
III
of the EEA, prior to the exhaustion of the enforcement procedure
provided for in chapter V of the EEA.”
[27]
It
is common cause in the present instance that the applicant filed the
matter to the Labour Court without having exhausted the
provisions of
Chapter V of the EEA.
[28]
In
the premises the applicant’s claim stands to fail for the
reason that the Court lacks jurisdiction to adjudicate the matter.
I
do not however believe that it would be appropriate to allow costs to
follow the results.
Order
[29]
In
the circumstances the following order is made:
1.
The
Court lacks jurisdiction to entertain applicant’s unfair labour
practice and the discrimination disputes.
2.
The
applicant’s claim is dismissed.
3.
There
is no order as to costs.
E MOLAHLEHI
Judge
of the Labour Court Johannesburg
Appearances:
For the Applicant
: Advocate A Thomson
Instructed by :
Chantell Tim Incorporated
For the
Respondent : P Nkutha
Instructed
by : Nkaiseng Attorneys
[1]
Act
55 of 1988
[2]
Act
66 of 1995.
[3]
Act
number 65 of 1995.
[4]
[1997]9
BLLR 1157 (LAC).
[5]
[2009]
8 BLLR 838
(LC).
[6]
[1999]
2 BLLR 148 (LC).
[7]
See
Ditsamai
v Gauteng Shared Services Centre
[2009] 5 BLLR 456
(LC); (2009) 30 ILJ 2072 (LC) where the Court held
that: “
[63]
Whilst the cause of action in both the constructive
dismissal
and the sexual harassment cases may arise in the same facts and
circumstances, the remedies are located in different
statutes. The
remedies for constructive dismissal and unfair discrimination are
found in the LRA and the EEA respectively.
[64]
In terms of the constructive dismissal, the matter is firstly,
before reaching arbitration or adjudication, processed through
conciliation in terms of section 135 of the LRA. If conciliation
failed the employee is entitled to refer the matter to arbitration
under the auspices of the CCMA or a bargaining council whichever is
applicable. However, dismissal disputes, referred to conciliation
in
terms of section 187 of the LRA, are adjudicated by the Labour Court
if conciliation fails.”
[8]
See
Labour Law through Cases page EEA-47 [Issue 18].
[9]
(2008)29
ILJ 2685 (LAC). See also
Solidarity
and Others v Department of Correctional Services and Others,
Solidarity and Others v Department of Correctional Services
and
Others
[2014]
1 BLLR 76
(LC).