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[2015] ZALCJHB 41
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Heymann v GHH Mining Machines (Pty) Ltd and Another (JS237/14) [2015] ZALCJHB 41 (12 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS237/14
DATE: 12 FEBRUARY
2015
Not Reportable
HEYMANN
TOMMY
...............................................................................................................
Applicant
And
GHH MINING
MACHINES (PTY)
LTD
...................................................................
First
Respondent
SANDRA
BAIN
.........................................................................................................
Second
Respondent
Heard: 1 August
2014
Delivered:
12 February 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This matter concerns a point
in
limine
raised by the First Respondent
in response to the Applicant’s statement of case. Central to
the objection is that this Court
lacks jurisdiction to adjudicate the
Applicant’s claims of alleged unfair dismissal and unfair
labour practice.
Background:
[2]
The Applicant was employed with effect from
1 November 2011 as a Training and Development Manager. On 2 August
2013, he was issued
with a notice to attend a disciplinary enquiry to
answer to allegations pertaining to gross negligence and refusal to
obey a lawful
and reasonable instruction. On 20 August 2013, the
chairperson of the disciplinary enquiry had recommended that the
applicant be
demoted. The Applicant had declined the offer of a
demotion, prompting the First Respondent to issue him with a final
written warning.
Following an appeal, the final written warning
was reduced to a written warning.
[3]
Still aggrieved with the written warning,
the Applicant had then referred an alleged unfair labour practice
dispute to the CCMA
on 24 October 2013. Conciliation proceedings held
on 25 November 2013 failed to resolve the dispute and the Applicant
had referred
it for arbitration. The dispute was subsequently
withdrawn on 10 March 2014.
[4]
Subsequent to the written warning, the
Applicant was suspended on 22 October 2013 and thereafter subjected
to another disciplinary
enquiry on 25 November 2013. He was dismissed
on 3 December 2013 on account of alleged dereliction of duties. An
appeal hearing
on 20 January 2014 upheld his dismissal.
[5]
The Applicant referred an alleged unfair
dismissal dispute to the CCMA on 23 December 2013. A conciliation
hearing held on 27 January
2014 failed to resolve the dispute. The
Applicant contends that he had referred the dispute for arbitration
whereas the First Respondent
contends that no such referral was
lodged.
[6]
There is a dispute as to how the matter
ended up in this Court. The Applicant’s contention is that
there was an agreement
between the parties on 7 March 2014 that since
his dispute related to an unfair labour practice and unfair
dismissal, the matter
should be referred to this Court. He had
further contended that the agreement was in terms of section 158 (2)
(b) of the Labour
Relations Act as the matter was complex, had raised
legal issues, and also due to the ‘substantial and procedural
errors
involved in the matter’.
The submissions:
[7]
The First Respondent’s contention was
that the Court lacked jurisdiction to adjudicate the dispute on any
of the allegations
made by the Applicant in his statement of case. It
was submitted that on 28 March 2014, it was brought to the attention
of the
Applicant’s attorney of record that the court lacked
jurisdiction; that the First Respondent had not agreed to the
jurisdiction
of the court as alleged; that the applicant’s
attorneys had merely informed the First Respondent’s attorneys
that the
Applicant intended to proceed with litigation in this Court.
It was further submitted that the Applicant had on his own accord,
withdrawn the unfair labour practice dispute at the CCMA on 7 March
2014.
[8]
It was submitted on behalf of the Applicant
that there was indeed an agreement to refer the dispute to this
Court, and that if this
was not the case, the dispute would have been
left for the CCMA to determine. Reference was made to correspondence
of 7 March 2014
from the First Respondent’s attorneys, which
stated that;
“
2.
We confirm that the unfair labour practice arbitration scheduled for
Monday 10 March 2014 will not proceed and the matter will
be joint
with your client’s unfair dismissal dispute and perused in the
Labour Court
“
(Sic)
[9]
It was further submitted on behalf of the
applicant that reliance was also placed on s158 (2) of the LRA, which
provide that where
it becomes apparent that the issue in dispute
should have been referred to arbitration, the Labour Court has the
power to stay
the litigation proceedings and order that the dispute
be referred to arbitration, or with the consent of the parties,
continue
with the proceedings with the Court sitting as an
arbitrator.
Evaluation:
[10]
Where
the jurisdiction of the Labour Court is placed in dispute, its duty
is to determine the true nature of the issue in dispute
between the
parties, irrespective of how an applicant may have chosen to label or
describe that dispute. The Court is not bound
by the description of
the dispute as may be articulated by an applicant
[1]
,
nor should it assume jurisdiction over a dispute simply on the
parties’ say so.
[11]
The true nature of the issue in dispute can
simply be gleaned from the Applicant’s own statement of case,
and more in particularly,
from the type of relief that he seeks. The
Applicant seeks an order
inter alia
;
“
1
(a) That the outcome of the incapacity hearing and the appeal thereto
to be an unfair labour practice, in the light of several
substantial
and procedural errors involved.
(b) That the
applicant was unfairly dismissed, and that the dismissal be set
aside.
2. That the
applicant be reinstated in the employment with the first respondent
with full benefits and the position he held before
the unfair labour
practice and unfair dismissal”
[12]
Based on contents of the statement of case
and the relief that the Applicant seeks, it is apparent that the
nature of his dispute
pertains to an alleged unfair labour practice,
and an alleged unfair dismissal on account of incapacity. Section
191of the LRA
deals with disputes about unfair dismissals and unfair
labour practices. The relevant subsections are;
“
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-
(i)
the employee has alleged that the reason for dismissal is related to
the employee’s conduct or capacity. Unless paragraph
(b)
(iii) applies
………
.
(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;
……………
.
……………
.
(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”
[13]
The Applicant in contending that the Court
has jurisdiction does not rely on the provisions of
sections 191
(5)
(b) or
191
(13) (a) of the LRA. Ordinarily therefore, his dispute
remains to be determined by the CCMA. There are of course exceptions
to
the rule. These are to be found in
section 191
(6) of the LRA,
which provides that the Director of the CCMA must refer the dispute
to this Court if she decides on application
by any party to the
dispute that it would be appropriate to do so having taken into
account a variety of factors.
[14]
It is common cause that in this case that
no such application was made by either party. It therefore follows
that the Applicant
cannot on his own, decide to approach the Court on
that basis that the matter is complex or that it raises legal issues.
On the
contrary, and having had regard to the contents of the
statement of claim, there appears to be nothing complex about the
facts
of this case, nor are there any legal issues that the CCMA is
not adequately equipped to deal with.
[15]
The Applicant also sought to rely on the
provisions of
section 158
(2) of the LRA in contending that the Court
has the requisite jurisdiction. This section provides that;
“
If
at any stage after the dispute has been referred to the Labour Court,
it becomes apparent that the dispute ought to have been
referred to
arbitration, the Court may-
(a)
Stay the proceedings and refer the
dispute to arbitration; or
(b)
With the consent of the parties and
if it is expedient to do so, continue with the proceedings with the
Court sitting as an arbitrator,
in which case the Court may only make
any order that a commissioner or arbitrator would have been entitled
to make.”
[16]
By
virtue of the use of the word ‘
may’
in these provisions, the Labour Court
does
not
have to assume jurisdiction over the dispute. It still has discretion
to act under subsection (a) or (b), bearing in mind that
any election
under (b) is subject to the consent of the parties. Based on his
statement of case, this Court cannot assume jurisdiction
over the
alleged unfair labour practice dispute as well as the alleged unfair
dismissal dispute simply because the Applicant had
deemed it fit to
bring such issues before it in the absence of compliance with the
procedures and provisions of
section 191
(6) of the LRA. The Court it
is not the proper forum to deal with such issues simply because the
Court may now be seized with it.
This view is further fortified by
the decision in
Parliament
of the Republic of SA v Charlton
[2]
where the LAC held that;
‘
Therefore,
once it is apparent to the court that the dispute is one that ought
to have been referred to arbitration, the court may
stay the
proceedings and refer the dispute to arbitration or it may, with the
consent of the parties, and if it is expedient to
do so, continue
with the proceedings sitting as an arbitrator. It cannot deal with
the dispute outside the ambit of these provisions.
Accordingly, it
has no power to proceed to adjudicate the dispute on the merits
simply because it is already seized with the matter.
To do so would
be in conflict with the provisions of
s 157(5)
and
s 158(2)
of the
LRA.
And
“
In
resolving labour disputes a clear line must be drawn between the
different fora that have been set up by the LRA……..’
[17]
In regards to the issue of consent as
may be contemplated in
section 158
(2) (b), the First Respondent had
vehemently disputed that such consent was granted. The alleged
consent according to the Applicant
emanates from the correspondence
from First Respondent’s attorneys of record following the
withdrawal of the initial unfair
labour practice dispute before the
CCMA. The difficulty with the consent relied upon by the Applicant is
that on a proper interpretation
of
section 158
(2) (b) of the LRA,
such consent must be obtained “
at
any stage after the dispute has been referred to the Labour Court
,
and not before the matter is referred
to the Court.
[18]
In
this case, following the withdrawal of the unfair labour practice
dispute at the CCMA and before the dispute could be referred
to the
Court, the Applicant had assumed that there was such consent. In my
view, in the absence of the provisions of
section 191
(6) of the LRA
having been complied with, the parties cannot on their own decide
where their dispute should be determined. To do
so would as it was
pointed out in
Parliament
of the Republic of SA v Charlton,
would
be in conflict with the provisions of
section 157
(5)
[3]
.
This Court cannot countenance a situation where parties pick and
chose which forum must determine their dispute, or in the
alternative,
refer a dispute to it with the hope that the Court would
exercise its discretion in terms of
section 158
(2) (b) and assume
jurisdiction over the matter. The mere fact that the parties may even
consent after the dispute has been referred
to the Court does not
imply that the Court will readily assume jurisdiction. The Court
still has to exercise its discretion even
if there is consent. To
allow parties to forum shop will lead to the scheme of dispute
resolution as set out in the LRA being undermined,
and would burden
this Court with matters that should not in the first place be before
it. In these circumstances, the point
in
limine
raised by the First Respondent should be upheld.
Costs:
[19]
The statement of case was served on the
First Respondent on 26 March 2014. The First Respondent’s
contention is that on 28
March 2014, its attorneys had brought it to
the attention of the Applicant’s attorneys that the Court
lacked jurisdiction
over the matter. In the correspondence, it was
pointed out to the Applicant’s attorneys that there was no
agreement to the
jurisdiction of this court as the Applicant had
alleged in his statement of case. The Applicant’s attorneys
were given until
1 April 2014 to withdraw the statement of case
failing which the First Respondent will be forced to serve and file
opposing papers,
raise the preliminary points, and seek a punitive
cost order. That deadline came and went without the matter being
withdrawn.
[20]
On 3 March 2014, the First Respondent had
indicated to the Applicant’s attorneys of record that since the
applicant was
dominus litis
,
he did not require the First Respondent’s consent in the event
that he wished to litigate in this Court. On 7 March 2014,
the First
Respondent’s attorney had confirmed that the unfair labour
practice dispute was withdrawn, and that the matter
will be joined
with the applicant’s unfair dismissal dispute to be pursued in
the Court. In the event that it may be argued
that the correspondence
of 7 March 2014 may have been equivocal, any uncertainty in that
regards was clarified with the First Respondent’s
attorneys’
correspondence of 28 March 2014. The applicant was warned of the
folly of persisting with this claim in this Court,
and had failed to
heed the warning. This had caused the First Respondent to file
opposing papers and at unnecessary legal expenses.
I do not see any
reason, having taken into account considerations of law and fairness,
why the Applicant should not be burdened
with these costs
Order:
i.
The point
in
limine
raised by the First Respondent
is upheld.
ii.
The Court lacks the requisite jurisdiction
to determine the Applicant’s claim.
iii.
The Applicant is ordered to pay the First
Respondent’s costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant: Adv. Artsen
Instructed
by: Buks Croucamp Attorneys
On
behalf of First Respondent: Mr. J Du Randt of Du Randt Du Toit Pelser
Attorneys
[1]
National
Union of Metalworkers of SA and Others v Bader Bop (Pty) Ltd and
Another 2003) 24 ILJ 305 (CC) at para.52.
[2]
(2010)
31 ILJ 2353 (LAC) at paras 34 – 35
[3]
“
(5)
Except as provided in
section 158
(2), the Labour Court does not
have jurisdiction to adjudicate an unresolved dispute if this Act
requires the dispute to be resolved
through arbitration”