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[2015] ZALCJHB 40
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Solidarity obo Members v SFF Incorporated Association Not For Gain and Others (JR197/14) [2015] ZALCJHB 40 (13 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR197/14
DATE:
13 FEBRUARY 2015
Not
Reportable
SOLIDARITY obo
MEMBERS
.............................................................................................
Applicants
And
SFF
INCORPORATED ASSOCIATION NOT FOR
GAIN
.....................................
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
......................................................................
Second
Respondent
COMMISSIONER
STEPHAN CLOETE
NO
.........................................................
Third
Respondent
Heard:
20 March 2014
Delivered:
13 February 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an unopposed application to review and set aside a
jurisdictional ruling issued by the Third Respondent (Commissioner)
on 7 August 2013 under case number WECT 10752/13. In his ruling, the
Commissioner had held that the Commission lacked jurisdiction
to
determine the dispute before him.
Background:
[2]
This dispute is in respect of 24 of Solidarity Members listed in
paragraph 3.2 of its founding affidavit who are in the employ
of the
First Respondent. They were issued with letters on 5 July 2013
informing them that the First Respondent had erroneously
made
overpayments in respect of performance bonuses for the financial year
2010/2011. The employees were further informed of the
exact amount
allegedly overpaid, and were notified that the First Respondent
intended to recover those amounts by making reductions
from their
salaries. The employees had then submitted a grievance, which however
could not be resolved.
[3]
Solidarity held the view that the First Respondent had acted
negligently and arbitrarily by insisting that the employees should
pay back the amounts, especially since the payments in respect of the
incentive bonus were made in 2011. It then referred an unfair
labour
practice dispute to the CCMA. A con/arb hearing held on 27 July 2013
was unable to resolve the dispute, resulting in a certificate
of
outcome being issued.
The arbitration
proceedings and the award:
[4]
At the arbitration proceedings, the Commissioner had identified the
issue to be determined as whether the First Respondent’s
intention to deduct from the employees’ salaries an overpayment
made in terms of an incentive bonus amounted to an unfair
labour
practice. The First Respondent had raised a preliminary point to the
effect that the CCMA lacked jurisdiction since the
dispute did not
relate to an unfair labour practice.
[5]
In considering the preliminary point, the Commissioner had regard to
the definition of an unfair labour practice in section
186 (2) (a) of
the LRA, and concluded that from the evidence of the parties, the
dispute fell outside of that definition. The Commissioner
also held
that the recovering of amounts that were overpaid to an employee must
be dealt with in terms of section 34 of the Basic
Conditions of
Employment Act, and thus the CCMA lacked jurisdiction.
The
review application:
[6]
In terms of the Applicants’ Notice of Motion, it was contended
that this review application was brought before the Court
in terms
section 145 and/or section 158 (1) (g) of the Labour Relations Act
(“the LRA”) on the basis that several defects
existed in
the ruling. In this regard, it was further contended that the
Commissioner exceeded his powers, committed gross irregularities,
did
not properly or rationally and justifiably apply his mind to the
facts and the law, did not properly apply the provisions and
the
principles of the LRA, and further that he did not reach conclusions
as would have been reached by a reasonable decision maker.
[7]
The Applicants’ main contention was that the Commissioner had
dealt with one aspect of the dispute before him by enquiring
whether
the dispute related to an unfair labour practice or not, and whether
the Commission had the necessary jurisdiction. It
was further
contended that the Commissioner incorrectly held that it was clear
that the dispute fell outside of the definition
of an unfair labour
practice or that the CCMA lacked jurisdiction.
The
applicable test:
[8]
In regards to the review test applicable in respect of jurisdictional
rulings, the Labour Appeal Court had long held that the
test is
simply whether or not the ruling was correct, and that the
rationality or reasonableness test does not apply
[1]
.
This test was recently restated by the Labour Appeal Court in
Phaka
and 19 others v Commissioner Ronnie Bracks and others
[2]
in
the following terms:
‘
The
appellants sought review of the award of the arbitrator on the basis
that the conclusion reached by him was not a decision that
a
reasonable decision- maker or arbitrator in that position could have
reached. This is an incorrect approach. When the jurisdiction
of the
arbitrator is in question the issue is whether he objectively had
jurisdiction in law and fact. The arbitrator’s finding
was that
as the appellants were not employees he had no jurisdiction to
determine their referrals of unfair dismissal and unfair
labour
practice disputes to the bargaining council. The court on review in
such an instance is required to determine whether that
finding was
correct. The arbitrator either had jurisdiction or he did not. A
finding that he had jurisdiction because he might
reasonably have
assumed as much is wholly untenable in principle. No legal power may
be exercised without authority. The standard
of review enunciated in
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
(2008
(2) SA 24
(CC) that in order to succeed in a review, the applicant
must establish that the award was one that could not have been made
by
a reasonable decision-maker, applies only to the review of
determinations of the fairness of a dismissal or labour practice. It
has no application to the determination of jurisdiction
.’
[9]
Thus the proper inquiry in this case is whether the Commissioner was
correct in finding that he lacked jurisdiction because
the dispute
before him did not pertain to an unfair labour practice as
contemplated in section 186 (2) (a) of the LRA. The Constitutional
Court in
Gcaba
v Minister for Safety and Security and Other
held that jurisdiction means ‘
the
power or competence of a court to hear and determine an issue between
parties’
[3]
.
In
SA
Rugby Players Association and Others v S A Rugby (Pty) Ltd and
Others
[4]
,
the
Labour Appeal Court held that:
‘
The
CCMA is a creature of statute and is not a court of law. As a general
rule, it cannot decide its own jurisdiction. It can only
make a
ruling for convenience. Whether it has jurisdiction or not in a
particular matter is a matter to be decided by the Labour
Court.....
The CCMA may not grant itself jurisdiction which it does not have.
Nor may it deprive itself of jurisdiction by making
a wrong finding
that it lacks jurisdiction which it actually has. There is, however,
nothing wrong with the CCMA enquiring whether
it has jurisdiction in
a particular matter provided it is understood that it does so for
purposes of convenience and not because
its decision on such an issue
is binding in law on the parties...’
[10]
It follows from the above principles that the CCMA can only determine
disputes that fall within its jurisdiction as enjoined
by the
provisions of the LRA and other applicable pieces of legislation. In
determining whether it has jurisdiction, the CCMA is
not con
f
ined
to how the parties wish to label their disputes
[5]
,
but rather whether the claim is one which it competent to hear and
determine. It further follows that where the CCMA or Baragining
Council assumes determines disputes which do not fall within their
jurisdiction, any outcome in that regard will become a nullity.
[11]
In determining whether the decision arrived at by the Commissioner in
declining jurisdiction was correct, the facts placed
before him have
to be looked at. It was the Applicants’ case that the intention
or decision of the First Respondent to deduct
from employees’
salaries the amounts allegedly overpaid amounted to an unfair labour
practice. In his analysis, the Commissioner
had correctly indicated
that he was required to satisfy himself that he had the necessary
jurisdiction to hear the matter before
him by having regard to the
definition of unfair labour practice as contemplated in section 186
(2) (a) of the LRA. Having concluded
that the dispute did not fall
within this definition, he had then had regard to the provisions of
section 34 (5) of the Basic Conditions
of Employment Act and
concluded that the recovering of amounts must be dealt with in terms
of this provision.
[12]
It is not apparent from the Applicants’ submissions or
pleadings for that matter as to on what basis it is alleged that
the
dispute fell within the realm of an unfair labour practice. Section
186(2) of the Labour Relations Act (LRA) defines “Unfair
labour
Practice” as;
“
any
unfair act or omission that arises between an employer and an
employee involving-
(a) unfair
conduct by the employer relating to the promotion, demotion,
probation (excluding dismissals of probationers) or training
of an
employee or relating to the provision of benefits to an employee);
(b) the unfair
suspension of an employee or any other unfair disciplinary action
short of dismissal in respect of an employee;
(c) a failure or
refusal by an employer to reinstate or re-employ a former employee in
terms of any agreement; and
(d) an
occupational detriment, other than dismissal, in contravention of the
Protected Disclosures Act, 2000
on account of the employee having
made a protected disclosure defined in that Act.”
[13]
The uncertainty surrounding the scope of what the term “benefits”
in section 186(2)(a) of the Labour Relations
Act entails has
hopefully and finally been resolved by the Labour Appeal Court in
Apollo
Tyres SA (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration
[6]
where Musi AJA held that;
‘
In
my view, the better approach would be to interpret the term benefit
to include a right or entitlement to which the employee is
entitled
(ex contractu or ex lege including rights judicially created) as well
as an advantage or privilege which has been offered
or granted to an
employee in terms of a policy or practice subject to the employer's
discretion. In my judgment "benefit"
in section 186(2)(a)
of the Act means existing advantages or privileges to which an
employee is entitled as a right or granted
in terms of a policy or
practice subject to the employer's discretion. In as far as Hospersa,
GS4 Security and Scheepers postulate
a different approach they are,
with respect, wrong.’
[14]
In the letters received by the employees in respect of the repayment
of the overpaid performance bonus, they were specifically
informed
[7]
that the amounts were to be recovered in terms of ‘section 34
(5) (b)’ of the Basic Conditions of Employment Act as
payments
were made in error. The employees were afforded four different
options as to how they sought to make the repayments. I
did not
understand the Applicant’s case to be that they were indeed
entitled whether
ex
contractu
or
ex
lege
to more than the bonuses they had legitimately received. Their only
concern was that the First Respondent intended to deduct these
overpayments from them, moreso since some of the payments were made
in 2011. They viewed the First Respondent’s conduct as
arbitrary.
[15]
It is accepted that any deductions to be made to employees’
remuneration must be subject to the procedural constraints
in section
34 of the BCEA, which provides:-
“
(1)
An employer may not make any deductions from an employee’s
remuneration unless –
a) subject to
sub-section (2), the employee in writing agrees to the deduction in
respect of a debt specified in the agreement;
or
b) the deduction
is required or permitted in terms of a law, collective agreement,
court order or arbitration award.
…
..
5)
An employer may not require or permit and employee to –
(a) repay any
remuneration except for overpayments previously made by an employer
resulting from an error in calculating the employee’s
remuneration; or
(b) acknowledge
receipt of an amount greater than the remuneration actually
received.”
[16]
The fact that the First Respondent seeks to make deductions from
employee’s remuneration to reverse wrongly overpaid
amounts
will not render such deductions an unfair labour practice, more
especially since an overpayment cannot for all intents
and purposes
be an entitlement. There is clearly a distinction between payments to
which an employee is entitled and payments where
there is no such
entitlement. The latter category usually involves payments made
to employees in error, and employers would
ordinarily be entitled to
adjust payments made so as to reflect what the employee is
legitimately entitled to. It further follows
that where there is a
dispute as to whether the deductions should be made or not, and which
deductions can only be made in accordance
with the provisions of
section 34 of the BCEA, any such disputes must be adjudicated by the
Labour Court, in terms of Section 77
of the BCEA which provides
that:-
‘
Jurisdiction
of the Labour Court
(1)
Subject to the Constitution and the jurisdiction of the Labour
Appeal Court, and except where this Act provides otherwise,
the
Labour Court has exclusive jurisdiction in respect of all matters in
terms of this Act, except in respect of an offence specified
in
sections 43, 44, 46, 48, 90 and 92’
[17]
In the light of the above, the decision of the Commissioner to
decline jurisdiction in this case was correct both on the facts
and
the law. There is therefore no justifiable basis to interfere with
the ruling and the application should thus be dismissed.
Order:
i.
The application to review and set aside the
ruling issued by the Third Respondent on 7 August 2012 under case
number WECT 10752-13
is dismissed.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the Applicants: H Perry, Solidarity Official
For
the First Respondent: No appearance
[1]
Sanlam
Life Insurance Ltd v CCMA
[2009] 30 ILJ 2903 (LAC)
[2]
Case no: JA 3/2014 at para 29
[3]
(2010) 31 ILJ 296 (CC) at paras 74 – 75.
[4]
(2008)
29 ILJ 2218 (LAC) at para 40. See also
Benicon
Earthworks and Mining Services (EDMS) BPK v Jacobs NO and Other
s
(1994) 15 ILJ 801 (LAC) at para 804 C to D.
[5]
See
National Union of Metal Workers of SA and Others v Bader Bop (Pty)
Ltd and Another
[2002] ZACC 30
;
2003
(3) SA 513
(CC) at para [13].
[6]
(2013)
34 ILJ 1120 (LAC) at para 50
[7]
See
Annexure “C1” to the founding affidavit