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[2015] ZALCJHB 169
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Motsomotso v Mogale City Local Municipality (JS 1355/09) [2015] ZALCJHB 169 (26 May 2015)
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JS
1355/09
DATE: 26 MAY 2015
Not Reportable
CYNTHIA THERESIA
MOTSOMOTSO
..............................................................................
Applicant
And
MOGALE CITY LOCAL
MUNICIPALITY
......................................................................
Respondent
Delivered: 26 May
2015
Decided in
chambers
LEAVE TO APPEAL
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
This is an unopposed application for leave
to appeal against the whole of judgement handed down on 18 December
2014 in terms of
which the Court issued the following order:
i.
The Court lacks the requisite jurisdiction
to determine the applicant’s alleged unfair discrimination
claim.
ii.
There is no order as to costs.
Background facts:
[2]
The facts of the dispute are set out in
detail in the main judgment and accordingly will not be repeated
herein save to mention
that the applicant alleged that she had been
discriminated against as a result of her male colleagues’
remuneration notches
being increased while hers remained the same.
[3]
An unfair labour practice dispute was
referred to the SALGBC and an award issued in her favour. The award
was however reviewed and
set aside by this Court on account of lack
of jurisdiction on the part of the arbitrator to determine a
discrimination dispute
as presented and argued at arbitration
proceedings. Thereafter, the applicant filed a statement of claim in
respect of the discrimination
dispute, on the basis of the
certificate issued by the SALGBC.
[4]
Significantly, the discrimination dispute,
prior to being referred to this Court, was not referred to the
Commission for Conciliation,
Mediation and Arbitration for
conciliation, and accordingly this Court’s jurisdiction to
adjudicate the matter was in issue.
[5]
It was alleged by the applicant that
although the dispute referred to the SALGBC was captured as an unfair
labour practice, that
the substance of the dispute was in fact that
of discrimination. Accordingly, the applicant submits that the
Certificate of Outcome
issued after conciliation reflecting that the
nature of the dispute was an unfair labour practice, was in fact
substantively in
respect of unfair discrimination. Based on this
stance the applicant was of the view that there was no need to lodge
a separate
referral of the discrimination dispute to the SALGBC. The
reasoning behind this view was that the previous Certificate of
Outcome
as issued by SALGBC was sufficient and that referring a
discrimination dispute after the matter came before this Court for
the
review application would have served no purpose.
[6]
The
applicant’s argument that this Court had jurisdiction to decide
her unfair discrimination dispute was ultimately therefore
rejected
based on the finding that an essential element giving rise to this
Court’s jurisdiction was lacking in the light
of the provisions
of section 10 of the Employment Equity Act
[1]
(EEA) which provide for the referral of matters such as this to be
referred specifically to the CCMA and not to a bargaining council.
Grounds upon
which leave to appeal is sought:
[7]
In the present application for leave to
appeal the applicant challenges the Court’s finding and the
reasoning behind it on
the same basis as argued during the hearing of
the matter. Essentially, it was submitted
inter
alia
that;
7.1 Since the Court
in the review application had not reviewed and set aside the
Bargaining Council’s conciliation proceedings
and the
certificate of outcome, it was not the Court’s function to
enquire into the validity of the bargaining Council’s
decision
to conciliate the dispute since that process had taken place and a
certificate of outcome was issued.
7.2 The Court was
over technical in having found that it lacked the requisite
jurisdiction to determine the applicant’s alleged
unfair
discrimination claim on the ground that the conciliation process was
conducted by the bargaining council.
7.3 The Court’s
finding causes grave practical difficulties because it made reference
to the court being dependent on something
over which the parties to
the dispute had no control. This accordingly caused the applicant to
suffer unintended delays and grave
injustice caused by the bargaining
council’s acceptance of the referral as valid.
Legal framework:
[8]
It
is trite that in determining applications for leave to appeal, the
test is whether there are reasonable prospects that another
court
(the Labour Appeal Court) may come to a different conclusion reached
by the court a
quo
[2]
.
This test was restated in
Minister
of Safety and Security and Another v Madyibi
[3]
where the court held that:
“
In
giving consideration to the issues at hand I am enjoined by judicial
authority to take due cognisance of the test which is of
application
in matters of this nature. Judicial authority requires of a Judge
considering an application for leave to appeal to
reflect
dispassionately upon the decision sought to be appealed against and
decide whether or not there is a reasonable prospect
that the Appeal
Court may come to a different conclusion. This necessarily requires
of me to disabuse my mind of the fact that
I was of the view when I
delivered my judgment that it was supportable both on the facts of
the case and the law applicable thereto.”
[9]
The
principles relating to the jurisdiction of the Labour Court to
adjudicate matters that are mandatorily required to be conciliated
emanate from the provisions of section 157 (4) (a) of the LRA
[4]
.
It was contended on behalf of the applicant that those requisite
jurisdictional facts existed in this case. The Constitutional
Court
in
NUMSA
v Intervalve (Pty) Ltd and others
[5]
had occasion to consider these jurisdictional requirements, and it
would be useful to quote at length the principles as set out
by
Cameron J. In this regard, the learned Judge held as follows;
“
On
the point crucial to this case, the majority firmly rejected the
proposition that the Labour Court has jurisdiction to adjudicate
a
dispute not referred to conciliation at all. It said that it
was—
“
as
clear as daylight that the wording of section 191(5) imposes the
referral of a dismissal dispute to conciliation before such
dispute
can either be arbitrated or referred to the Labour Court for
adjudication”.
The
reasoning of the
Driveline
majority is, in my view,
convincing. Section 191(5) stipulates one of two
preconditions before the dispute can be referred
to the Labour Court
for adjudication: there must be a certificate of non-resolution, or
30 days must have passed. If neither
condition is fulfilled,
the statute provides no avenue through which the employee may bring
the dispute to the Labour Court for
adjudication. As Zondo J
shows in his judgment, with which I concur, this requirement has been
deeply rooted in South African
labour law history for nearly a
century. We should not tamper with it now.
And
the
Driveline
minority’s approach to section 157(4)
seems wrong to me. Section 157(4)(a) confers upon the Labour
Court the power
to refuse to determine a dispute if it is not
satisfied that an attempt has been made to resolve the dispute
through conciliation.
Section 157(4)(b) then provides that a
certificate issued by a commissioner that a dispute remains
unresolved is sufficient proof
that an attempt has been made to
resolve that dispute through conciliation. This means that, in
a case where a certificate
of non-resolution has been issued at the
end of the conciliation process, the Labour Court may not, on the
strength of section
157(4)(a), decline to determine the dispute.
This is because section 157(4)(b) says that the certificate is
sufficient proof
that an attempt was made.
Where
no certificate has been issued because there was, for example, no
conciliation meeting, but a period of 30 days from the date
when the
council received the referral has elapsed, the statute conspicuously
does not provide that the expiry of the 30-day period
is sufficient
proof that an attempt was made to conciliate the dispute.
It
is, in my view, in that situation that the Labour Court may, in terms
of section 157(4)(a), refuse to determine the dispute.
This
provision cannot assist in a case where the dispute was not even
referred to conciliation. Section 157(4)(a) underlines
the
importance the LRA places upon the need for attempts to be made to
try and resolve a dispute through conciliation before resorting
to
other methods of resolution.
(Emphasis)
What
is clear is that subsection (4)(a), despite its appearance in the
provision entitled “Jurisdiction of the Labour Court”,
operates to empower the Court to refuse to determine a dispute, over
which it does have jurisdiction, so as to enable the parties
to
attempt conciliation. Contrary to the conclusion of the
Driveline
minority, it does not operate to extend the Court’s
jurisdiction to disputes that have not been conciliated at all.”
Evaluation:
[10]
The
principles enunciated in
Intervalve
are
applicable to the present matter as it confirms the necessity of
conciliation as a prerequisite to this Court assuming jurisdiction
in
a dispute. The conciliation requirement of section 191 of the LRA is
similar to the requirements in the EEA, both being peremptory
in
nature. The difference being that the EEA specifically requires that
conciliation be conducted under the auspices of the CCMA
[6]
and not a bargaining council as the latter does not have the
jurisdiction to deal with discrimination disputes.
[11]
Further applying the principles as set out
above in this case, it was not in dispute that the applicant had
initially referred an
unfair labour practice dispute to the
Bargaining Council for conciliation. Contrary to the submissions made
on behalf of the applicant,
there was no basis for the respondent to
challenge the jurisdiction of the bargaining council to conciliate
the unfair labour practice
dispute as it was properly referred.
Secondly, when the arbitrator assumed jurisdiction over the dispute,
but then ended up arbitrating
a discrimination dispute as opposed to
what was initially referred, the respondent was within its rights to
review the arbitration
award, which it had successfully done It was
therefore irrelevant whether the respondent had raised an objection
or not, as the
Arbitrator clearly had no jurisdiction to arbitrate a
discrimination dispute.
[12]
As already indicated in the main judgment,
once the award was successfully reviewed, and the matter was not
taken any further, this
disposed of the dispute between the parties.
To reiterate, a party cannot utilise a certificate of outcome issued
in respect of
a different dispute for the purposes of approaching the
Court with a new dispute, moreso once the initial dispute had been
disposed
of.
[13]
There was therefore, an obligation on the
applicant if she wished to pursue a discrimination claim, to approach
the CCMA as required
by the provisions of section 10 (2) of the EEA.
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
implies that the bargaining council as in this case, did not
have jurisdiction to conciliate disputes concerning discrimination
disputes, even if the applicant still holds the view that such a
dispute was in any event conciliated. The bargaining councils
are
creatures of the statute and therefore cannot assume powers which
they do not have in terms of the applicable legislation.
[14]
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 her pleadings was never referred to, nor
conciliated by the CCMA
and thus depriving the Court of the
jurisdiction to adjudicate the dispute. In the absence of such a
referral, the Court was bound
to decline to assume jurisdiction as
contemplated in section 157 (4) (a) of the LRA.
[15]
Having had regard to the grounds for leave
to appeal, the submissions made in that regard, and further having
had regard to the
principles governing the jurisdiction of this Court
as elucidated by Cameron J in
Intervalve
,
it is my view that the prospects of the Labour Appeal Court arriving
at a conclusion that the court
a quo
should have adjudicated the dispute as referred are clearly remote.
In these circumstances, the following order is made.
Order:
(i)
The application for leave to appeal is
dismissed.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
[1]
Act
55 of 1998
[2]
Karbochem
Sasolburg (A Division of Sentrachem Ltd) v Kriel and Others
(1999) 20 ILJ 2889 (LC) at 2890B. See also
National
Union of Metal Workers of South Africa v Jumbo Products CC
[1996] ZASCA 87
;
1996 (4) SA 735
(A) at 742B where Appellate Division (per Corbett
CJ) expressed the test in the following terms;
“
In
such a case the enquiry is whether there are reasonable prospects of
success, i.e. whether there is a reasonable prospect that
the court
of appeal may take a different view and hold the trial Judge to have
been wrong (see S v Ackerman en 'n ander
1973 (1) SA 765
(A); Botes
and Another v Nedbank Ltd
1983 (3) SA 27
(A), at 28 D)”.
[3]
(1034/2004)
[2008] ZAECHC 180
(30 October 2008) at para 20
[4]
This provides that;
“
The
Labour Court may refuse to determine any dispute, other than an
appeal or review before the Court, if the Court is not satisfied
that an attempt has been made to resolve the dispute through
conciliation”
[5]
(2015)
36 ILJ 363 (CC) at paragraphs [31] to [35]
[6]
Section
10 of the EEA provides that;
“
Disputes
concerning this Chapter.
(1)
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.
(2)
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.
(3)
The CCMA may at any time permit a party that show good cause to
refer a dispute after the relevant time limit set out in subsection
(2).
(4).
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
(5).
The CCMA must attempt to resolve the dispute through conciliation.
(6).
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.
(7).
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.”