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[2015] ZALCJHB 171
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Motheo District Municipality v SAMWU obo Members and Others (JR3454/10) [2015] ZALCJHB 171 (2 June 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Judgement
C
ase
No: JR 3454/10
DATE:
02 JUNE 2015
Not
reportable
Of
interest to other judges
In
the matter between:
MOTHEO
DISTRICT
MUNICIPALITY
...............................................................................
Applicant
And
SAMWU
obo
Members
................................................................................................
First
Respondent
Abraham
Nthako
N.O
..............................................................................................
Second
Respondent
Salgbc
...........................................................................................................................
Third
Respondent
Heard:
21 May 2015
Delivered:
2 June 2015
Summary:
Review – jurisdiction – jurisdiction decided on basis of
dispute as referred by union.
Judgement
STEENKAMP
J
Introduction
[1]
The applicant, Motheo District
Municipality, seeks to have a jurisdictional ruling by the second
respondent (the arbitrator) issued
under the auspices of the third
respondent (the South African Local Government Bargaining Council)
reviewed and set aside.
Background
facts
[2]
The first respondent, SAMWU (acting on
behalf of its members), referred a dispute to the Bargaining Council.
It categorised the
nature of the dispute as being about an unfair
labour practice. Summarising the facts of the dispute in the referral
form, it said:
“
The
dispute relates to the conduct of the employer in not extending
benefits to some members.”
[3]
That dispute was not resolved. The Council
issued a certificate to that effect, indicating that it concerned an
unfair labour practice
in terms of s 186(2)(a) of the LRA and that it
can be referred to arbitration. The union did so.
[4]
The arbitration was heard by commissioner
Charlton Rex. The Municipality did not attend, nor did it file any
written submissions,
despite the fact that it had raised a
jurisdictional point
in limine
and that the parties agreed that they would submit written
submissions to the arbitrator before the hearing. Commissioner Rex
issued a default award. He characterised the dispute as one
pertaining to “unfair labour practices relating to promotion”.
He found that the Municipality had committed a number of unfair
labour practices and ordered it to “promote” various
employees to different salary levels.
[5]
The Municipality successfully had that
award rescinded. The arbitration was set down afresh before the
second respondent, commissioner
Nthako. Both parties were represented
this time. The Municipality again raised a jurisdictional point
in
limine
. No evidence was led. The
arbitrator recorded the parties’ arguments as follows:
“
The
[Municipality’s] representative submitted that the employees
referred the matter for unfair labour practice and indicated
that it
relates to benefits. However, it is not one matter and there are
seven applicants. The facts of the applicants differ materially
and
the applicants are applying short cut approach to the matter. He
submitted that the employees should refer the matters individually.
The [Municipality] submitted that the Council does not have
jurisdiction to deal with this matter.”
“
The
[union’s] representative submitted that this matter was
referred to the Council in 2009 for unfair labour practice. The
matter was then scheduled for the 2
nd
of December 2009. The Employer raised a point in limine on the same
points that they are raising before the Council. The submissions
made
were to be ruled upon by Commissioner Rex but there was [
sic
]
no written submissions made.
Initially,
the matter was set down and a default award was issued due to non
attendance by the Employer. The employees submitted
that the point in
limine should be dismissed.”
The
ruling
[6]
The arbitrator held that the Council did
have jurisdiction to hear the dispute based on the following two
factors:
“
Having
regard to the submissions made by the parties it is my view that this
application should not have been brought at all. A
certificate of non
resolution was issued and that certificate indicated that the matter
should be arbitrated. That certificate
gives the Council jurisdiction
to arbitrate the matter and if the [Municipality] would like to
challenge that certificate, it should
be done through the Labour
Court.
The
Union has the right to refer the matter to the Council on behalf of
its members for any dispute that the Council has been accredited
to
adjudicate upon. The question of merits is a matter of evidence.”`
[7]
The Municipality argues that the award
should be set aside because the arbitrator committed misconduct and
exceeded is powers/
Evaluation
/ Analysis
[8]
In deciding whether the award is
reviewable, the Court should first consider what the appropriate test
is.
The
appropriate test
[9]
Although
the Municipality’s review grounds were based on the
reasonableness test set out in
Sidumo
[1]
,
Mr
Grobler
,
for the union, correctly argued that the appropriate test in the
review of a jurisdictional ruling is simply whether the arbitrator
was right or wrong.
[2]
The
effect of the certificate of non-resolution
[10]
In
appearing to hold that the Council had jurisdiction because another
commissioner had issued a certificate stating that the dispute
remained unresolved, the arbitrator was clearly wrong, as Mr
Grobler
readily
conceded, referring to
Mickelet
v Tray International Services & Administration (Pty) Ltd.
[3]
[11]
But does that mean, in and of itself, that
the award should be reviewed and set aside? I think not, contrary to
what Mr
Dehal
submitted. The Court should still consider whether the arbitrator’s
conclusion was correct, i.e. whether the Council has
jurisdiction or
not. And in order to do so, the Court must also consider the second
leg of the ruling.
Jurisdiction
based on the referral
[12]
Mr
Dehal
argued that the real dispute before the arbitrator did not relate to
an unfair labour practice, but to a claim for higher salary,
which is
a dispute of interest and thus not arbitrable. That is not the
argument that the Municipality put up before the arbitrator;
it
simply argued that the individual employees should have referred
discrete disputes. I shall nevertheless consider whether the
arbitrator correctly assumed jurisdiction when he held that the union
had the right to refer a dispute to the Council “for
any
dispute that the Council has been accredited to adjudicate upon”,
and that the question of merits is a matter for evidence.
[13]
Without
referring to it, the arbitrator in fact came to the correct
conclusion, in my view, when one has regard to the jurisprudence
of
the higher courts. As Nugent JA stated in
Makhanya
:
[4]
“
[T]he
power of a court to answer a question (the question whether a claim
is good or bad) cannot be dependent upon the answer to
the question.
To express it another way, its power to consider a claim cannot be
dependent upon whether the claim is a good claim
or a bad claim. The
Chief Justice, writing for the minority in
Chirwa
[5]
, expressed it as follows:
‘
It
seems to me axiomatic that the substantive merits of a claim cannot
determine whether a court has jurisdiction to hear it.’”
[14]
Although
the referral to arbitration does not have the status of pleadings, I
am of the view that the same principle holds true
where an employee
or trade union chooses to frame a dispute in a particular way and
based on a particular cause of action. That
must be in line with the
dictum
of the Constitutional Court in
Gcaba
[6]
that:
“
Jurisdiction
is determined on the basis of the pleadings, as Langa CJ held in
Chirwa
,
and not the substantive merits of the case”.
[15]
And
in
South
African Maritime Safety Authority v McKenzie
[7]
, a unanimous judgment of the
Supreme Court of Appeal, Wallis AJA commented as follows :
“
Once
more, as in other cases that have come before this court, the plea,
so far as it purports to raise a jurisdictional challenge,
is
misdirected. As the Constitutional Court has reiterated in
Gcaba
v Minister of Safety & Security & Others
,
the question in such a case is whether the court has jurisdiction
over the pleaded claim and not whether it has jurisdiction over
some
other claim that has not been pleaded, but could possibly arise from
the same facts. In this case the particulars of
claim could not
have made it clearer that Mr McKenzie’s claim is for damages
for breach of contract.”
[16]
In the case that served before the
arbitrator, the union referred an unfair labour practice dispute to
the Bargaining Council. It
may be a good or a bad case. That can only
be ascertained once it has led the evidence. But there is no doubt
that the Council
has jurisdiction to hear that claim in terms of s
186(2)(b) of the LRA.
[17]
The
case cited by Mr
Dehal,
North West Tourism Council v CCMA
[8]
,
not only precedes the higher authority to which I have referred, but
is also distinguishable. In that case it was held, quite
correctly,
that the CCMA had no jurisdiction to arbitrate a case where the
employee based his cause of action on discrimination.
[18]
Mr
Dehal
also
referred to the judgment of this court in
South
African Post Office v CCMA
[9]
to argue that the union’s claim did not amount to an unfair
labour practice. But in the subsequent case of
SARS
v Ntshintshi
[10]
I noted:
“
This
Court held in
South
African Post Office
that an acting allowance, on the facts of that case, did not
constitute a ‘benefit’ as contemplated by section
186(2)(a).
In doing so, and taking into account the principle of
stare
decisis
,
I considered myself bound by the Labour Appeal Court authorities in
Hospersa
v Northern Cape Provincial Administration
[11]
, Gauteng Provinsiale Administrasie v Scheepers
[12]
and
G4S
Security v NASGAWU
[13]
.
Subsequently,
on 21 February 2013 -- after this application had been brought -- the
Labour Appeal Court handed down judgment in
Apollo
Tyres South Africa (Pty) Ltd v CCMA & others
.
[14]
In
Apollo
Tyres
,
the LAC held that a ‘benefit’ for the purposes of s
186(2)(a) is not limited to an entitlement that arises
ex
contractu
or
ex
lege
.
It departed from its earlier three judgments referred to above and
followed by this Court in
SA
Post Office
.
Musi AJA held:
‘
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 judgement ‘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. Insofar as
Hospersa,
G4S
and
Scheepers
postulate a different approach they are, with respect, wrong.’
In
the light of that unequivocal judgment, this Court must now be bound
by the latest LAC judgment, even though it is contrary to
that
court’s earlier jurisprudence.”
[19]
Given the latest jurisprudence and the wide
interpretation given to the term ‘benefits’ in order to
bring it into the
definition of an unfair labour practice, also, it
seems to me that the arbitrator was correct in holding that the
Council does
have jurisdiction over the unfair labour practice claim
as alleged by the union.
Conclusion
[20]
I conclude that the arbitrator correctly
found that the Bargaining Council has jurisdiction to hear the unfair
labour practice dispute
referred by the union, although his first
premise – based on the certificate of non-resolution –
was wrong.
The
appropriate relief
[21]
Although I have found that the conclusion
is correct, I agree with Mr
Dehal
that the Court should give further direction as to how the matter
should proceed.
[22]
The Council has to hear evidence on the
merits. It may be that, once the evidence is in, it finds that it
does not have jurisdiction
over the dispute that the union referred;
but that is unlikely. It is more probable that the arbitrator will
make a finding on
the merits, one way or the other. But I also agree
with Mr
Dehal
that
it would be preferable for an arbitrator other than the second
respondent to hear the dispute on the merits.
Costs
[23]
The effect of the finding is that the
dispute is ongoing and that the merits are still to be determined.
There is also an ongoing
relationship between the parties. I do not
consider a costs order to be appropriate in law and fairness.
Order
[24]
I therefore make the following order:
24.1
The application for review is dismissed.
24.2
The dispute is remitted to the SALGBC (the
third respondent) for arbitration before a commissioner other than
the second respondent.
24.3
There is no order as to costs.
Steenkamp
J
APPEARANCES
APPLICANT: Adv
Dehal
Instructed by
Mabalane Seobe Inc.
FIRST
RESPONDENT: Adv S Grobler
Instructed by
Kramer, Weihmann & Joubert.
[1]
Sidumo
v Rustenburg Platinum Mines Ltd
(2007)
28
ILJ
2405 (CC).
[2]
He referred to
SARPA
v S A Rugby (Pty) Ltd
(2008)
29
ILJ
2218 (LAC) paras 39-41 and
Asara
Wine Estate & Hotel (Pty) Ltd v Van Rooyen
(2012)
33
ILJ
363 (LC) paras 22-23.
[3]
(2012) 33
ILJ
661
(LC) para 19. See also
Bombardier
Transportation (Pty) Ltd v Mtiya N.O.
(2010)
31
ILJ
2065 (LC) and
BMW
SA (Pty) Ltd v NUMSA
(2012)
33
ILJ
140 (LAC) para [5].
[4]
Makhanya
v University of Zululand
2010
(1) SA 62
(SCA) para 62.
[5]
Chirwa
v Transnet Ltd
[2007] ZACC 23
;
2008
(4) SA 367
(CC) para 155.
[6]
Gcaba
v Minister for Safety & Security
(2010) 1 SA 238
(CC) para 75.
[7]
2010
(3) SA 601 (SCA).
[8]
[1998] ZALC 31
(17 June 1998).
[9]
(2012) 33
ILJ
2970 (LC).
[10]
[2013] 9 BLLR 923
(LC); (2014) 35 ILJ 255 (LC) paras 34-36.
[11]
(2000) 21
ILJ
1066 (LAC).
[12]
[12]
[2000] 7 BLLR 756
(LAC).
[13]
Unreported (case no DA 3/08), 26 November 2009.
[14]
[2013] 5 BLLR 434
(LAC).