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[2015] ZALCJHB 195
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SATAWU obo Mokubjane v Mbatsana and Others (JR1559/13) [2015] ZALCJHB 195 (3 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 1559/13
In the matter between:
sATAWU
Obo w.
mokubjane
Applicant
and
commissioner
p.
mbatsana
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION
Second Respondent
AND
ARBITRATION
ROAD
ACCIDENT
FUND
Third Respondent
SAMUEL
KGOSI
Fourth Respondent
Heard
:
01
July 2015
Delivered
:
03
July 2015
Summary:
Review jurisdictional ruling – failure to properly assess the
jurisdictional point in terms of
rule 14
JUDGMENT
MATLEJOANE, AJ
Introduction
[1]
This is an application to review and set aside the jurisdictional
ruling made by first respondent, to whom I shall refer as
(“the
commissioner”). In terms of the ruling the commissioner found
that the second respondent did not have jurisdiction
to conciliate or
arbitrate the dispute. The applicant has also applied for condonation
for the late filing of the review application.
Both applications are
unopposed. The delay of 48 days, is in my view not extensive and I
find the explanation set out in applicants’
founding affidavit
to be reasonable and acceptable.
Background Facts
[2]
The applicant who is employed by third respondent as senior officer
in Task Grade 12 entry, declared a dispute of unfair labour
practice.
It would appear that applicant was kept at a lower grade of Task
Grade 12 entry while the fourth respondent who is on
the same job
description, duties and responsibilities is on a higher grade of Task
Grade 12 mid-scale on a higher remuneration
scale.
[3]
The applicant then lodged a formal grievance about the matter. He was
informed during 28 February 2013 that his matter “
was
extensively deliberated upon at Executive level and the feedback
received was pretty much the same as explained above
”.
The feedback referred to it would seem was that salary matters should
be raised with the line manager to allow Line Management
prerogative
in terms of the Remuneration Policy to take its course. It was for
that reason that he referred a dispute to the third
respondent
regarding the unfair labour practice relating to promotion.
Principles
[4]
In
Numsa
v Driveline Technologies (Pty) Ltd
[1]
the Labour Appeal Court ruled that the parties were not bound by the
manner in which the conciliating commissioner characterised
the
dispute. Such characterisation, the majority found, has “
no
bearing on the future conduct of the proceedings. The forum for
subsequent proceedings is determined by what the employee alleges
the
dispute to be
”
[2]
.
[5]
The approach of the Labour Appeal Court in
Numsa
v Driveline
(above) was followed in
Goldfields
Mining SA (Pty) Ltd v CCMA
[3]
where Van Niekerk J concluded that conciliating commissioners are not
required to investigate the nature of the dispute or to direct
which
forum must subsequently deal with the matter.
[6]
In the present instant, the commissioner has characterised the
dispute as an unfair labour practice when completing the certificate
of outcome but in his ruling he characterises the dispute as
discrimination which in effect oust the jurisdiction of the second
respondent. There is no correlation between the certificate of
outcome and the subsequent ruling.
[7]
In
Goldfields
, it was found that jurisdictional issues such as
the nature of the dispute, should be decided at the arbitration or
adjudication
phase, and that conciliating commissioners should
determine only such issues as whether the dispute was referred on
time, whether
it should have been referred to a bargaining council or
the CCMA and, perhaps whether the dispute concerned a matter of
mutual
interest.
The Grounds for Review
[8]
The applicant contended that the commissioner’s conclusion that
the parties to the dispute were of the same mind about
the dispute
route the matter had to follow cannot be said to be one that a
reasonable decision-maker could reach.
[9]
It was further argued on behalf of applicant that based on the
material before him, it cannot be said that his conclusion that
the
dispute is about discrimination was one that a reasonable
decision-maker could reach.
Evaluation
[10]
The case of the applicant before the arbitrator was that the third
respondent had perpetrated an unfair labour practice by
keeping him
at a lower grade of Task Grade 12 entry while the fourth respondent
who is on the same post is on a higher grade of
Task Grade 12
mid-scale which is a higher remuneration scale.
[11]
In light of the above, I am in agreement with the applicant that the
CCMA does have jurisdiction to entertain the dispute brought
before
it and accordingly in refusing to entertain the dispute on the ground
of lack of jurisdiction the commissioner committed
a material error
of law which rendered his decision incorrect. The view is in line
with the approach adopted in
Bombardier
Transportation (Pty) Ltd v Mtiya NO
[4]
Van Niekerk J added that a
conciliating commissioner faced with a jurisdictional challenge may
elect to determine the jurisdictional
question or to defer it to the
arbitration phase. Generally, it was held, challenges to the effect
that the dismissed person was
not an “
employee
”
or that she was never dismissed are not truly jurisdictional issues
as contemplated by rule 14 and should be deferred to
arbitration. The
commissioner ought to be guided by the nature of challenge, the
extent to which matters are intimately bound up
with the substantive
merits of the dispute, the determination of difficult questions of
mixed law and fact, and the need for evidence
to resolve them. The
Court found, rule 14 does no more than require conciliating
commissioner to give proper consideration to any
jurisdictional point
raised, including an assessment of whether it is a true
jurisdictional point and if so, whether it is reasonably
capable of
being disposed of prior to conciliation, or property left to the
arbitration stage
[5]
.
[12]
In light of the above, I find the applicant have made out a case for
the review of the ruling made by the commissioner.
Order
[13] In the premises, the
following order is made:
13.1
The
late filing of the review application is condoned.
13.2
The
ruling made by the commissioner under case number GATW 4045-13 is
reviewed and set aside.
13.3
The
ruling is substituted with an order to the effect that second
respondent has jurisdiction to entertain the dispute referred
to it
by applicant.
13.4
The
matter is remitted to the second respondent for consideration by a
commissioner other than the first respondent.
_____________________
Matlejoane AJ
Acting
Judge of the Labour Court
Appearances:
For the Applicant: M.M
Baloyi of M.M Baloyi Attorneys
No
appearance fort the Respondent
[1]
[2000] 1 BLLR 20
(LAC)
[2]
At par. 9
[3]
[2009] 12 BLLR
1214 (LC)
[4]
[2110] 8 BLLR 840 (LC)
[5]
At par. 16