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[2015] ZALCJHB 365
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Compass Group SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR685/11) [2015] ZALCJHB 365; 2015 (6) SA 256 (LC) (27 August 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR685/11
In
the matter between:
COMPASS
GROUP SA (PTY) LTD
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
THEMBEKILE SIBANYONI
Second Respondent
PATRICK
MPHUTHI & 22 OTHERS
Third
Respondent
SAAWU
Fourth Respondent
Heard
:
27 August 2015
Delivered
:
27 August 2015
Judgment
edited and order corrected: 30 September 2015
EX-TEMPORE
JUDGMENT
VAN
NIEKERK J
[1]
This
is an application to review and set aside an arbitration award issued
by the second respondent, to whom I shall refer as ‘the
commissioner’. In his award the commissioner found that the
individual employees represented by the fourth respondent had
been
unfairly dismissed by the applicant and ordered their reinstatement.
[2]
The basis for the present application is primarily that the first
respondent, the
CCMA, had no jurisdiction to entertain the dispute
that gave rise to the proceedings under review. In particular, the
applicant
submitted that the reason for the employees’
dismissal was their participation in an unprotected strike. A
dismissal effected
for this reason of course falls within the ambit
of this court’s jurisdiction, since section 191(5)(b)(iii) of
the Act requires
any unfair dismissal dispute, where the reason for
dismissal is the employees’ participation in a strike that does
not comply
with the provisions of chapter IV of the Act, to be
referred to this court for adjudication.
[3]
To the extent that the third respondent submits that the dispute
between the parties
was one that concerned an unfair dismissal and
that the CCMA accordingly had jurisdiction to entertain the claim,
this begs the
question of the reason for dismissal and its
jurisdictional consequences. The Act establishes the jurisdiction of
the CCMA and
this court respectively by reference to the employer’s
reason for dismissal. Both institutions are creatures of statute and
may only act within the jurisdiction that is conferred on them by the
Labour Relations Act and any other labour legislation.
[4]
In the present instance, the commissioner himself recorded that the
employees were
dismissed on 7 July 2010 ‘for misconduct in that
they participated in an unlawful strike’. This categorisation
is consistent
with the referral documents. The referral form
submitted to the CCMA on 14 July 2010 specifically records in the
summary of facts
the allegation that the employer dismissed the
employees unfairly, having accused them of participating in a strike.
The certificate
of outcome issued by the CCMA on 3 September 2010,
for reasons that are not explained, indicates that the dispute may be
referred
to arbitration. It is trite that a certificate of outcome
has no legal effect. It is certainly not definitive of any
jurisdictional
matters.
[5]
The notice of set down in respect of the proceedings under review was
issued on 15
September 2010 and it records that the primary issue in
dispute is one that relates to a dismissal concerning participation
in
a strike. All of these indicators are consistent with the
applicant’s version of events - i.e. that the employees who
were
employed by the applicant to provide catering services at the OR
Tambo International Airport embarked on an unprotected strike on
or
about 30 June 2010.
[6]
At the arbitration hearing the applicant raised the point in
limine
to the effect that the CCMA did not have jurisdiction to
entertain the dispute as it concerned the dismissal of employees for
participation
in unprotected strike action. The commissioner
dismissed this point without giving reasons. Jurisdiction or the lack
of it is a
factual enquiry. Either the CCMA has jurisdiction or it
does not. It is a creature of statute and cannot decide its own
jurisdiction.
The CCMA cannot grant itself jurisdiction which it does
not have. In the present instance the dispute between the parties, in
the
terms in which it was referred, pointed to the existence of facts
indicative of a lack of jurisdiction by the CCMA.
[7]
To the extent that the third respondent disputes the applicant’s
right to raise
a jurisdictional point at this stage, jurisdiction is
a matter that can be raised at any stage in proceedings. Indeed it is
the
matter that the court itself is obliged to raise if the facts
indicate a lack of jurisdiction. In
Pankana CC t/a R and W
Transport Components v Dreyer NO and Others
(2012) 33
ILJ
692 (LC), this court held that a party is not precluded from raising
a jurisdictional point at the review stage. This must be so,
since
the issue of jurisdiction is closely related to that of the rule of
law, and especially that element of it that demands that
statutory
institutions exercise only those powers that are conferred on them by
enabling legislation.
[8]
This is not one of those cases where a dispute is referred to the
CCMA in circumstances
where, on the face of it, the terms of the
referral as such that the CCMA has jurisdiction, but where a
commissioner decides subsequently
that the true dispute between the
parties is one that is not reflected in the referral and is one that
falls outside of the CCMA
scope of jurisdiction. For example, the
dispute concerning a dismissal for incapacity and referred to the
CCMA on that basis might
involve an automatically unfair reason for
dismissal where the employee is a pregnant woman and where the facts
indicate that the
real rather than the apparent reason for dismissal
was her pregnancy.
[9]
The present application concerns a case that never fell within the
ambit of the CCMA’s
jurisdiction. The reason given by the
employer for dismissal was participation in an unprotected strike.
The employees did not
dispute that that was the reason for their
dismissal. They may have disputed that they were not on strike at
all, but that is not
a consideration that is determinative of
jurisdiction. Unsatisfactory that might be, the statutory foundation
on which the dispute
resolution system is constructed accords
significance to the reason for dismissal. Indeed, this is the basis
of the bifurcation
between arbitration and adjudication procedures
established by the Act.
[10]
Neither party in the present instance, as I have indicated, disputed
the reason for dismissal.
And that reason, being one that dictated
that the dispute be referred to this court for adjudication,
necessarily meant that the
CCMA had no jurisdiction to conduct the
proceedings under review. For that reason alone, and aside from any
of the reviewable irregularities
that the applicant submits were
committed by the commissioner during the course of the arbitration
proceedings, the commissioner’s
award stands to be reviewed and
set aside.
[11]
The applicant charitably did not pursue the issue of costs. For the
above reasons, I make the
following order:
1.
The arbitration award issued by the second respondent under case
number GAJB 22109-10 dated 18 March 2011 is reviewed and set
aside.
2.
The award is substituted by the following:
‘
The
referral is dismissed’.
3.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT