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[2015] ZALCJHB 305
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Moqhaka Local Municipality v South African Local Government Bargaining Council and Others (JR567/2013) [2015] ZALCJHB 305 (16 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 567/2013
In
the matter between:
MOQHAKA
LOCAL MUNICIPALITY
Applicant
and
SOUTH
AFRICAN LOCAL GOVERNMENT BARGAINING COUNCIL
MAPUTLE
MOHLALA
NO
SAMUEL
BUTIKI KULA
First
Respondent
Second
Respondent
Third
Respondent
Delivered:
16 September 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The
Applicant approached the Court in terms of section 145 of the Labour
Relations Act
[1]
(the LRA) to
seek an order reviewing, correcting or setting aside the arbitration
award issued by the Second Respondent (Arbitrator)
on 8 February 2013
under case number FSD101208. In his award, the Arbitrator found that
the termination of the Third Respondent’s
(Kula) fixed term
contract of employment by the Applicant was unfair, and had ordered
that Kula be paid the remainder of his fixed
term contract in the
amount of R2 338 587.60. The review application is opposed.
Background:
[2]
Kula was employed by the Applicant with effect from 13 September 2010
in the position of Human Resources Manager in terms of
a fixed term
contract that was to end on 31 December 2012. On 11 October 2011,
Kula had approached the Applicant’s Municipal
Manager, Mqwathi,
and advised him that there was an error in his fixed term contract of
employment on the basis that firstly, the
duration of that contract
was linked to the term of office of the Municipal Council as was the
case with other so-called section
57 managers, and secondly that the
duration of his contract of employment was not consistent with that
of the other managers such
as the SCM Manager, and Manager:
Electricity (Acting Manager: Technical Services) which were for five
years.
[3]
Based on what Kula had informed Mqwathi, the latter had requested
Kula to prepare a memorandum setting out the alleged error
to be
addressed to the then Director: Corporate Services, Nhlapo, so that
it could be corrected. Kula prepared the memorandum addressed
to
Nhlapo, which Mqwathi then signed on 11 October 2011.
[4]
On 11 October 2011, Kula presented Mqwathi with a second contract of
employment containing a changed duration of the contract.
Thus his
employment contract was now from 13 September 2010 to 30 September
2015,
regardless of the date of signing of the contract
.
[5]
On 8 November 2011, IMATU complained about the extension of Kula’s
fixed term contract, pointing out that the extension
was null and
void and resulted in the avoidance of recruitment processes requiring
advertising and selection. IMATU disputed that
there was an error in
the initial contract which was fixed for two years. On 10 November
2011, Mqwathi responded to IMATU, stating
that the HR Manager
position had never been in the organogram. Any suggestions of
irregularity was thus repudiated.
[6]
In February 2012, the Applicant’s employees led by SAMWU
embarked on an unprotected strike and
inter alia
, protested
against the extension of Kula’s fixed term contract and
demanded his dismissal. Similar strike action took place
on 20 August
2013, with the employees demanding that Kula should leave the
Applicant’s employ. The demands were also accompanied
by
threats to remove Kula physically if the Applicant did not accede.
[7]
In the light of the threats, Mqwathi then placed Kula on special
leave from 20 August 2012. Whilst Kula was on special leave,
Mqwathi
sought legal opinion on the second contract of employment. Having
obtained legal advice, Mqwathi then addressed a letter
to Kula on 2
October 2012, advising him that he had misled him into believing that
the initial contract of employment was erroneous;
that his signature
on the contracts was procured through fraudulent misrepresentation,
and further that the only applicable and
valid contract of employment
was the initial one which provided for the duration of his contract
of employment to be commencing
from 13 September 2010 to 31 December
2012. Kula was further advised in the letter of investigations into
possible disciplinary
action against him for fraud and neglect or
dereliction of duties.
[8]
Kula responded by referring an alleged unfair dismissal dispute to
the First Respondent (SALGBC) on 5 October 2012. Attempts
at
conciliation failed and a certificate of outcome was issued on 16
November 2012.
[9]
On 10 December 2012, the Applicant’s Municipal Manager sent
correspondence to Kula, notifying him of the termination of
his
employment contract with effect from 31 December 2012. The dispute
was arbitrated on 4 February 2013, resulting in the award
that is the
subject matter of this review application.
The
arbitration proceedings:
[10]
The dispute to be determined as captured by the Arbitrator was
whether the fixed term contract of employment entered into between
the parties extending the period of engagement to 31 December 2015
was valid or not. It is apparent that the date of 31 December
2015 as
referred to by the Arbitrator is incorrect, as the extension was
until 31 September 2015. However, no oral evidence was
led at the
arbitration proceedings, with the parties electing to merely make
oral submissions, and placing documents relied upon
before the
Arbitrator.
The
oral submissions before the arbitrator:
[11]
The Arbitrator had summarised the submissions made on behalf of the
Applicant by its representative B Van Wyk, who was also
its Labour
Relations Practitioner as follows;
11.1
The second contract was considered as null and void as it did not
make any reference to the first contract
in as far as any
rectification therein was concerned, and was also entered into in
error. To that end, there were two contracts
in operation
simultaneously, with no indication that the first contract was
revoked or not.
11.2 It
took Kula until October 2011 to realise the alleged error in his
initial contract, and he had then advised
Mqwathi on how the error in
the first contract was to be dealt with, and had accordingly misled
Mqwathi into entering into the
second contract without cancelling the
first one.
11.3
The extension of the contract took place at the time when amendments
were being made to section 66 (b) (3)
and (4) of the Municipal
Systems Act which provided that no person may be employed in a
Municipality unless the post was provided
in the staff establishment
of that Municipality.
11.4
The second contract was not enforceable as it violated public policy,
was illegal and violated an Act of
Parliament.
[12]
Kula had represented himself at the arbitration proceedings and his
submissions were as follows;
12.1
His contract of employment was prematurely terminated on 2 October
2012 without a fair reason or procedure.
He was offered employment by
the Applicant which he had hoped would be permanent but after
discussions with Mqwathi, the latter
had advised him against it in
the light of the Council’s view that his contract should be for
a fixed term.
12.2 He
had reluctantly agreed to the initial terms of the contract and
further in view of the forthcoming 2011
municipal elections. The
issue of restricting employment contracts to be in line with local
government or inauguration of the new
Council was only applicable to
the position of Municipal Manager and other section 56 (or 57)
managers and not to every fixed term
contract.
12.3
Mqwathi and Van Wyk had conceded that there was an error with his
initial contract as he had pointed out
to them. He denied having
misled Mqwathi as the matter was discussed with him. He further
denied having procured the signature
of Mqwathi through fraudulent
misrepresentation, and contended that his contract of 11 October 2011
was never linked to the Municipal
Council’s term of office in
that the previous Municipality Council’s term ended on 18 May
2011, whereas his contract
of employment was only to expire on 31
December 2012.
12.4
There was a negative strategy to get rid of him, and this was evident
from meetings held with SATAWU following
the strike action by
employees in August 2012, and IMATU also raising concerns about his
appointment. Politicians got involved
in the matter as they were
concerned with his appointment. SAMWU had also demanded that he
should be excluded from the Labour Forum
and he was subsequently
marginalised.
12.5
His position has been in the staff establishment for two years and
section 66 of the Municipal Systems Amendment
Act took away the
authority of the Municipal Managers to approve staff establishments.
This Act however had no relevance to his
case as his contract
preceded the amendments.
12.6 He
had not signed a new contract of employment, but his only fixed term
contract of employment was amended
with the extension of the period
at of engagement. In accordance with common law his contract could
not be terminated unless there
was material breach or repudiation of
that contract.
12.7 He
implored the Arbitrator to find that there was an unfair dismissal in
that his fixed term contract of
employment was terminated without a
fair reason and fair procedure. He sought the equivalent of 12
months’ salary and the
balance of his fixed term contract of
employment based on his current package plus escalations as per the
current SALGBC salary
and wage collective agreement that commenced
from 1 July 2012 ending 30 June 2015.
The award:
[13]
The Arbitrator first dealt with the issue of whether Kula had
fraudulently misrepresented anything to the Municipal Manager
resulting in the signing of the second contract or insertion of an
amendment into the first contract. The Arbitrator’s conclusion
was that the Municipality failed to show why it did not charge Kula
for misconduct in the light of the serious dishonest offence,
and
there was no merit in the allegation that there was fraudulent
misrepresentation.
[14]
The Arbitrator also made a finding that Mqwathi had knowledge of the
Municipal Systems Act of 2000 even after the amendments,
and it had
been conceded that the period of the initial contract was erroneous.
The Arbitrator rejected any submissions or arguments
that Kula had
fraudulently misrepresented anything to Mqwathi, or that the second
contract was in violation of public policy, or
that it was
unenforceable.
[15]
In regards to whether the second contract of employment or the
amendment was in contravention of the Municipal Systems Act
as
amended, the Arbitrator found that Kula’s post was provided in
the establishment as a result, section 66 (3) of the MSA
was not
contravened when the second contract was entered into.
[16]
The Arbitrator further found that the difference between the two
contracts was the end date and therefore the second contract
was not
a new contract but was an amendment of the original contract, and
accordingly, there was only one contract of employment.
The
Arbitrator relied on common law and concluded that the Applicant had
terminated the fixed term contract of employment on the
extended
period of engagement, and had also failed to show that Kula had
breached his contract or committed a serious offence warranting
the
termination. To the extent that only an allegation was made that Kula
had fraudulently misrepresented to Mqwathi and further
since no
disciplinary action was taken against him, the Arbitrator concluded
that the termination of the fixed term contract was
premature and
unfair.
The
review test:
[17]
The applicable test in review applications is whether the decision
reached by the commissioner is one that a reasonable decision-maker
could not have reached in relation to the material placed before him
or her
[2]
. Furthermore, the
enquiry the reviewing court should embark upon is whether the
arbitrator gave the parties a full opportunity
to state their
respective cases at the hearing, identified the issue that he or she
was required to arbitrate, understood the nature
of the dispute and
dealt with its substantive merits. To this end, the function of the
reviewing court would be limited to a determination
whether the
arbitrator’s decision is one that could not be reached by a
reasonable decision-maker on the available material
[3]
.
The
grounds of review and evaluation:
[18]
There are essentially five grounds upon which it was contended that
the award should be reviewed and set aside. These are that:
(a)
The
arbitrator should have heard oral evidence in the light of disputes
of fact between the parties;
(b)
The
Arbitrator lacked jurisdiction to deal with the dispute as there was
no proof or evidence that the employee (Kula) was dismissed;
(c)
The
Arbitrator misconceived the whole nature of the enquiry and lacked
jurisdiction to determine the issue as he had defined it;
(d)
The
Arbitrator committed a gross error of law and fact by finding that
the extension of the contract was valid;
(e)
The
compensation awarded was mathematically incorrect, in excess of the
statutory maximum, unreasonable, and amounted to use of
an excess of
power.
[19]
Having evaluated the material that was placed before the Arbitrator
and the conclusions reached, and further having had regard
to the
submissions and arguments made in regards to the grounds of review, I
am of the view that there is cause to review and set
aside the award
for reasons that follow below.
[20]
One of the grounds of review pertains to the manner with which the
parties had presented their respective cases before the
Arbitrator.
The Applicant’s contention was that the issues before the
Arbitrator could not have been properly dealt with
without the
benefit of oral evidence.
The
Applicant had also pointed out that having heard the parties’
opening statements and the issue that was placed before
him to
determine, the Arbitrator should have called for oral evidence in
order to do justice to the case and for the purposes of
a fair trial.
Submissions made on behalf of Kula were to the effect that since the
existence of a dismissal was common cause, there
was no indication
from the record that the Arbitrator had difficulty dealing with the
issues. One of the issues to be determined
by the reviewing court is
whether the Arbitrator gave the parties a full opportunity to state
their respective cases at the hearing.
[21]
Affording parties a full opportunity to state their respective cases
also has the objective of appraising the Arbitrator of
the full
merits of the case to enable him or her to come to an informed and
reasonable decision. The practice of cutting corners
and presenting a
case by simply making oral submissions and burdening arbitrators with
bundles of documents from which they are
expected to make sense and
issue rational and reasonable outcomes is in some instances flawed.
This is even more pertinent in cases
involving alleged unfair
dismissal disputes, where the question of onus is crucial, and also
where material disputes of facts are
either glaring or at most,
should have been foreseen by the parties and the Arbitrator.
[22]
The above concerns were alluded to by Murphy AJA in
C
Arends & Others v SALGBC & Others
[4]
,
where
in regards to the facts of that particular case he stated that:
“
The appellants are to some
extent the authors of their own misfortune. They placed the matter
before the arbitrator as if there
was a simple, single issue capable
of resolution with the barest minimum of factual matter. Their
approach was neither prudent
nor correct. When parties desire to
proceed without oral evidence in the form of a special case, it is
imperative that there should
be a written statement of the facts
agreed by the parties, akin to a pleading. Otherwise, the presiding
officer may not be in a
position to answer the legal question put to
him. Alternatively, without such a statement, the question put is in
danger of being
abstract or academic. Courts of law and arbitration
tribunals dealing with disputes of right exist for the settlement of
concrete
controversies and not to pronounce upon abstract questions
or to give advice upon differing contentions about the meaning of an
agreement. Where a question of legal interpretation is submitted to
an arbitrator, the parties must set out in the stated case
a factual
substratum which shows what has arisen and how it has arisen. The
stated case must set out agreed facts, not assumptions.
The purpose
of the rule is to enable a case to be determined without the
necessity of hearing the evidence. An oral stated case
predicated
upon poorly ventilated and potentially unshared assumptions as to the
facts defeats the purpose of the requirements
of a stated case and,
as this case shows, will lead to problematic results
[5]
.”
(Citations omitted)
[23]
The above is even more apposite in this case. I did not understand
from the record that the parties had convened a pre-arbitration
meeting or compiled minutes in that regard. The parties had not
compiled an agreed statement of facts, nor had they filed any
statement of case. It is accepted that pleadings are not a
requirement in arbitration proceedings. However, where the parties
agree
not to present oral evidence within the context of an alleged
unfair dismissal dispute, and the Arbitrator for some reason
acquiesce
to such an approach, at the very least, it would be
expected of the Arbitrator to embark on a detailed process of
narrowing down
the issues, and recording fully what the issues in
dispute are and those that are common cause, and to properly capture
and understand
the nature of the dispute that is required to be
determined. Amongst the objectives of narrowing down of issues is to
determine
whether the Arbitrator has jurisdiction to determine the
dispute before him or her. Where an arbitrator fails to establish
whether
he or she has jurisdiction right at the commencement of the
proceedings, and it turns out that in fact he or she had no
jurisdiction
at all to determine the dispute, the resultant award
becomes a nullity.
[24]
In this case, and as can be gleaned from the record, the Arbitrator
had made attempts at narrowing down the issues. The issues
however
were common cause in regards to Kula’s date of engagement, his
position, date of dismissal and the relief that he
sought. No attempt
was made into establishing what the facts in dispute were other than
to establish that the issue before him
was whether the fixed term
contract was valid or not.
[25]
It was apparent in this case that material disputes of fact were
bound to arise given the conflicting versions of both sides.
Kula had
referred an alleged unfair dismissal dispute, and the onus was on him
to first prove that he was indeed dismissed as required
by the
provisions of section 192 (1) of the LRA. If indeed there was a
dismissal, the onus would have been on the Applicant to
show that it
was substantively and procedurally fair. When the Applicant’s
representative at the arbitration proceedings
raised the issue of a
dismissal not being in dispute, the Arbitrator’s response was
simply that ‘
It
is a termination. A termination of employment is a dismissal, whether
we like it or not. But it is a termination of employment.
It is a
cessation of employment between the parties
(sic)
[6]
.
[26]
It is accepted that the statutory concept of a “dismissal”
is not the equivalent of a lawful cancellation of a
contract of
employment and that it encompasses much more
[7]
.
The Arbitrator’s comments were clearly incorrect in that not
every termination of employment is a ‘dismissal’
as
defined in section 186 of the LRA, especially in the light of the
onus placed on an employee to prove that indeed there was
a
dismissal. In certain instances there can be a unilateral termination
(by way of resignation), or by mutual termination, and
these do not
necessarily imply a dismissal as defined. Be that as it may, it is
difficult to fathom how any decision would have
been made on these
issues without oral evidence. Even more, there were allegations of
fraudulent misrepresentation against Kula
in respect of the second
contract, and how this was going to be proven without oral evidence
is beyond comprehension.
[27]
In
C
Arends & Others v SALGBC & Others
[8]
,
Murphy AJA in reference to
Minister
of Police v Mboweni and Anothe
r
[9]
stated that a judge faced with a request to determine a special case
where the facts are inadequately stated should decline to
accede to
the request. In my view, given the nature of the case before the
Arbitrator, and further in the light of the glaring
or potential
disputes of fact after the parties had made their opening statements,
the Arbitrator ought to have refused to determine
the matter purely
on the submissions and documents presented.
[28]
It is accepted that parties should stand and fall by the manner with
which they seek to present their respective cases. In
the same token,
section 138 (1) of the LRA places an obligation on the Arbitrator to
deal with the arbitration in a manner that
is considered appropriate
in order to determine the dispute fairly and quickly, but
must
deal with the substantial merits of the case
(my emphasis) with
the minimum of legal formalities. It therefore follows that it is not
purely up to the parties to determine
how they should present their
respective cases. The Arbitrator has a final say in the matter. To
this end, given the nature of
the evidence and facts in dispute, it
cannot be said that the parties were afforded a full opportunity to
state their respective
cases, and it follows that the distorting
effect of this irregularity was to render the result of the outcome
unreasonable.
[29]
Aligned to the difficulties pointed above is the issue whether the
Arbitrator had the requisite jurisdiction to determine the
dispute
before him. The issue raised was that the Arbitrator had no
jurisdiction to arbitrate the dispute on the grounds that at
the time
that the dispute was referred to the SALGBC, there was no dismissal
as Kula’s referral to SALGBC on 5 October 2012,
was in response
to the Applicant’s letter of 2 October 2012. To this end, it
was contended that the referral was premature,
and that since this
was a jurisdictional issue, the court should have regard to it
notwithstanding the fact that it was never raised
at arbitration, and
that on that ground alone, the award should be reviewed and set
aside. Submissions made on behalf of Kula in
this regard were to the
effect that the referral was not premature, as the letter of 10
December 2012 confirmed the dismissal.
[30]
A not so dissimilar argument came before the Labour Appeal Court in
Independent
Municipal And Allied Trade Union and Another v City of Johannesburg
Metropolitan Municipality and Others
[10]
,
where
Musi AJA held that;
“
Although
the lack of jurisdiction was not one of the municipality’s
grounds of review, the court
a
quo
was
entitled to consider this issue
mero
motu
.
The court
a
quo
had
to be satisfied that on the objective facts, the second respondent
had jurisdiction to adjudicate the matter
.
The
second respondent had or it did not have jurisdiction, as a matter of
law, to adjudicate the dispute. In
CUSA
v Tao Ying Metal Industries and Others,
it
was said that:
‘
Where
a point of law is apparent on the papers, but the common approach of
the parties proceeds on a wrong perception of what the
law is, a
court is not only entitled, but is in fact also obliged
mero
motu
,
to raise the point of law and require the parties to deal therewith.
Otherwise, the result would be a decision premised on an
incorrect
application of the law. That would infringe the principle of
legality
[11]
. (Citations
omitted)
[31]
In the light of the above, I am in agreement with the Applicant’s
counsel that the issue of whether the SALGBC and Arbitrator
had the
requisite jurisdiction can be raised even at this stage of the
dispute. It would be remiss of the Court not to consider
the issue of
jurisdiction, in that where the Arbitrator did not have jurisdiction
in the first place, the Court cannot be seen
to countenance an
irregularity if indeed one occurred during the conduct of
proceedings.
[32]
Section 190 of the LRA makes provision in respect of the ‘date
of dismissal’, and states that;
“
(1)
The date of dismissal is the earlier of-
(a)
the date on which the contract of employment terminated; or
(b)
the date on which the employee left the service of the employer.
(2)
Despite subsection (1)-
(a)
if an employer has offered to renew on less favourable terms, or has
failed to renew,
a fixed-term contract of employment, the date of
dismissal is the date on which the employer offered the less
favourable terms
or the date the employer notified the employee of
the intention not to renew the contract;
(b)
if the employer refused to allow an employee to resume work, the date
of dismissal
is the date on which the employer first refused to allow
the employee to resume work;
(c)
if an employer refused to reinstate or re-employ the employee, the
date of dismissal
is the date on which the employer first refused to
reinstate or re-employ that employee.”
[33]
In this case, the Arbitrator was satisfied as from the common cause
facts that a dismissal had taken place on 31 December 2012.
Nevertheless, from the material that were placed before the
Arbitrator it was common cause that Kula was placed on special leave
from 20 August 2012. Whilst on special leave, Mqwathi addressed a
letter to him on 2 October 2012 in respect of the second contract
of
employment. Nowhere in that letter did Mqwathi inform him that his
services had been terminated. At most, Mqwathi had advised
Kula that
the only contract of employment recognized was the initial one which
was due to expire on 31 December 2012.
[34]
Kula referred an alleged unfair dismissal dispute to the SALGBC on 4
October 2012, alleging that the dispute arose on 3 October
2012, and
further summarized the facts of his dispute as follows;
“
Early termination of the
fixed term employment contract without a fair reason and a fair
procedure. My signed fixed term contract
terminates on 30 September
2015 but I have been notified that it will terminate on 31 December
2012”
[35]
In his referral, he also indicated that he was placed on special
leave and had accordingly referred another dispute in that
regard
under case number FSD 091209. A certificate of outcome was issued on
16 November 2012 in respect of alleged early termination
of his
contract, wherein the dispute was characterized as pertaining to
unfair dismissal. In his referral for arbitration he reiterated
that
the dispute pertained to early termination of his fixed term
contract.
[36]
It was however only on 10 December 2012 that Kula was officially
informed that his contract of employment was terminated with
effect
from 31 December 2012. Had the arbitrator taken account of these
facts, he would have realized that notwithstanding the
fact that the
parties had informed him that there were no preliminary issues to be
raised, there was indeed a jurisdictional issue
to be disposed of.
[37]
Whether the Arbitrator had jurisdiction or not was not dependent on
the parties’ say-so. Contrary to submissions made
on behalf of
Kula, the fact that the Applicant failed to raise any preliminary
issues and had therefore waived its rights in that
regard did not
imply that the Arbitrator had automatic jurisdiction. The duty was
still on the Arbitrator to establish and satisfy
himself that he had
such jurisdiction to determine the dispute or not.
[38]
It can therefore be accepted that in line with the provisions of
section 190 of the LRA as stated above, as at 4 October 2012
when
Kula approached the SALGBC and filed a referral, he had not been
‘dismissed’ as contemplated in section 190 of
the LRA,
nor had his contract been terminated. He had also not been dismissed
at the time that the certificate of outcome was issued
and also when
he referred the dispute for arbitration on 16 November 2012. It might
be so that the Arbitrator had assumed from
the referral and
certificate of outcome that he had jurisdiction to arbitrate the
dispute. However, it is accepted in this court
that a certificate of
outcome has no real legal significance, and is merely an indication
that the statutory obligations under
section 135 (5) of the LRA have
been complied with by the conciliator
[12]
.
A certificate of outcome on its own does not confer jurisdiction to
arbitrate a dispute. As can further be gleaned from section
157
(4) (b) of the LRA, a certificate issued by a commissioner or a
council stating that a dispute remains unresolved is
sufficient proof
that an attempt has been made to resolve that dispute through
conciliation.
[39]
The submission made on Kula’s behalf that the letter of
termination addressed to him on 10 December 2012 was confirmation
of
the dismissal does not really assist his case in that a dismissal
cannot be said to be provisional and to be confirmed at a
later
stage. It is either it had taken place as a matter of fact and law or
not. In this case, no dismissal had taken place on
either 2 or 3
October 2012 for the purposes of a referral of the dispute.
[40]
As the referral was premature, the Arbitrator lacked the requisite
jurisdiction to determine the dispute. To the extent that
in his
award he had determined that “
The termination of the
Applicant’s fixed term contract of employment by the respondent
was unfair’
, it follows that the award cannot stand, as at
the time the dispute was referred, the contract had not been
terminated. The award
ought to be set aside on account of it being a
nullity.
[41]
In the light of the above conclusions, no purpose will be served be
addressing other grounds of review as raised by the Applicant.
I have
further had regard to the considerations of law and fairness, and I
am of the view that a cost order is unwarranted in this
case.
Order:
(a)
The
arbitration award, issued by the Second Respondent on 8 February 2013
under case number FSD101208 is reviewed and set aside.
(b)
The
award is substituted with an order that;
‘
The
First Respondent (SALGBC) did not have jurisdiction to determine the
dispute as referred by the Third Respondent (Samuel Butiki
Kula)’
(c)
There
is no order as to costs.
________________
Tlhotlhalemaje, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Adv. MH Marcus
Instructed
by:
Lebea & Associates
On
behalf of the Third Respondent: Adv.
TM Ngcukaitobi
Instructed
by:
Lebea Inc Attorneys
[1]
Act 66 of 1995 as
amended
[2]
Sidumo and
another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC) at para [110]
[3]
See
Goldfields
Mining South Africa (Pty) Ltd v CCMA
(2014) 35 ILJ 943 (LAC) at para [20]. See also
South
African Medical Association obo Mabuza and Others v Commissioner
Moletsane and Others
(JR834/12) [2014] ZALCJHB 66 (14 March 2014) at para [8]
[4]
[2015] 1 BLLR 23
(LAC)
[5]
At para [15]
[6]
Page 181 line 4-5
of the transcribed record.
[7]
Edcon v
Steenkamp and Others
[2015 (4) SA 247
(LAC) at para [40]
[8]
At para [17]
[9]
2014 (6) SA 256
(SCA)
[2014]
6 BLLR 545 (LAC)
[11]
At para [26]
[12]
Bombardier
Transportation (Pty) Ltd) v Mtiya N.O. and Others
at para [12] and at para [14] where it was held that;
“
In
other words, a certificate of outcome is no more than a document
issued by a commissioner stating that on a particular date,
a
dispute referred to the CCMA for conciliation remained unresolved.
It does not confer jurisdiction on the CCMA to do anything
that the
CCMA is not empowered to do, nor does it preclude the CCMA from
exercising any of its statutory powers. In short, a
certificate of
outcome has nothing to do with jurisdiction. If a party wishes to
challenge the CCMA's jurisdiction to deal with
an unfair dismissal
dispute, it may do so, whether or not a certificate of outcome has
been issued. Jurisdiction is not granted
or afforded by a CCMA
commissioner issuing a certificate of outcome. Jurisdiction either
exists as a fact or it does not.”