About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 370
|
|
Lilanda v Mthukwane and Others (JR1609/13) [2015] ZALCJHB 370 (8 October 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
No:
JR1609/13
In
the matter between:
ITUMALENG
ABRAHAM
LILANDA
Applicant
and
MR
J N
MTHUKWANE
First Respondent
SAFETY
AND SECURITY SECTORAL
BARGAINING
COUNCIL
Second Respondent
MINISTER
OF
POLICE
Third Respondent
SOUTH
AFRICAN POLICE SERVICE:
COMMISSIONER
OF
POLICE
Fourth Respondent
Heard:
8 July 2015
Delivered:
8 October 2015
Summary:
Review of jurisdictional ruling that Safety and Security Sectorial
Bargaining Council does not have jurisdiction
JUDGMENT
COOK
AJ;
Introduction
[1]
The Applicant
seeks to review and set aside the jurisdictional ruling of the First
Respondent (“the Commissioner”) dated
11 June 2013 (“the
ruling”), pursuant to which the Commissioner found that the
Second Respondent (“SSSBC”)
does not have jurisdiction to
entertain the decision and substituting the Commissioner’s
ruling with an order that the matter
be set down for con-arb by the
SSSBC, alternatively that the point
in
limine
be
heard by another arbitrator appointed by the SSSBC. The Applicant
also seeks an order that Respondents who oppose the application
should pay the costs thereof jointly and severally; the one paying
the other to be absolved.
[2]
The matter was
opposed by the Third and Fourth Respondents, who sought that the
review be dismissed with costs.
BACKGROUND
[3]
The
Applicant was dismissed from the employer, the Third Respondent, on 8
January 2009 after being charged with rape of a 16-year-old
girl in
Thabazimbi. The Applicant’s criminal conviction and sentence
was set-aside on 23 April 2012.
[1]
[4]
The
Applicant failed to lodge an appeal within ten days as prescribed by
the employee’s disciplinary code of 2006, instead
the Applicant
lodged an appeal three years after he was dismissed. The application
for leave to appeal was accompanied by a condonation
application.
[2]
[5]
The Appeal
Authority considered the appeal together with the application for
condonation and concluded, on 15 November 2012, that
late submission
of grounds for appeal could not be condoned. The Applicant,
thereafter, referred the matter to the SSSBC as an
unfair dismissal
dispute on 4 December 2012.
[6]
Commissioner
ruled that the SSSBC did not have jurisdiction to entertain the
dispute as it was referred to the Council outside the
30-day period
prescribed by Council Rules and the Applicant had not applied for
condonation.
The
arguments
[7]
It was the
Fourth Respondent’s argument that the Applicant filed his
notice of appeal late and that his application for condonation
was
refused by the internal appeals authority.
[8]
The Fourth
Respondent argued that the SSSBC does not have jurisdiction to
entertain the unfair dismissal for the following reasons:
a.
The date of
the Applicant’s dismissal is the date on which the Fourth
Respondent had taken a decision to dismiss him and not
the time when
the Applicant was informed about the appeal.
b.
The fact that
the Applicant appealed and that the appeal was accompanied with an
application for condonation should not be regarded
as exhausting the
internal procedures.
c.
The Applicant
must apply for condonation to the SSSBC and it must first be granted.
d.
The
date of dismissal is the date when the Applicant was dismissed at his
disciplinary hearing and not the date of decision by the
appeals
authority.
[3]
[9]
It was argued
on behalf of the Applicant that although the Applicant submitted his
appeal outside the 10-day period provided for
in terms of section 17
of the disciplinary regulations of the SAPS, in terms of Section 17,
provision is made for application for
condonation, if the employee
submits his appeal outside the prescribed period and Applicant indeed
filed such an application for
condonation.
[10]
It was argued
that the unfair dismissal dispute was therefore referred to the SSSBC
within the prescribed 30 days after the internal
appeals procedure
was exhausted as provided in terms of paragraph 1.5(c) of the SSSBC
dispute procedure.
[11]
It is
submitted that the SSSBC dispute resolution procedure, more
specifically clause 3.5.1(b), stipulates that:
‘
The
dispute must be referred to the Council within 30 days after all
internal procedures have been exhausted as set out in paragraphs
1.5(b) and (c).’
[12]
It is further
submitted that from the above clauses, the Applicant has indeed
exhausted the internal appeal procedures as stipulated
in the outcome
of appeal dated 15 November 2012; and that he has submitted the
referral to the Council within the 30 days after
the internal appeal
procedure had been exhausted. It is further argued that the internal
appeals procedure was exhausted on 15
November 2012 and the unfair
dismissal dispute was referred to the Council on 4 December 2012 in
terms of paragraph 1.5(a), (b)
and (c) of the SSSBC dispute
procedures.
[13]
It is further
submitted that the final decision of the employer was only taken on
15 November 2012.
[14]
The Fourth
Respondent argues that the date of dismissal is 8 January 2009 and
that he should have referred the matter to the SSSBC
within 30 days
after such date and not the date 15 November 2012 when the appeal was
finalised.
Case
law
[15]
In
Herholdt
v Nedbank Limited, (Congress of South African Trade Unions as amicus
curiae),
[4]
the SCA described the standard of review as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to
amount to
a gross irregularity as contemplated by section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the
inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could
not reach on all the
material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be
attached to particular facts,
are not in and of themselves sufficient for an award to be set aside,
but are only of any consequence
if their effect is to render the
outcome unreasonable.’
The
relevant sections
[16]
In terms of the South African Police
Service Discipline Regulations of 2006:
‘
17.
Appeal
(4)
The employer must within ten (10) working days of receiving the
notice of the final
outcome of the hearing, submit the appeal to the
administrative officer of the appeals authority.
(5)
The appeals authority may on good cause shown condone the late
lodging of an appeal.’
[17]
In terms of
the dispute procedure for the Safety and Security Sectoral Bargaining
Council:
‘
1.5
This procedure applies to all disputes that may be referred to the
council including:
...
unfair
labour practice disputes after the internal grievance procedure has
been exhausted; or
disputes
with reference to unfair dismissals or disciplinary measures short of
dismissal, after the internal appeals procedure has
been exhausted,
or the time period as stipulated in the relevant prescripts has
lapsed
.
and
3.5
Disputes that the Council jointly conciliates and arbitrates:
3.5.1
If the dispute is one that is contemplated in terms of clause 3.1(c),
that is a dispute that in terms of
the Act the Council must
conciliate and arbitrate, it must be referred to the Council for
joint conciliation and arbitration.
Such disputes include
disputes over dismissals for misconduct and incapacity, unfair labour
practice disputes (excluding disputes
concerning alleged
discrimination). In respect of these disputes, the following
procedure applies:
...
(b)
the dispute must be referred to the Council within 30 days after all
internal procedures
have been exhausted as set out in clause 1.5 (b)
and (c) above.’
Conclusion
[18]
In terms
1.5(c) of the Dispute Procedure for the Safety and Security Sectoral
Bargaining Council:
‘
After
an internal appeals procedure has been exhausted or the time period
as stipulated and the relevant prescripts have lapsed.’
[19]
The above clause envisages two
scenarios. The first is that if an appeal has been lodged, then the
30-day period starts to run when
the appeal has been exhausted. The
second is that if an appeal has not been lodged, then the 30-day
period starts to run from the
expiry of the time to lodge the appeal.
[20]
The time period as stipulated in section
17 of South African Police Service Discipline Regulations of 2006 to
lodge an appeal is
within 10 working days of receiving the notice of
the final outcome of the hearing.
[21]
Accordingly, the referral to the
bargaining council ought to have been made within 30-days after the
period to lodge an appeal had
expired, namely 10 working days day
after receiving the notice of the final outcome of the hearing.
[22]
Any other interpretation of clause
1.5(c) read with 3.5.1(b) would result in intolerable outcomes as it
would provide an employee
with the opportunity to refer a matter to
the bargaining council without the need for condonation by simply
lodging an appeal with
a condonation application and then stating
that the internal procedures were only exhausted once the condonation
application was
refused.
[23]
This would have ridiculous and
unacceptable consequences as, theoretically, the employee could wait
50 years and then bring a condonation
application for his late appeal
and then simply refer the matter to the bargaining council. This
interpretation would completely
violate a fundamental principle of
labour law that the matters should be resolved speedily.
[24]
Accordingly, the Court finds that the
ruling of the Commissioner that the council does not have
jurisdiction to entertain the dispute
as it was referred to the
council outside the 30-day period prescribed by the council rules is
one that a reasonable decision maker
would have reached on the facts
before the commissioner.
[25]
Accordingly, the Court makes the
following order:
1.
The review application is dismissed;
2.
The Applicant is ordered to pay the costs.
____________
Cook,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For
the Applicant:
J M Gouws
Instructed
by:
Johan Gouws Attorneys
For
the Respondent:
Advocate M I Malowa
Instructed
by:
The State Attorney
[1]
Page 81 of the indexed bindle.
[2]
Paragraphs 4 and 5, page 2 of the Third and Fourth Respondents’
heads of argument
[3]
Paragraphs 5.3 to 5.4.4, pages 3-4 of the Applicant’s heads of
argument
[4]
[2013] 11 BLLR 1074
(SCA)