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 380
|
|
Nkosi v Putco Limited (JS793/13) [2015] ZALCJHB 380 (22 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not reportable
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JS 793/13
In the matter between:
ABEL
DOCTOR
NKOSI
Applicant
and
PUTCO
LIMITED
Respondent
Heard:
9 October 2015
Delivered:
22 October 2015
JUDGMENT
VAN
NIEKERK J
[1]
This is an interlocutory application to determine a number of points
in
limine
raised by the respondent in a dispute referred to
this court concerning the fairness of the applicant’s
dismissal. The points
in
limine
go to the court’s
jurisdiction to entertain the applicant’s referral. For the
sake of convenience, I will referred
to the parties as they are
referred to in the main action.
[2]
It is not disputed that the applicant was dismissed by the respondent
in October 2012
after it was alleged that he instigated and
participated in an unprotected strike. A dispute concerning the
applicant’s alleged
unfair dismissal was referred by the trade
union of which he was a member (TAWUSA) to the South African Road
Passenger Bargaining
Council. That dispute was dismissed by the
bargaining council on 27 February 2013 when the applicant and his
representative failed
to appear before the bargaining council. The
dismissal ruling was not challenged by the applicant or his trade
union, nor was it
sought to be rescinded.
[3]
The applicant then referred the same dispute to the CCMA. The
respondent did not receive
the application nor the application for
condonation for late referral that accompanied it. A conciliation
meeting was held on 21
June 2013 and once the applicant’s late
referral had been condoned, certificate of non-resolution of the
dispute was issued.
The respondent then applied to rescind the
condonation ruling. On 8 August 2013, the CCMA granted the
application and the condonation
ruling was set aside. The
commissioner concerned directed that the jurisdictional issues be
dealt with at the arbitration hearing.
That hearing commenced on 13
August 2013 and on 27 August 2013 the commissioner ruled that the
CCMA had no jurisdiction to arbitrate
the dispute. In the ruling,
without any application for condonation for the late referral of the
dispute having been made, and
despite the fact that the prior order
granting condonation had been rescinded, the commissioner granted the
applicant condonation
for the late referral of his dispute and ruled
that the applicant should within a period of six weeks refer the
dispute to this
court. The dispute was referred on 3 October 2013,
outside of the 90 day period prescribed by section 191 of the LRA,
and without
any application for condonation.
[4]
In these proceedings, the respondent contends that the applicant
correctly referred
his dispute to the bargaining council. (There is
no dispute that the bargaining council had jurisdiction.) While s 147
provides
that the CCMA may exercise jurisdiction in certain
circumstances where the parties fall within the jurisdiction of the
bargaining
council, the respondent contends that it was not competent
for the applicant to do so given that the dispute had already been
dismissed
by the bargaining council, and that he referred the dispute
to the CCMA in the full knowledge that the council had jurisdiction.
[5]
In my view, there is merit in the submissions. Section 147 simply
confers a discretion
on the CCMA, if it becomes apparent that the
parties to the dispute are parties to a bargaining council, either to
refer the dispute
to that council for resolution, or to appoint a
commissioner to resolve the dispute. That section is not an
invitation to parties
who, having had their disputes dismissed by a
bargaining council with jurisdiction, attempt a referral of the same
dispute to the
CCMA, certainly not in circumstances where the
bargaining council’s dismissal ruling remains in force. Indeed,
the applicant’s
conduct is nothing less than disingenuous and
an attempt to avoid the consequences of the bargaining council’s
ruling. To
the extent that the applicant submits in these proceedings
that the failure to attend the conciliation convened by the
bargaining
council was the fault of his then legal representative,
the applicant ought to have made out a case for the review for
rescission
of the dismissal ruling. The applicant was not entitled,
as he did, simply to treat the ruling as a nullity. In the
circumstances,
and given particularly the existence of a valid ruling
by a bargaining council with jurisdiction that a dispute referred to
it
ought to be dismissed, it was not open to the CCMA to assume
jurisdiction or convene any conciliation meeting or issue any
certificate
of outcome. It follows to that the arbitrating
commissioner’s conduct in granting condonation were no
application for condonation
had been made and in the face of a prior
ruling rescinding condonation previously granted, while grossly
defective, is of no consequence
in these proceedings. So too is the
commissioner’s ruling that the applicant referred his dispute
to this court within six
weeks, ruling that is irreconcilable with
the provisions of s 191 (11)(a) of the Act.
[6]
Given these conclusions, it is not necessary for me to consider the
respondent’s
submissions in relation to the failure by the
applicant to comply with s 191 of the Act, and the respondent’s
submissions
in relation to
National Union of Metalworkers &
another v Driveline Technologies (Pty) Ltd & another
(2000)
21 ILJ 142 (LAC) and
National Union of Metalworkers & another
v Intervalve (Pty) Ltd
(2015) 36 ILJ 363 (CC). With regard to the
latter, it seems to me that confirmed is the referral of a dispute to
conciliation as
a precondition to arbitration or adjudication by this
court. In the present instance, it seems to me that there was a valid
referral
to the bargaining council. The jurisdictional obstacle in
the present instance is the council’s ruling on 27 February
2013
that the referral be dismissed.
[7]
Finally, the court is indebted to the applicant’s counsel and
attorneys who
appeared pro bono.
[8]
For the above reasons, the respondent’s point in
limine
is upheld and it is declared that this court has no jurisdiction to
entertain the applicant’s referral.
I
make the following order:
1.
The
applicant’s referral is dismissed.
2.
There is no
order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For
the Applicant: Adv. L Abrahams instructed by Webber Wentzel
For
the Respondent: Adv. ZM Navsa instructed by Bowman Gilfilan Inc.