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[2015] ZALCJHB 415
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Mashego v Cellier NO and Others (JR2721/13) [2015] ZALCJHB 415; (2016) 37 ILJ 994 (LC) (26 November 2015)
REPUBLIC
OF SOUTH AFRICA
Reportable
Of interest to other judges
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
C
ase
no: jR 2721/13
In the matter
between:
REGGY MASHEGO
Applicant
and
COMMISISONER L CELLIER N.O.
First Respondent
CCMA
Second Respondent
SOUTH AFRICAN AIRWAYS (PTY) LTD
Third Respondent
Heard
:
29 October 2015
Delivered
:
26 November 2015
Summary:
Review – commissioner ruling that dispute is
res judicata
after striking matter off the roll on previous occasion – real
dispute relating to dismissal for misconduct – remitted
for
arbitration. Purpose of LRA discussed.
JUDGMENT
STEENKAMP J
Introduction
[1]
This case should never
have served before the Labour Court. The fact that it was escalated
to this level goes against the grain
of the spirit, purpose and
object of the Labour Relations Act.
[1]
The applicant was dismissed for misconduct. He wants that dispute
arbitrated in the way that the LRA envisaged – in a simple,
cheap and quick manner. But two and a half years and thousands of
Rands of legal fees later, he is nowhere close to achieving that
goal.
[2]
The reason for this unsatisfactory state of
affairs is, in a nutshell, that his trade union representative
suggested in an initial
arbitration that he was dismissed because of
his trade union membership. The employee has since made it clear that
that is not
his cause of action. He accepts that he was dismissed for
misconduct – the reason given by his employer, SAA. But because
of that remark, the commissioner hearing the arbitration decided that
the CCMA did not have jurisdiction. He struck it from the
roll. When
the employee tried to re-enrol the unfair dismissal dispute for
arbitration, the commissioner ruled that it was
res
judicata
. The employee – now
having had to obtain legal representation – applied to have
that ruling reviewed and set aside.
[3]
Common sense dictates
that the real dispute – unfair dismissal for misconduct –
should be remitted to the CCMA for arbitration.
But SAA – a
state-owned enterprise
[2]
that is largely funded by the fiscus and hence the taxpayer –
prefers to drag out the dispute in this Court, incurring further
legal fees and forcing the employee to do the same.
Background facts
[4]
The employee was an airways customer
service agent for 13 years. He received a notice to attend a
disciplinary hearing to answer
to allegations of misconduct
comprising unauthorised absence and disobedience. He was dismissed in
April 2013.
[5]
He referred an unfair dismissal dispute to
the CCMA. It was unresolved at conciliation. He referred it to
arbitration. It came before
the first respondent, Commissioner Lance
Cellier. It is common cause that it was referred and heard as an
unfair dismissal dispute
relating to misconduct. SAA started leading
evidence. The employee was represented by a union official, Mr
Ephraim Mphahlele of
the National Transport Movement (NTM) (an
offshoot of SATAWU). During the course of cross-examining the first
witness, the union
official suggested that the employee’s
dismissal was based on his affiliation to NTM. The Commissioner
suspended the proceedings
and struck the matter from the roll on the
basis that the CCMA does not have jurisdiction to continue to
arbitrate the dispute.
The first ruling
[6]
The arbitrator’s handwritten ruling
dated 26 August 2013 reads as follows:
“
This
matter was part heard and continued with the cross examination of
respondent’s first witness. The line of questioning
indicated a
possible jurisdictional issue and in terms of rule 22 of the CCMA
rules I called upon the referring party to prove
that the commission
had jurisdiction to arbitrate the dispute. The referring party in
this instance was unable to do so as it is
basing their case on
section 187(1)(d) of the LRA – documentation in bundle A was
referred to in support of their submissions.
I must find in terms of
s 191(5)(b)(i) of the LRA that the LC has jurisdiction to determine
this dispute. This matter is to be
struck from the CCMA roll.”
The second ruling
[7]
Faced with this scenario, the employee
terminated the mandate of his union representative. He took legal
advice and made it clear
to his current attorneys of record that the
real dispute did not relate to any allegation that he was victimised
as a result of
his association with NTM. Instead, it was simply an
unfair dismissal dispute in relation to alleged misconduct.
[8]
The employee’s attorneys applied to
have the unfair dismissal dispute re-enrolled for arbitration at the
CCMA. In an affidavit
accompanying the application for enrolment, the
employee stated under oath that his union representative acted
without his instructions
when he stated that his dismissal was
premised upon his affiliation to NTM; that he had been advised that
the Labour Court does
not have jurisdiction to entertain an unfair
dismissal dispute as a result of misconduct; and:
“
The
dominant reason for my dismissal was for alleged misconduct. I do not
intend to rely upon any other reasons such as victimisation
or the
fact that I was involved in union activities or the fact that I was a
shop steward.”
[9]
The application for re-enrolment was not
opposed by SAA. Nevertheless, the CCMA refused to re-enrol the unfair
dismissal dispute.
Instead, the same Commissioner (the first
respondent) issued a ruling on 22 November 2013 that his earlier
ruling of 26 August
2013 was
res
judicata
. He refused to re-enrol the
dispute on this basis:
“
I
am not aware of any provision in the LRA which confers jurisdiction
on me to set down and/or re-enrol the matter for arbitration
before
the commission under these circumstances or the circumstances
detailed by the employee party.
The
application is denied.”
[10]
The employee seeks to have that ruling
reviewed and set aside in terms of s 158(1)(g) of the LRA.
Review grounds
[11]
The employee has applied to have only the
second ruling (refusal to re-enrol) reviewed and set aside. Mr
Sibanda
,
for SAA, criticised him and his legal team for that fact. He argued
that they should have brought an application to have the first
ruling
– to which he referred as a jurisdictional ruling –
reviewed by this Court or rescinded by the Commissioner.
I debated
that with Mr
Hutchinson
in
the course of argument. But, on reflection, it is clear that the
first ruling is not a final ruling that could have been taken
on
review. The Commissioner made it clear that the matter was simply
struck off the roll. That is not a ruling that is final in
nature.
[12]
The employee seeks to have the second
ruling set aside on the grounds that it is unreasonable; and that the
Commissioner misconceived
the nature of the enquiry. The employee did
not challenge the correctness of the Commissioner’s first
ruling and was not
asking him to change it; he was simply stating
that he had elected to abandon the grounds proffered by his union
representative
that would form the subject matter of an automatically
unfair dismissal dispute. Therefore the Commissioner should simply
have
re-enrolled the real dispute, i.e. an unfair dismissal dispute
based on misconduct.
Evaluation / Analysis
[13]
The employee, in clear terms, disavows any
reliance upon and allegation of an automatically unfair dismissal. He
did so under oath
in his application for re-enrolment at the CCMA. He
did so again in this review application. And his counsel reiterated
from the
bar that, insofar as it may be necessary, he abandoned any
reliance on such a cause of action. Quite simply, he accepts that he
was dismissed for misconduct; he submits that it was unfair; and he
wants that unfair dismissal dispute to be arbitrated at the
CCMA.
The appropriate test
[14]
It does not seem to me
that the reasonableness test is the appropriate review test in this
context. The question whether the dispute
was
res
judicata
is a
jurisdictional one. Therefore correctness, and not reasonableness, is
the test.
[3]
Context: The LRA, its aims and objectives
[15]
The Constitution
guarantees the right to fair labour practices.
[4]
The LRA gives effect to those rights. One of its primary objects is
to promote the effective resolution of labour disputes.
[5]
In order to be effective, dispute resolution should be speedy.
[6]
And both time and legal costs should be minimised. In
National
Education Health and Allied Workers Union v UCT
[7]
the Constitutional Court recognised this principle and said:
“
By
their nature labour disputes must be resolved expeditiously and be
brought to finality so that the parties can organise their
affairs
accordingly. They affect our economy and labour peace. It is in the
public interest that labour disputes be resolved speedily.
. .”
[16]
As the learned authors
in
Labour Relations
Law: a Comprehensive Guide
[8]
point out, the drafters of the LRA intended that disputes be resolved
quickly. The Explanatory Memorandum noted that the brief
of the task
team drafting the LRA was, amongst other things, to “provide
simple procedures for the resolution of disputes
through statutory
conciliation, mediation and arbitration”. It was meant to adopt
“a simple non-technical and non-jurisdictional
approach the
dispute resolution”. By providing for the determination of
dismissal disputes by final and binding arbitration,
the act adopted
“a simple, quick, cheap and non-legalistic approach to the
adjudication of unfair dismissal.”
[17]
None of these objects have been met in this
case.
The first ruling and the real dispute
[18]
It is significant that, in his first
ruling, the arbitrator did not make a final ruling. He simply stated
that the matter should
be struck from the CCMA roll. That becomes
significant when considering the second ruling.
[19]
Before turning to the
second ruling, though, something needs to be said about the readiness
of CCMA commissioners to relinquish
jurisdiction at the first sign of
an alternative cause of action being raised, and without having heard
all the evidence. Van Niekerk
J recently had occasion to comment on
the same trend.
[9]
I align myself with those comments:
“
The
applicant’s case appears, to some extent at least, to rest on
the assumption that it was somehow incumbent on the commissioner
to
intervene in the process and herself to decide that the real dispute
between the parties was one that concerned a dismissal
on account of
pregnancy. There is a trend in the CCMA for commissioners to
intervene on this basis and to halt arbitration proceedings
and refer
a dispute to this court when the commissioner forms the view that he
or she has no jurisdiction on the basis that the
real dispute between
the parties concerns a reason for dismissal that is listed as
automatically unfair. This is an unfortunate
trend. A party referring
a dispute to the CCMA must stand or fall on the merits of that
dispute. If it is clear from an initial
interrogation of the dispute
that the applicant has erred in referring a dispute concerning an
automatically unfair dismissal to
the CCMA, there can be no harm done
in advising an applicant of that fact and that the matter ought
appropriately to be referred
to this court for adjudication. However,
where as in the present instance, the parties make conscious
decisions to run a case in
an arbitration process in full
appreciation of the jurisdictional consequences of their election, it
is not appropriate for commissioners
to intervene by abandoning the
proceedings, thereby dictating to parties what he or she thinks their
real dispute is and how it
should be litigated.”
[20]
In this case, despite the initial confusion
created by his trade union representative’s comments, the
employee made it clear
– in his initial referral and in his
re-enrolment application – that he wished to continue with the
arbitration on
the basis that he abandoned any claim to an
automatically unfair dismissal. It is in the context of the question
arises whether
the Commissioner correctly ruled that the dispute was
res judicata
.
The second ruling: res judicata?
[21]
A ruling that the dispute should be struck
from the roll is not final in effect. The arbitrator committed an
error of law when he
ruled that the dispute was
res
judicata
. That led to an unreasonable
result depriving the employee of having the real dispute –
unfair dismissal based on misconduct
– arbitrated before the
CCMA, which is the forum with jurisdiction to hear that dispute.
[22]
The Labour Appeal Court
has confirmed that the
functus
officio
doctrine –
closely aligned to that of
res
judicata
–
does apply to CCMA commissioners.
[10]
But it only applies when they have made a ruling that is final in
effect.
[11]
In
PT Operational
Services
[12]
Musi AJA stressed that “it is only after an administrative
agency has finally performed all its statutory duties or functions
in
relation to a particular matter which is subject to its jurisdiction
that it can be said that its powers or functions was spent
by its
first exercise.” In that case, he expressed the view that it
was unfortunate that commissioner Cellier – the
same
commissioner as the first respondent in this case – dismissed
the application before him instead of striking it from
the roll. He
continued: “I have seen many rulings of a technical or
formalistic nature where the correct order ought to be
striking a
matter from the roll but the matter would be dismissed instead.”
Perhaps taking that admonition to heart, Commissioner
Cellier in this
case did strike the matter from the roll instead of dismissing it.
For that reason, it was not
res
judicata.
In the
context of a matter being struck from the roll for lack of urgency,
Musi AJA cited with approval the following
dictum
by Cameron JA (as he then was) in
Hawker
Air Services:
[13]
“
Where
the application lacks the requisite element or degree of urgency, the
court can, for that reason, declined to exercise its
powers under
rule 6(12)(a). The matter is then not properly on the court’s
roll, and it declines to hear it. The appropriate
order is ordinarily
to strike the application from the roll. This enables the applicant
to set the matter down again, on proper
notice and compliance.”
And Musi AJA
also cited Jones J in
Vena v Vena:
“
My
understanding of an order for the dismissal of a claim in
circumstances such as these is that, generally speaking, it is
equivalent
to an order for absolution from the instance, in which
event it is open to an applicant to set the matter down again. In a
given
set of circumstances, it may be that dismissal may amount to a
final judgement on an issue, with the consequence of
res
judicata
. But that is not in the normal
course where the case turns on a procedural point, and, I believe, it
is not the case here.”
[23]
Musi AJA concluded:
“
One
will still have to enquire, where there is doubt, whether the matter
was dismissed on the merits or not. If it was dismissed
on the merits
then the order is final. If not, then it is not final.”
[24]
A party to a dispute
before the CCMA may withdraw it before it has been finally decided
and re-enrol it.
[14]
In my view, similar considerations apply in this case. Although the
employee did not withdraw the dispute, the commissioner struck
it
from the roll. He did not finally decide it on the merits. I do not
see why that precluded the employee from re-enrolling it.
Conclusion
[25]
In this case, the Commissioner struck the
matter from the roll when he made his first ruling. He did not
dismiss the dispute on
the merits. The dispute was not
res
judicata
. When he ruled that it was,
after the employee had applied for the real dispute to be
re-enrolled, he committed an error of law.
That led to not only an
incorrect finding, but also an unreasonable result that must be
reviewed and set aside. The real dispute
must be remitted to the CCMA
for arbitration before another Commissioner.
Costs
[26]
Section 162 of the LRA enjoins this court
to take into account the requirements of law and fairness when making
an order for the
payment of costs. When deciding whether or not to
order the payment of costs, the court may take into account –
(a)
whether the matter referred to the court
ought to have been referred to arbitration and, if so, the extra
costs incurred in referring
the matter to the court; and
(b)
the conduct of the parties –
(i)
in proceeding with or defending the matter
before the court; and
(ii)
during the proceedings
before the court.
[15]
[27]
In this case, SAA was entitled in law to
defend the arbitrator’s ruling; but in fairness, it should, in
my view, have agreed
that the dispute – being an alleged unfair
dismissal for misconduct – be referred back to arbitration.
[28]
When I criticise the conduct of SAA in
proceeding with and defending this matter, rather than agreeing to
have it remitted to arbitration,
I intend no slight to its counsel.
At no stage did I form the impression that Mr
Sibanda
persisted in advising his client to do so. Instead, he was clearly
acting on instructions. After I had raised the question in chambers
whether the dispute should not simply be referred back to
arbitration, he took instructions. When the parties could not reach
agreement, the matter was called in open court. I raised the question
again from the bench. He again took instructions. He then
informed me
in open court that he had been instructed “from the highest
levels in SAA” to proceed.
[29]
In the circumstances, taking into account
the aims of the LRA and the provisions of fairness, SAA should be
held liable for the
employee’s costs. Even though it is a
notorious fact of which I can take judicial notice that SAA is
constantly running at
a loss, it still has deeper pockets than the
applicant, an individual employee who has been dismissed. There was a
simple solution
to this matter that would have curtailed the costs
that the employee had to incur. In fairness, SAA should carry those
costs.
Order
[30]
Taking all these factors into account, I
make the following order:
30.1
The ruling of the first respondent
(Commissioner Lance Cellier) dated 22 November 2013 under case number
GAEK 3812 – 13 is
reviewed and set aside.
30.2
The CCMA (the second respondent) is
directed to set the unfair dismissal dispute referred to it by the
applicant under case number
GAEK 3812-13 in terms of s 191(5)(a) of
the LRA down for arbitration before a commissioner other than the
first respondent.
30.3
The third respondent (SAA) is ordered to
pay the applicant’s costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
W
Hutchinson
Instructed
by Fluxmans Inc.
THIRD
RESPONDENT:
M
Sibanda
Instructed
by Norton Rose Fulbright.
[1]
Act 66 of 1995.
[2]
Although it is cited as South Airways (Pty) Ltd, its only
shareholder is the State.
[3]
Cf
SARPA v SA Rugby (Pty) Ltd
[2008]
9 BLLR 845 (LAC).
[4]
Constitution s 23.
[5]
LRA s 1(d)(iv).
[6]
Cf
CWIU v Darmag Industries (Pty) Ltd
[1999]
8 BLLR 754
(LC) para [29];
[7]
2003 (3) SA 1
(CC);
2003 (2)
BCLR 154
(CC) para [31].
[8]
Du Toit et al,
Labour Relations Law: a
Comprehensive Guide
(6ed 2015, LexisNexis p
117).
[9]
Ngobe v JP Morgan Chase
Bank
[2015] ZALCJHB 317 (17 August
2015) para [12].
[10]
PT Operational Services (Pty) Ltd v RAWUSA
obo Ngweletsana
(2013) 34
ILJ
1138 (LAC) para [28].
[11]
SAMWU v South African Local Government
Bargaining Council
(2014) 35
ILJ
2824 (LAC) para [19].
[12]
Supra
para [30].
[13]
Commisioner, SA Revenue Services v Hawker Air
Services (Pty) Ltd; Commissioner for SARS v Hawker Aviation
Partnership
[2006] ZASCA 51
;
2006 (4) SA 292
(SCA) para [9],
cited in
PT Operational Services (supra)
para
[33] – [34].
[14]
SAMWU v CCMA
(2014)
35
ILJ
2011 (LC);
Ncaphayi v CCMA
(2011)
32
ILJ
402 (LC).
[15]
LRA s 162(2).