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[2015] ZALCCT 2
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Helderberg International Importers (Pty) Ltd v McGahey NO and Others (C02/2014) [2015] ZALCCT 2; [2015] 4 BLLR 430 (LC); (2015) 36 ILJ 1586 (LAC) (23 January 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
C02/2014
DATE:
23 JANUARY 2015
In
the matter between:
HELDERBERG
INTERNATIONAL IMPORTERS
(PTY)
LTD
...................................................................................................
Applicant
And
J.W.
McGAHEY
N.O
.....................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
................................................................
Second
Respondent
E.
HERSKOVITZ
.........................................................................
Third
Respondent
Date
heard: 6 August 2014
Delivered:
23 January 2015
Summary:
Application to review an arbitration award: whether jurisdictional
pre-requites existed to arbitrate a dispute in which
constructive
dismissal referral pre-dated the end of the employee’s notice
period; section 190 of the LRA not applicable
to constructive
dismissal disputes.
JUDGMENT
RABKIN-NAICKER
J
[1] This is an
opposed application to review and set aside an arbitration award
under case number WECT 14750. The second respondent
(the
Commissioner) found that the third respondent (Herskovitz) had been
constructively dismissed and compensated him in an amount
equivalent
to six months salary, being R342,000.00.
[2] A
point in
limine
was raised by the applicant (the company) at the beginning
of the arbitration. It pertained to the allegation that the CCMA
referral
was served prematurely, and prior to the effective date of
dismissal as defined, and as contemplated in section 190(1) of the
LRA.
Herskowitz’s contract of employment was terminated by him
(on notice of one calendar month) on 31 August 2013. It was submitted
by the company that that the effective date of termination of the
contract of employment was therefore 30 September 2014 as Herkowitz
continued to tender his services up to that date. The referral to the
CCMA was made on 26 September 2013.
[3] The
Commissioner records his dismissal of the point
in limine
as
follows:
“
10.
The respondents argued that the CCMA did not have jurisdiction to
hear the matter as the applicant had referred the dispute
during his
notice period and before the date of dismissal. He believed that the
applicant should now re-submit his referral form
and apply for
condonation for a now late referral. This was their interpretation of
section 190(1) of the Act. The applicant argued
that was just another
example of the respondent attempting to prejudice the applicant for
no good reason. It had not been raised
as a problem at conciliation.
11.
I ruled that section 191(1) required a referral to be made within 30
days of the dismissal. The respondent resigned on 31 August
2013
which I take as the date of the dismissal (see also section 186(1)(e)
of the Act) and agreed to work out his one month’s
notice. The
applicant referred the alleged constructive dismissal to the CCMA on
26 September 2013. There is nothing in the Act
which removed
jurisdiction from the CCMA in these circumstances. To do so would
severely prejudice the applicant and unnecessarily
prolong the whole
process. I could see no prejudice to the respondents in doing so and
none was suggested.”
[4] Section 186
(1) (e) of the LRA, referred to by the Commissioner, provides that
“dismissal” means that:
“
an
employee terminated a contract of employment with or without notice
because the employer made continued employment intolerable
for the
employee.”
[5] It is
submitted on behalf of the company that the Commissioner ignored the
provisions of section 190(1)(a) of the LRA in making
the above
finding. Section 190(1) of the LRA reads as follows:
“
190 Date
of dismissal
(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.”
Evaluation
[6] It is now
trite that on jurisdictional points such as that before the
Commissioner, this court does not apply the review
test as set
out in
Sidumo
.
In
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd
[1]
,
Tlaletsi AJA (as he then was) writing a judgment for the Labour
Appeal Court, held that:
'[39]
The issue that was before the commissioner was whether there had
been a dismissal or not. It is an issue that goes to the
jurisdiction
of the CCMA. The significance of establishing whether there was a
dismissal or not is to determine whether the CCMA
had jurisdiction
to entertain the dispute. It follows that if there
was no dismissal then the CCMA had no jurisdiction
to entertain the
dispute in terms of s 191 of the Act.
[40]
The CCMA is a creature of statute and is not a court of law. As a
general rule, it cannot decide its own jurisdiction. It
can only make
a ruling for convenience. Whether it has jurisdiction or
not in a particular matter is a matter to be
decided by the Labour
Court. In Benicon Earthworks & Mining Services (Pty) Ltd v Jacobs
NO & others (1994) 15 ILJ 801 (LAC)
at 804C-D, the old Labour
Appeal Court considered the position in relation to the Industrial
Court established in terms of the
predecessor to the current Act.
[41]
The question before the court a quo was whether, on the facts of the
case, a dismissal had taken place. The question was not
whether the
finding of the commissioner that there had been a dismissal of the
three players was justifiable, rational or reasonable.
The issue was
simply whether, objectively speaking the facts which would give the
CCMA jurisdiction to entertain the dispute existed.
If such facts did
not exist, the CCMA had no jurisdiction irrespective of its finding
to the contrary.'
[7] Section 190
of the LRA was amended in 2000 to deal with the issue of the “date
of dismissal”. The rationale of this
particular amendment was
set out in the
Labour Relations Amendment Bill, 2000
Explanatory Memorandum
in which the drafters stated that:
“
Date of
Dismissal - Amendment to Section 190 An amendment has been made to
clarify the date of dismissal as being the date on which
a final
decision to dismiss an employee was made. This clarifies the position
when employers have internal appeal procedures.”
[8] Section
190(1) does not apply to a constructive dismissal as is clear from
the purpose of the provision. In a constructive dismissal,
an
employee makes the final decision as to when she ceases providing
services. In terms of section 186(1)(e) she can do so with
or without
notice, and may refer a dispute to the CCMA that she was
constructively dismissed. The employment relationship terminates
on
the day she leaves service. In my judgment, in any constructive
dismissal dispute the date of termination of the contract
of
employment and the date of leaving the service of an employer are
contemporaneous – on that date, an employee will no
longer be
remunerated or tender her services.
[9] Herskowitz
tendered his services until the end of his notice period and received
remuneration for this period. The employment
relationship still
subsisted at the date of his referral to the CCMA. A different
situation pertained in the matter of
Chabeli
v Commission for Conciliation, Mediation & Arbitration &
others
[2]
in which an employee claimed constructive dismissal after giving
notice. In that case the employer did not require him to work
out his
notice period, and the court found that the date of his dismissal was
the date on which he ceased to provide services to
the employer. It
was necessary therefore that he referred his dispute to the CCMA
within thirty days of ceasing to provide his
services.
[10] It was
submitted on behalf of Herskowitz that the judgment in
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & Others
[3]
applies to this matter, with that case being understood as authority
for the proposition that once a certificate of outcome is
issued by a
conciliating commissioner, an arbitrator has the requisite
jurisdiction to hear a matter until that certificate is
set aside.
However that reading of the
Fidelity
Guards
matter has not been sustained in this court. In
Bombardier
Transportation (Pty) Ltd) v Mtiya N.O. and Others
[4]
my brother van Niekerk J stated that:
“
In
truth, Fidelity Guards is concerned only with the proposition that a
failure to review an administrative act timeously may result
in that
act acquiring the force of law (in the sense that it will not be
susceptible to review) even though the act is invalid
and
unlawful.”
[5]
[11] I align
myself with the conclusions reached in the Bombardier judgment, as
have a number of other decisions in this court,
that a certificate of
outcome has no legal significance beyond a statement that the dispute
referred to conciliation has been conciliated
and was resolved or
remained unresolved, as the case may be.
[6]
Further, in the absence of any relevant and prior jurisdictional
ruling made by a conciliating commissioner, any party to a dispute
referred to arbitration may raise any challenge to the CCMA's
jurisdiction at that stage, and the challenge must be dealt with
by
the arbitrating commissioner in terms of s 138(1).
[7]
[12] In this
matter the referral to the CCMA was premature in that the employment
relationship still existed at the date of the
referral. In
Avgold-Target Division v CCMA & Others
(2010) 31 ILJ 924
(LC) my sister Basson J considered an evidentiary version before her
which would have rendered a CCMA referral
premature:
“
[30]
Returning to the point at issue: If the respondent's version is to be
accepted (which I do not accept) that he was permanently
employed,
then the date of his dismissal will be determined with reference to s
190(1)(a) and (b) of the LRA which provides that
the date of
dismissal is the earlier of the date on which the contract of
employment terminated or the date on which the employee
left the
services of the employer. It was common cause that the contract came
to an end on 31 May 2003.
It was also common cause that the
respondent left the applicant in the middle of May 2003 which is some
weeks after the dispute
had been referred to the CCMA. On this
version the dispute was therefore referred to the CCMA before the
respondent was actually
'dismissed' as contemplated by the LRA. The
referral to the CCMA was therefore clearly premature and the CCMA did
not have jurisdiction
to conciliate (and/or arbitrate) the dispute.”
(my emphasis)
[13] In this case
too, the referral took place before a ‘dismissal’ as
contemplated in Section 191 (1) took place. Section
191 (1) of the
LRA provides:
“
191Disputes
about unfair dismissals and unfair labour practices
(1)
(a) If there is a dispute about the fairness of a dismissal, or a
dispute about an unfair labour practice, the dismissed employee
or
the employee alleging the unfair labour practice may refer the
dispute in writing to-
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii) the
Commission, if no council has jurisdiction.
(b) A referral in
terms of paragraph (a) must be made within-
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss
or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within 90 days of the date on which the employee became aware of the
act or occurrence.
[14] In all the
circumstances of this case, the CCMA did not have jurisdiction to
conciliate or arbitrate the dispute. This means
that the arbitration
award stands to be set aside. Nothing precludes the third respondent
from referring the dispute to conciliation
afresh, together with an
application for condonation. I do not consider it apposite that costs
should follow the result in this
matter and I make the following
order:
1. The award
under case number WECT14750-13 is hereby reviewed and set aside.
2. There is no
order as to costs
H.
Rabkin-Naicker
Judge
of the Labour Court
Applicant: L van
Zyl Attorneys
Third
respondent: Assreeton Smith Inc
[1]
(2008) 29 ILJ 2218 (LAC)
[2008] ZALAC 3
; ;
[2008] 9 BLLR 845
(LAC) at paras 39-40
[2]
(2010) 31 ILJ 1343 (LC) per Molahleli J
[3]
(2000) 21 ILJ 2382 (LAC)
[4]
(2010) 31 ILJ 2065 (LC)
[5]
At paragraph 9
[6]
At paragraph 12
[7]
At paragraph 15