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[2015] ZALCPE 54
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Ntshangase v Transnet National Ports Authority (P379/12) [2015] ZALCPE 54 (26 June 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not Reportable
Case no: P 379/12
In the matter between
ZAZI PROMATHEUS
NTSHANGASE
Applicant
and
TRANSNET NATIONAL
PORTS AUTHORITY
Respondent
Heard:
21 August 2014
Delivered:
26 June 2015
Summary:
When the applicant has withdrawn his dispute from the Labour Court,
his
application to refer the dispute to arbitration cannot succeed as
after the withdrawal there is no dispute capable of being transferred
before the Labour Court
JUDGMENT
LALLIE J
[1] The applicant seeks
an order referring the unfair labour practice dispute he had referred
to the Labour Court to the Transnet
Bargaining Council which I will
refer to as the bargaining council in this judgement, in terms of
section 158 (2) (a) of the Labour
Relations Act 66 of 1995 (the LRA).
The application is opposed by the respondent.
[2] The factual
background of this matter is that the applicant was employed by the
respondent as a dredging operator in its Durban
harbour. In December
2011, he responded to an advertisement for five vacant positions of
Tug Masters at the Coega Harbour in Port
Elizabeth. His application
was not successful and only two of the five positions were filled. He
felt aggrieved and filed a grievance.
He subsequently referred a
dispute to the bargaining council. In the referral form, the
applicant indicated the nature of his dispute
as an unfair labour
practice concerning promotion, demotion, probation, training and
provision of benefits. He summarised the facts
of the dispute as
follows: “I have discriminated because I am not from Eastern
Cape”. The outcome he desired was appointment
as Tug Master.
The dispute was scheduled for conciliation at the end of which a
certificate of outcome was issued. It reflects
that the dispute
concerns unfair discrimination and directed the applicant to refer
the unresolved dispute to the Labour Court.
[3] On 23 August 2012,
the applicant filed a statement of claim in which he alleged that the
dispute against the respondent raises
the issue of discrimination as
a form of an unfair labour practice. He identified section 52 (3) (a)
of the Employment Equity Act
55 of 1998 (“the EEA”) as
the piece of legislation which granted this court the necessary
jurisdiction to adjudicate
his dispute. He submitted that the
respondent discriminated against him unfairly and committed an unfair
labour practice that the
decision not to appoint him was not fair and
objective, the respondent failed to give effect to the result of the
assessment process,
discriminated against him on the basis that he
was not based in the Eastern Cape and that he ostensibly did not have
the necessary
experience to deal with big ships.
[4] The respondent raised
an exception against the statement of claim. The first ground for
exception was that this Court lacked
jurisdiction over the
applicant’s dispute because of his failure to refer a
discrimination dispute to the CCMA for conciliation
before referring
it to this Court. It added that this Court lacks jurisdiction to
adjudicate the unfair labour practice dispute
as it falls under the
jurisdiction of either the CCMA or the bargaining council. A further
ground was that the statement of claim
lacked sufficient allegations
to sustain a cause of action alternatively, it is vague and
embarrassing and that the applicant failed
to allege a valid ground
of discrimination.
[5] On 16 August 2013,
the following order was granted by agreement between the parties:
‘
1
The exception is upheld.
2
The statement of claim is struck out.
3
The applicant is granted fifteen days within which to amend his
statement of claim.
4
The Applicant to pay the costs occasioned by the bringing of the
exception’.
[6] On 22 October 2013,
the applicant filed his amended statement of claim to which the
respondent raised an exception on 27 November
2013. On 7 August 2014,
the present application was filed. Its founding affidavit is attested
to by the applicant’s attorney.
The gist of this application is
that the applicant does not intend pursuing his discrimination claim.
The only claim he is proceeding
with is unfair labour practice in
respect of the respondent’s failure to promote him. He
therefore seeks an order referring
his unfair labour practice dispute
to the bargaining council. The applicant further submitted that there
are no grounds for the
respondent to seek costs on the attorney and
client scale without giving him prior notice. Some of the grounds on
which this application
is opposed are that subsequent to the order of
16 August 2013 there was no claim before this Court and there is
therefore no claim
to be transferred to the bargaining council if
this Court lacks jurisdiction to transfer the dispute which has not
been conciliated.
[7] Of all the issues
raised, the issue of jurisdiction is dispositive of this application.
Section 157 (5) of the LRA provides
as follows:
‘
Except as
provided in section 158 (2), the Labour Court does not have
jurisdiction to adjudicate in and resolves dispute if this
Act
requires the dispute to be resolved through arbitration.’
[8]
The applicant submitted that he has withdrawn the unfair
discrimination claim against the respondent and intends pursuing the
unfair labour practice claim only. It is common cause that the unfair
labour practice dispute falls under the jurisdiction of the
bargaining council. In terms of section 157 (5) of the LRA, the
Labour Court lacks the necessary jurisdiction over the unfair labour
practice disputes. By withdrawing the unfair discrimination dispute,
the applicant removed his dispute from the jurisdiction of
the Labour
Court. The applicant submitted that an order should be granted
referring the unfair labour practice dispute to the bargaining
council. The manner in which the Labour Court may exercise the
discretion bestowed on it in section 158 (2) of the LRA is expressed
thus in
Wardlaw
v Supreme Mouldings (Pty) Ltd
[1]
:
‘
Where as a
reason for dismissal the employee has alleged a reason that falls
within s 191 (5) (b), the court provisionally assumes
jurisdiction
but, if the court later takes the view of its later becomes
“apparent” to the court that the reason for
dismissal is
one that falls under s 191 (5) (a), it then declines jurisdiction and
follows the s 158 (2) (a) or (b) route’.
[9] The above
interpretation makes it clear that not every matter which has been
erroneously referred to this Court may be referred
to arbitration in
terms of section 158 (2) (a) of the LRA. There is a duty on the
applicant to refer a dispute to the correct forum.
Section 158 (2) of
the LRA provides for those circumstances where it is not clear at the
time of the referral of the dispute that
the Labour Court lacks
jurisdiction. There was a duty on the applicant to decide whether to
refer his dispute as an unfair labour
practice or discrimination but
not both. He made his choice to refer his dispute as an unfair
discrimination dispute in terms of
the EEA. He chose to withdraw it
and there is therefore no dispute before this Court. His case falls
outside the purview of section
158 (2) (a) of the LRA. The Labour
Court may, in terms of section 157 (5) of the LRA dismiss a claim
which has been referred to
it although it falls under the
jurisdiction of the bargaining council for lack of jurisdiction. The
applicant failed to provide
grounds justifying the referral of his
dispute to arbitration living this Court with no jurisdiction to deal
with any aspect of
his dispute.
[10] I have considered
the submissions made on behalf of both parties on the issue of costs.
Considerations of the law and fairness
require that the applicant pay
the respondent’s costs. It is the applicant’s failure to
determine the correct course
of action in good time which compelled
the respondent to raise the second exception and oppose the current
application.
[11] In the premises, the
following order is made:
11.1 The
application to refer the applicant’s unfair labour practice
dispute to arbitration is dismissed with costs.
11.2
The applicant is ordered to pay the respondent’s costs of the
exceptions.
____________________________
Lallie J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Advocate Gajjar
Instructed
by:
Rushmere Noach Inc.
For
the Respondents:
Advocate Grogan
Instructed
by:
Joubert
Galpin Searle
[1]
(2007)
28
ILJ
1042 (LAC) at para 23.