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[2015] ZALCPE 45
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Walter Sisulu University v Commission for Conciliation, Mediation and Arbitration and Others (P274/12) [2015] ZALCPE 45 (5 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case no: P 274/12
In
the matter between:
WALTER
SISULU
UNIVERSITY
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
First Respondent
MBULI,
M
N.O
Second Respondent
DENOSA
Third Respondent
MNYIKIPA,
NP
Fourth Respondent
Heard:
7 May 2015
Delivered:
5 November 2015
Summary:
An arbitration award based on a dispute which falls outside the
jurisdiction of the CCMA is reviewable
JUDGMENT
LALLIE,
J
[1]
This is an application to review and set aside an arbitration award
of the second respondent who I will refer to in this judgment
as the
commissioner. It is opposed by the third and fourth respondents. The
facts of this matter are briefly that in January 2011,
the applicant
offered the fourth respondent employment in the position of Clinical
Associate Teacher on a limited duration contract
of three years.
Having commenced her duties, the third respondent realised that the
applicant had already employed two Clinical
Associate Teachers who
had the same job description as hers. It was brought to her attention
that those teachers were employed
on a grade higher than her and were
receiving benefits which she had not been offered. Those benefits
were the scarce skills allowance,
rural allowance and commuted over
time. Her request to be placed in the same position was not acceded
to leading her to refer an
unfair labour practice dispute to the
first respondent (“the CCMA”). The dispute was arbitrated
by the commissioner
who issued an award in favour of the third and
fourth respondent. In this application, the applicant seeks this
court to review
and set aside the award.
[2]
At the arbitration, the parties pointed out to the commissioner facts
that were common cause and agreed not to lead oral evidence
but to
file closing arguments. Based on the information before him, the
commissioner issued an arbitration award with the following
salient
parts:
‘
20.
The failure of the respondent to offer the same salary and benefits
for the same category of employees
as Clinical Associate Teachers was
inconsistent and therefore unfair to the applicant. The applicant is
therefore entitled to all
the benefits attached to the position of
the Clinical Associate Teacher as it is enjoyed by the other two
employees employed in
this position.
22.
The respondent is ordered to pay the applicant the benefits attached
to the position of
the Clinical Associate Teacher with effect from
the 01
st
January 2011 the date when the applicant was
employed to this position. These include difference in salary to R29
836,00 per month,
rural allowance at 22%, scarce skills allowance 15%
and commuted over time.’
[3]
The applicant’s grounds for review are mainly that the
commissioner lacked jurisdiction to arbitrate the dispute before
him
as it arose as a consequence of the fourth respondent discovering
that her colleagues had been appointed at a higher scale.
The issue
before the commissioner was, therefore, the grade/scale at which the
fourth respondent was appointed and fell outside
the ambit of
section
186
(2) (a) of the
Labour Relations Act 66 of 1995
as amended (“the
LRA”) and outside the jurisdiction of the CCMA. A further
attack on the award was that the commissioner
committed a gross
irregularity and exceeded his powers by failing to consider relevant
evidence and facts including the evidence
that the fourth
respondent’s counterparts were employed at the higher scale
until the expiry of their contracts in April
2012. The gross
irregularity led him to reach an unreasonable decision. The applicant
submitted that the parties’ failure
to present a stated case or
lead evidence at the arbitration rendered the award unreasonable.
[4]
0pposing the application, the third and fourth respondent submitted
that having agreed that no oral evidence should be led,
the applicant
was precluded from raising, as a ground for review, failure to lead
evidence. They submitted that the manner in which
the commissioner
conducted the arbitration was consistent with the provisions of
section 138
of the LRA. They added that as the arbitration award had
been certified in terms of
section 143
the LRA, it had become an
order of court and not reviewable. They insisted that the award was
unassailable.
[5]
In
Tony
Gois t/a Shakespeare’s
Pub
v
Van Zy and Othersl
[1]
and
Du
Preez v LS Pressings CC
,
[2]
it was held that the purpose of
section 143
of the LRA was to enforce
an arbitration award as if it was an order of the Labour Court. It,
however, did not make arbitration
awards orders of the Labour Court.
Nothing, therefore, precluded the applicant from filing the review
application at hand. The
issue of jurisdiction is dispositive of a
matter because a decision taken without the necessary jurisdiction is
a nullity. The
CCMA is a creature of statute. It may arbitrate
disputes which fall within its jurisdiction. Its jurisdiction in the
matter before
the commissioner was limited to the issue of benefits.
Even an expansive interpretation of an unfair labour practice
excludes disputes
involving levels of remuneration. The court in
Apollo
Tyres SA (Pty) Ltd v CCMA and Others
[3]
which
the third and fourth respondents sought to rely on did not go as far
as to place disputes regarding equal remuneration levels/grades
within the purview of unfair labour practice. By making a
determination on the applicant’s failure to offer the
respondent
the same salary as other Clinical Associate Teachers,
including ordering the applicant to pay the fourth respondent the
difference
in salary to R29 836,00, the commissioner exceeded his
powers in that he determined a dispute which fell outside the ambit
of
section 186
(2) (a) of the LRA. As the dispute regarding the
fourth respondent’s job level and remuneration fell outside the
jurisdiction
of the CCMA, the award is reviewable. By determining the
issue of the fourth respondent’s job level and remuneration,
the
commissioner misconceived the dispute before him and rendered his
award reviewable. In this regard see
Herholdt
v Nedbank Ltd
[4]
[6]
Months after the award was issued the commissioner,
mero moto
,
issued a variation award in which he quantified the amount due to the
fourth respondent. The applicant submitted that the
commissioner’s conduct also rendered his award reviewable as
the amounts involved in the quantification were never placed
before
the commissioner by the parties. The third and fourth
respondent deny that the commissioner committed an irregularity
by
issuing the verification award as it is based on paragraph 22 of the
award.
[7]
The commissioner committed a gross irregularity in issuing the
verification award based on paragraph 22 of his award which includes
an amount based on the fourth respondent’s job level and
remuneration which falls outside the jurisdiction of the CCMA.
[8]
Although the issue of jurisdiction is sufficient to render the
arbitration award reviewable, I deem it necessary to add a further
issue which rendered the award reviewable. The applicant sought
to rely on
C Arends and Others v South African Local Government
Bargaining Council,
a decision of the LAC under case number
PA6/13 where it was held that failure by parties in an arbitration to
either lead oral
evidence or present a written statement of agreed
facts was grossly irregulary and rendered an award reviewable.
It was argued
on behalf of the third and fourth respondent that the
above principle did not apply in all cases and each case should be
decided
on its merits. It was further argued that the review
application at hand is an example of the exception to the rule as the
parties presented to the commissioner all relevant information.
I am not convinced by the argument. A consideration
of the case
before the commissioner in its totality reflects a need for a proper
evaluation of the dispute through oral evidence.
[9]
In the premises, the following order is made:
9.1
The arbitration award issued by the second respondent under case
number ECEL 2282 –
11 and dated 6 May 2012 is reviewed and set
aside.
9.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the second respondent.
______________
Lallie, J
Judge of the Labour Court
of South Africa
Appearances
For
the Applicant:
Advocate Grobler
Instructed
by:
Kirchmanns Inc
For
the Respondents:
Advocate Phango
Instructed
by:
Morare Thobejane Attorneys
[1]
[2003] 11 BLLR
1176
(LC) at paras 19-21.
[2]
(2013) 34 ILJ 634
(LC) at para 14.
[3]
[2013] 9 BLLR 434
(LAC).
[4]
[2013] 11 BLLR 1074
(SCA)