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[2016] ZALCJHB 78
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Cinqplast Plastop (Pty) Ltd v Dunn NO and Others (JR1751/14) [2016] ZALCJHB 78 (25 January 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no.: JR 1751/14
In the matter between
CINQPLAST PLASTOP (PTY) LTD
Applicant
And
C DUNN
N.O
First Respondent
THE METAL ENGINEERING
INDUSTRIES
BARGAINING COUNCIL
Second Respondent
THE NATIONAL UNION OF
METALWORKERS OF SOUTH AFRICA
COMMISSIONER RAYNOLD BRACKS
Third Respondent
Fourth
Respondent
Heard:
19 November 2015
Delivered:
25 January 2016
JUDGMENT
VAN
NIEKERK J
[1] This
matter has a long history. Its roots lie in a retrenchment that took
place in 2004, almost 12 years ago. On 9 November
2003, the applicant
gave notice of a proposed restructuring to all of its hourly-paid
employees, and at that stage, contemplated
the retrenchment of
approximately 350 employees. The CCMA thereafter appointed a
facilitator in terms of s 189A (3) of the LRA.
The facilitator
convened five meetings during February and March 2004. On 31 March
2004, 72 employees were retrenched and on 30
June 2004, a further 95.
[2] In
August 2004, the third respondent (the union), together with the
Chemical, Energy, Paper, Printing, Wood and Allied Workers
Union,
filed an application in this court challenging the retrenchment of
the 95 employees dismissed on 30 June 2004. In October
2006, that
application was withdrawn. In June 2007 the unions filed a statement
of claim under case number JS 619/04, alleging
that the applicant had
failed to consult in respect of the employees dismissed in June 2004.
That matter was also withdrawn.
[3] On 27
October 2008, two years later, the union referred a dispute to the
second respondent (the bargaining council). The referral
form alleges
that the applicant unfairly dismissed the 105 employees whose names
appear in an annexure to the referral. In paragraph
3 of the referral
from, in addition to denoting that the dispute was one concerning
unfair dismissal, the union ticked the box
marked ‘other’
and recorded ‘Failure to re-employ’. The employees who
are the subject of the referral are
those retrenched in 2004. In the
space provided for a summary of the facts, the union noted ‘The
employer has failed to re-employ
some of the retrenched employees.’
The union also alleged that the applicant failed to consult with the
applicant and that
there was no rationale for the retrenchment. The
date on which the dispute arose is indicated as 22 October 2008,
which is also
denoted as the date of dismissal.
[4] At
the subsequent conciliation meeting convened by the bargaining
council, the applicant took the point that the referral had
not been
made timeously. No ruling was made by the first respondent (Dunn). On
8 December 2008, Dunn issued a certificate of outcome
to the effect
that a dispute concerning an ‘alleged failure to re-employ’
remained unresolved as at that date. The
dispute was then referred to
arbitration.
[5] On 17
April 2009, the union and the applicant concluded a pre-arbitration
minute confirming amongst other things that the applicant
had
continued to employ staff after the 2004 retrenchments, and
reflecting the names of those persons. The primary issue in dispute
was recorded as the existence or otherwise of any agreement (the
recall agreement) in terms of which the employees retrenched in
2004
would receive preference in the event of subsequent vacancies.
[6] In
August 2009, Dunn issued a directive in terms of which the union was
required to provide details of the recall agreement
on which it
relied. The union did so, stating that the agreement was entered into
between January and March 2004, during the course
of the facilitation
meetings.
[7] The
arbitration hearing proceeded over 10 days before commissioner
Gaylard. The union’s first witness testified
that the
breach of the recall agreement had arisen in March 2005 when new
employees were engaged by the applicant. The union’s
case was
that as late as October 2008, the applicant continued to refuse to
re-employ the retrenched employees.
[8] The
applicant raised a point in
limine
that the bargaining council
had no jurisdiction since the dispute had been referred more than 90
days after any alleged breach of
the agreement. On 6 October 2009,
commissioner Gaylard issued a ruling to the effect that she was not
entitled to consider the
issue of jurisdiction because a certificate
of outcome had been issued in respect of the dispute, and that
certificate had not
been set aside by this court.
[9] That
ruling was not challenged and the arbitration hearing continued. It
was finally concluded in July 2011. In the award, Gaylard
held that
the union had failed to establish the existence of the recall
agreement and dismissed the referral with no order as to
costs. The
award was the subject of an application for review under case number
JR 172/2012. The court file indicates that the
application was not
decided on the merits – there was no record of the proceedings
available and the parties were unable
to construct one. On that
basis, and that basis only, the matter was remitted to the bargaining
council for a hearing
de novo
.
[10] At
the rehearing, as part of a number of interlocutory directives issued
by the commissioner seized with the matter, the applicant
contended
that the bargaining council had no jurisdiction to arbitrate the
dispute since the dispute had not been referred to the
bargaining
council within the prescribed 90-day period. As part of its
contention, the applicant referred to correspondence placed
before
the commissioner to prove that the alleged unfair labour practice
arose in 2004. The jurisdictional point was argued on
18 June 2014.
In his ruling, issued on 8 July 2014, the fourth respondent,
commissioner Bracks, said the following:
It is
trite that the issuing of the outcome certificate has one important
consequence in that, where a dispute was referred to conciliation
out
of time and condonation was not applied for and granted, the
certificate cures the apparent defect in the dispute may be
arbitrated…
[11] In
this application, filed on 21 August 2014, the applicant seeks, to
the extent that it is necessary, to review and set aside
the
certificate of outcome on the basis that the union deliberately
misrepresented in its referral that the breach of the alleged
recall
agreement occurred in 2008, when in fact on the union’s version
any breach occurred in 2004, and that the referral
was made in 2008,
outside of the 90 day period provided for in s 191 (1) (b) (ii) of
the LRA. The applicant contends further that
as a result of the
referral not having been made within 90 days of the alleged unfair
labour practice, and in the absence of condonation,
the bargaining
council did not have jurisdiction to conciliate the dispute and to
issue the certificate of outcome.
[12]
First, there is an application before the court to join commissioner
Bracks to the proceedings. I did not understand this application
to
be opposed, and the commissioner is so joined.
[13]
Both commissioners (Gaylard and Bracks), dismissed the applicant’s
jurisdictional point on the basis of their reading
of
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO & others
[2000] 12 BLLR 274
(LAC) and in particular, the view that once a
certificate of outcome is issued, it cures any jurisdictional defect
that may have
existed on account of a late referral not accompanied
by an application for condonation. In
Bombardier
Transportation (Pty) Ltd v Mtiya
[2010]
8 BLLR 840
(LC) the court expressed the view at paragraph 15 of the
judgment that:
…
a
certificate of outcome is no more than a document issued by
commissioner stating that on a particular date, a dispute referred
to
the CCMA for conciliation remain unresolved. It does not confer
jurisdiction on the CCMA to do anything that the CCMA is not
empowered to do, nor does it preclude the CCMA from exercising any of
its statutory powers. In short, a certificate of outcome
has nothing
to do with jurisdiction. If a party wishes to challenge the CCMA’s
jurisdiction to deal with an unfair dismissal
dispute, it may do so,
whether or not a certificate of outcome has been issued. Jurisdiction
is not granted or afforded by a CCMA
a commissioner issuing a
certificate of outcome. Jurisdiction either exists as a fact or it
does not.
[14] This
approach was upheld by the Labour Appeal Court in
BMW South Africa
(Pty) Ltd v Numsa obo members
[2012] 3 BLLR 274
(LAC) where the
court said at paragraph 31 of the judgment:
The
Labour Court declined to review and set aside the CCMA certificate of
outcome citing Van Niekerk J in
Bombardier Transportation (Pty)
Ltd v Miya NO & others
[2010] 8 BLLR 840
(LC) at
paragraph 15. This approach is the correct one.
[15] In
City of Johannesburg v SALBGC & others
[2014] ZALCJHB 68,
10 February 2014), this court affirmed the approach adopted in
Bombardier
and said the following:
[6]
It is not disputed that the arbitrator rejected a submission by the
applicant that
the bargaining council lacked jurisdiction since the
referring parties had failed to comply with the time limit prescribed
by section
191 (b) (ii) of the LRA, in that the disputed had been
referred to the council later than the 90 day period prescribed by
the section.
The basis of the arbitrator’s ruling, it would
appear, was that a certificate of outcome had been issued by the
bargaining
council on 28 March 2012 and that the certificate had not
been taken on review. The arbitrator’s reasoning appears to
reflect
the view that a party is not entitled to raise preliminary
points at arbitration in the absence of a challenge to a certificate
of outcome by way of review.
[7]
It is now well-established that the existence of a certificate of
outcome does not
preclude an arbitrator from considering a
jurisdictional issue, when a jurisdictional challenge arises at
arbitration. When a jurisdictional
issue arises, an arbitrator or
commissioner is generally speaking obliged to consider the issue and
satisfy him or herself that
the bargaining council or CCMA, as the
case may be, has jurisdiction - see
Bombardier Transportation
(Pty) Ltd v Ntiya NO & others
[2010] JOL 25366
(LC),
BMW
South Africa (Pty) Ltd v NUMSA obo members
[2012] 3 BLLR 274
(LAC).
[16] More
recently, in
SAMWU v Ngwathe Local Municiplaity
[2015] 9 BLLR
894
(LAC), expressly stated that insofar as the judgment in
Fidelity
Guards
has been interpreted to mean that the issuing of a
certificate of outcome precludes any party from taking the
jurisdictional point
of the late referral, that interpretation was
wrong. The court said at paragraph 42 of the judgment (per Kathree
Setiloane AJA):
[42]
The
appellant also relies on the decision of this court in
Fidelity
Guards
in support of its interpretation of section 191 (5) of the LRA. I am
of the view that such reliance is equally misplaced because,
as will
be illustrated below, the decision is wrong.
Fidelity
Guards
concerned an appeal against a dismissal of the review application in
which, one of the grounds of contention was that the arbitrator
lacked jurisdiction to hear the dispute as the conciliation
proceedings were invalid due to the employee’s failure to apply
for condonation for the late referral of the dispute for conciliation
outside of the statutory period of 30 days for an unfair
dismissal
dispute in terms of section 191 (1) (b) (i) of the LRA. The court
held that the fact that a dispute is referred to the
CCMA or a
bargaining Council for conciliation outside of the statutory period
of 30 days and no application for condonation is
made or one is made
but no decision on it is made, would not affect the jurisdiction of
the CCMA or the bargaining Council concerned
to arbitrate the
dispute, provided the certificate of outcome has not been set aside.
It is the setting aside of the certificate
of outcome, the court
held, that would render the CCMA or the bargaining Council concerned
to be without jurisdiction to arbitrate.
[43]
In arriving at this conclusion, the court appears to have
impermissibly grafted the provisions
of sections 135 and 136 (1) (a)
and (b) of the LRA onto the referral, by an employee, of his unfair
dismissal dispute to the CCMA
for conciliation and arbitration which,
as demonstrated above, is regulated exclusively by section 191 of the
LRA. Having gone
astray in this respect, the court then, erroneously,
proceeded to link the setting aside of the certificate of outcome to
the jurisdiction
of the CCMA or bargaining Council to arbitrate an
unfair dismissal dispute. As alluded to above, the jurisdiction of
the CCMA or
bargaining council to arbitrate an unfair dismissal or
unfair labour practice dispute is not conditional upon the issue of
the
certificate of outcome, as an employee’s right of referral
to arbitration accrues on the lapse of 30 days from the date on
which
the CCMA or bargaining council received a referral, and the dispute
remains unresolved.
[44]
… Since the issue of a certificate of non-resolution by the
CCMA or a bargaining council
concerned, is not a pre-requisite for a
referral to arbitration in terms of section 191 (5) (a) of the LRA,
it cannot, in my view,
cure the lack of jurisdiction of the CCMA or a
bargaining council to arbitrate an unresolved unfair dismissal or
unfair labour
practice dispute, where such certificate is issued
after the lapse of 30 days from the date on which the CCMA or
bargaining council
received a referral, and the employee has not
sought condonation for its non-observance of that timeframe.
[17] It
follows from the above authorities that the premise on which both
commissioners Gaylard and Bracks made their jurisdictional
rulings
was fundamentally flawed and that in arriving at the decision they
did (i.e. that the certificate of outcome precluded
them from
entertaining the applicant’s jurisdictional point), they
committed an error of law and the rulings stand to be
set aside on
that basis.
[18]
In the present instance, the union was required to refer the alleged
unfair labour practice dispute to the bargaining council
within 90
days of the date on which the dispute arose. The referral was made
only in 2008. The material that served before the
commissioner
included the applicant’s affidavit in which it made reference
to correspondence that established that the alleged
unfair labour
practice arose in 2004, and not in October 2008. The affidavit made
reference to a letter from CEPPWAWU to the applicant
dated 1 April
2004, in which it was alleged that persons other than the retrenched
employees were being employed. A letter from
the union to the
applicant dated 6 April 2004 alleged that the applicant was employing
casual employees. On 2 July 2004, the union
alleged that the
applicant had employed 14 new employees. A letter addressed by the
union to the bargaining council on 21 October
2008 alleged that the
applicant had employed casual employees in or about June 2004. The
union failed to file an answering affidavit
to gainsay the
applicant’s contentions. In particular, there is no evidence
that the applicant committed any breach of the
recall agreement
during the 90-day period preceding the referral. The fourth
respondent was therefore obliged to have accepted
the applicant’s
uncontested version that any alleged breach of the recall agreement
occurred in 2004.
[19] On
this basis, it is clear that the referral of the unfair labour
practice dispute was made significantly outside of the period
provided for in s 191 (1) (b) (i). There is no explanation by the
union as to why the dispute was referred to the bargaining council
four years after the applicant was alleged to have breached the
recall agreement. Since the referral was made without any application
for condonation, it follows that the bargaining council had no
jurisdiction to conciliate the dispute, nor did it have jurisdiction
to arbitrate the matter. It also follows that the first and second
respondents had no jurisdiction to conciliate the dispute referral
by
the union, and the second respondent had no jurisdiction to arbitrate
the dispute.
[20] To
the extent that the union contends that the present application is
defective since the ruling issued by commissioner Gaylard
on 6
October 2009 remains in force, the commissioner decided no more than
that she was not entitled to consider the jurisdictional
point raised
by the applicant because a certificate of outcome had been issued and
not set aside. For the reasons reflected above,
the existence of the
certificate did not preclude the applicant from raising the
jurisdictional point that it did. In any event,
the proceedings
before Gaylard were set aside in their entirety by this court on 12
November 2013, when a
de novo
hearing was ordered.
I make
the following order:
1.
The ruling issued by the fourth respondent
on 8 July 2014 is reviewed and set aside.
2.
The ruling is substituted by the following:
‘
The
referral is dismissed for lack of jurisdiction’.
3.
There is no order as to costs.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For the
applicant: Adv. F Boda, instructed by Norton Rose Fulbright
For the
third respondent Adv. G Hulley SC, instructed by Phungo Inc.