About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 473
|
|
Landgoed v Commission for Conciliation, Mediation and Arbitration and Others (JR2288/13) [2016] ZALCJHB 473 (19 February 2016)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Case
no: JR 2288/13
In the matter between
JP LANDGOED
Applicant
And
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND ARBITRATION
First
Respondent
HAROLD N MATSHEPE
N.O.
Second
Respondent
MAGGY
MATHOTO & 12 OTHERS
Third
to further Respondents
Heard:
17 February 2016
Delivered:
19 February 2016
JUDGMENT
VAN
NIEKERK J
[1] This
is an application to review and set aside both a default arbitration
award issued by the second respondent (to whom I shall
refer as ‘the
commissioner’) and a subsequent rescission ruling in which he
refused to rescind his award. In his default
award, the commissioner
found that the dismissal of the third to further respondents by the
applicant was substantively and procedurally
unfair. He awarded each
of them compensation in an amount equivalent to 12 months’
remuneration. In the application for rescission,
the commissioner
ruled that the applicant was in wilful default by failing to attend
the arbitration hearing, that it had no prospects
of success and that
rescission ought therefore to be refused.
[2] I
deal first with the rescission ruling. In his ruling, the
commissioner records the applicant’s concession that the notice
of set down was timeously received. After condoning the late filing
of the rescission application, the commissioner evaluated the
applicant’s reasons for its failure to appear. Broadly
speaking, these were that the owner of the applicant, a Mr Beetge,
had failed to attend because his wife had been admitted to hospital
on the day prior to the scheduled hearing and that he was required
to
stay in Pretoria in order to be present with her. The undisputed
facts to which he deposed were that his wife had been taken
for a
routine check following a previous operation to remove cancer of the
thyroid and that on 27 June 2013, the day prior to the
scheduled
hearing, she was readmitted for urgent surgery.
[3] The
commissioner goes on to say the following:
31.
The difficulty I have with the above is that the affidavit does not
indicate what steps were taken by the
owner of the applicant to
secure the services of someone else or a representative to attend to
the CCMA and to request a postponement.
32.
The affidavit does not indicate why an official from an employer’s
organisation, that represented the
applicant in the conciliation, was
no longer available. The affidavit does not indicate how far the
owner of the applicant went
to secure a representative without
success. The affidavit only indicate how he personally failed to
attend but does not show how
any other official of the applicant or a
lawyer also failed to attend to request a postponement on that day.
33.
It is my view that as the wife of the owner of applicant was admitted
to the hospital on 27\6\13 the said
owners should have delegated
someone else or a lawyer to come to the CCMA on 28\6\13 and deal with
the matter or request postponement.
34.
I do not accept his reasons are sufficient enough and I believe that
he was in wilful default on the 28\6\13.
[4] More
important for present purposes are the commissioner’s findings
in relation to the applicant’s prospects of
success. In the
affidavit filed in support of the application for rescission, Beetge
recorded that the third to further respondents
had been dismissed for
reasons relating to its operational requirements, after a
‘quite lengthy’ consultation
process and in the absence
of any reasonable alternatives to retrenchment. He submitted that
since the reason for dismissal concerned
the applicant’s
operational requirements, the CCMA had no jurisdiction since the
retrenchment affected more than one employee.
[5] The
case made out in the application for rescission was that the third to
further respondents had been dismissed for reasons
related to the
applicant’s operational requirements after following a proper
consultation process. Beetge unequivocally stated
that the third to
further respondents had been dismissed for operational reasons
consequent on an increase in minimum wages and
their failure to
accept amended terms and conditions of employment which contemplated
the reduction of working hours. The affidavit
notes that all
employees except those represented by the union of which the third to
further respondents are members accepted the
alternative conditions
on offer. In the absence of other viable alternatives open to
the applicant, their services were terminated
for operational
reasons.
[6] The
fact of any retrenchment was denied in the answering affidavit filed
by the relevant union official. His version was that
the third to
further respondents were presented with new contracts of employment
which they were ordered to sign. The result of
their refusal to do so
was their dismissal on 4 March 2013.
[7] The
commissioner found that the third to further respondents had not been
retrenched. He did so on the basis that the applicant
had failed to
file any documentation that indicated the existence of any
retrenchment process and in particular, any notice of
retrenchment as
required by s 189 of the LRA, and any termination notices or proof of
payment of severance pay. In the absence
of any retrenchment, the
commissioner concluded that the CCMA had jurisdiction to entertain
the referral made by the third to further
respondents.
[8] In
the present proceedings, the applicant appears to suggest that the
applicant did not dismiss the third to further respondents,
or that
they were dismissed by operation of law, and submits that the
commissioner committed a gross irregularity by concluding
that the
third to further respondents had been dismissed. Given the version
put up by the applicant in the rescission application,
this is
nothing less than disingenuous.
[9]
Reverting to the ruling under review, the issue before the
commissioner was not whether or not any retrenchment had taken place.
The commissioner ought to have had regard to all of the material
before him. Had he done so, he would have appreciated that what
was
immediately apparent from the papers that served before him is that
both the reason for dismissal asserted by the respondents
(a refusal
to accept a demand in respect of a matter of mutual interest) brings
the dispute outside of the CCMA’s jurisdiction.
The union
official who deposed to the affidavit opposing the application for
rescission said the following:
It
is our submission that the dismissal of the third respondent was not
related to operational requirements and no consultation
was conducted
between the third respondents and the applicant. The third respondent
been Maggie Mathoto and 12 Others was dismissed
on the 4 March 2013
after refusing to sign the new contract that the applicant intends to
implement after the new sectoral determination
and requested that the
applicant to approach the union before they sign any contract to
safeguard their employment rather than
signed without knowledge of
what they were supposed to signed, therefore the CCMA has
jurisdiction to arbitrate the matter (sic)
[10] What
the union ignores (and what the commission ignored) is that the
reason for dismissal articulated under oath in these terms
brings the
reason for dismissal within the ambit of s 187 (1) (c), a
refusal by employees to accept a demand made by their
employer in
respect of any matter of mutual interest. In such a case, an alleged
automatically unfair dismissal, only this court
has jurisdiction to
determine the dispute. That being so, it seems to me that the CCMA
was never clothed with jurisdiction to entertain
the referral made by
the third to further respondents and that for the purposes of the
rescission application, the applicant’s
prospects of success
were such that the default arbitration award ought to have been
rescinded.
[11] It
follows that if the respondents wish to pursue the dispute, they
ought to make a referral in terms of Rule 6 together with
an
application for condonation for the late referral. I have no doubt
that given the nature of these proceedings and what would
appears to
be nothing less than duplicitous conduct on the part of the
applicant, this court will be inclined to grant condonation
and
afford the third and further respondents the opportunity to have
their claim adjudicated.
[12] In
the circumstances, it is not necessary for me to consider the
application to review and set aside the default arbitration
award,
which as I have indicated, ought to have been rescinded on account of
a lack of jurisdiction to make the award.
[12] In
so far as costs are concerned, s 162 of the LRA gives the court a
broad discretion to make orders for costs according to
the
requirements of the law and fairness. In the present instance, in my
view, there ought to be no order for costs. Much of what
is content
in the papers filed by the applicant is entirely irrelevant to the
primary issue in dispute, as are the heads and supplementary
heads of
argument which seek to make out a case not articulated in the
founding affidavit. In coming to the conclusion I have,
I have
afforded the founding affidavit a generous reading. Ultimately, the
commissioner’s failure to appreciate the obvious
jurisdictional
point raised in the papers before him is not the fault of either
party and for that reason too, there should be
no order as to costs.
I make
the following order:
1.
The rescission ruling made by the second
respondent on 20 September 2013 under case number LP 2053-13 is
reviewed and set aside
and substituted by following:
‘
The
default arbitration award issued under case number
LP
2053 – 13 dated 9 July 2013 is rescinded.’
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
For the
applicant: Mr M Thompson, Thompson Attorneys
For the
third to further respondents: Union official