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[2017] ZALCJHB 218
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SAMWU obo Members v Protrans (Pty) Ltd (JR1043/16) [2017] ZALCJHB 218 (30 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR1043/16
In
the matter between:
SAMWU
OBO 157 MEMBERS
Applicants
And
PROTRANS (PTY) LTD
Respondent
DATE
HEARD: 29 March 2017
DATE DELIVERED: 29 March 2017
DATE EDITED: 30 May 2017
EX-TEMPORE
J U D G M E N T
MOSHOANA,
AJ
: This is an application in terms of Section 145 of the Labour
Relations Act in terms of which the applicant is seeking an order
reviewing and setting aside a jurisdictional ruling of the 2
nd
respondent issued under case number RPNT2716268 and 2683 under the
auspices of the 3
rd
respondent.
In
brief the ruling is such that the Arbitrator concluded that the
Bargaining Council did not have jurisdiction to entertain the
dismissal dispute. The brief facts relating to this matter are
not necessary to be recounted suffice to mention that about
157
employees were dismissed who are members of the union SAMWU.
The reason for the dismissal is clearly set out by the employer
as
being guilty of the charges that were levelled against the employees.
Those
charges for example ranges from allegation of failure and/or refusal
to drive the route that was issued by dispatch in accordance
with the
roster and so forth. Again as I say it may not be necessary to
recount all those facts.
After
the dismissal the employees were aggrieved and referred a dispute to
the Bargaining Council for resolution. As it is
required
conciliation was attempted and the outcome was such that the dispute
remains unresolved. The matter was then referred
for
arbitration and at arbitration the issue of jurisdiction was raised
by the 1
st
respondent before me.
I
may pause and make reference to the fact that at some point there was
a condonation application for the late referral and that
condonation
was granted. Certain allegations were made in the condonation
application which created the impression that the
allegation is that
the dismissal was as a result of participation in an unprotected
strike and if that was the case on the facts
the 1
st
respondent was well entitled in law to raise the issue of the
jurisdiction before the Arbitrator and indeed the issue was raised
and debated, there is a transcript that was produced in this court
which led to the Arbitrator issuing the ruling that is under
attack.
The
applicants were unhappy with the ruling that there is no jurisdiction
and approached this court. This is one of the so-called
jurisdictional reviews. The test in relation to such
reviews is simply one of correctness i.e. whether on the objective
facts there is jurisdiction.
In
argument, one of the issues raised by Mr Memani for the applicants
was that because there was a certificate issued and that certificate
has not been set aside then jurisdiction was conferred as it were by
the Conciliator to the Arbitrator. That argument is
without
merit. The Labour Appeal Court has already overturned the
Fidelity
judgment which created an impression that once there
is a certificate jurisdiction is conferred.
I
am still of the view that a Conciliator cannot confer jurisdiction
upon an Arbitrator. The Arbitrator is duty bound to determine
his own jurisdiction.
The
other argument that was raised was the non-compliance with Rule 33.
That argument also goes to the issue of the process.
It may
well be that the process was not followed but in law the Arbitrator
is entitled to consider whether he or she has jurisdiction
to
determine a dispute and if the Arbitrator does that he or she is
acting within his or her powers and accordingly that argument
cannot
be accepted by this court.
Mr
Nguaza on behalf of the 1
st
respondent made the submission
that the applicants in their referral alleged that the reason for the
termination is that they participated
in an unprotected strike and
relying on the provisions of Section 191(1)(5)(b)(iii) he contended
that such allegations are to be
determined or dealt with by the
Labour Court. Indeed that is correct however as the authorities
had made it very clear that
it is the duty of any administrator to
determine the jurisdiction and it appears to me that what the
Arbitrator did in this matter
was simply to accept the allegation of
the employees that they were dismissed for participating in an
unprotected strike and actually
ignored what appeared to be the true
reason of the dismissal, being misconduct.
On
its own that is an irregularity but nonetheless as the court in
SARPU
has said when it comes to the issue of jurisdiction Arbitrators make
jurisdictional rulings for convenience, it is not binding
on the
court. The court would have to determine on the objective facts
whether there is jurisdiction. Mr Nguaza after
a lengthy debate
with the court conceded that on the objective facts the employees
were dismissed for misconduct and in that instance
the Bargaining
Council would then have jurisdiction.
However
he raised a complaint that if the applicants had accepted that
proposition in the correspondence that was exchanged the
matter would
not have been before court today. He conceded of course that
that goes to the issue of costs and he then submitted
that if the
court on the objective facts come to the conclusion that the
jurisdiction is that of the Bargaining Council the court
would then
have to issue a cost order against the applicants because of the
conduct that was displayed leading to the matter before
court.
Mr
Memani in response argued and made reference to certain portions of
the correspondence wherein it was mentioned that the issue
to be
determined is the merits of the charges of misconduct levelled
against the employee and that was done on the 12
th
of
August 2016.
In
the light of the submissions on the issue of costs I enquired from
both parties whether there was an ongoing relationship and
I was
advised that indeed there is an ongoing relationship. I may in
passing remark that the conduct of both representatives
did not help
the situation. Mr Ndou himself as the representative at
arbitration seem to have continued on the basis that
the employer is
actually hiding the true reason for the termination because they knew
that if they provide the true reason they
will have to comply with
certain provisions of the law.
By
way of an example if an employer has dismissed employees for
operational reasons and did not comply with Section 189 and seek
to
hide the fact that they have dismissed the employees for operational
requirements in order to avoid compliance with 189 and
simply say
that it was for misconduct that is the picture that Mr Ndou was
painting at arbitration and of course as Mr Memani has
correctly
pointed out it was not for the Arbitrator to just simply accept
that. The Arbitrator needed to look at the true
reason and in
my mind the only party to provide the true reason for termination in
a dismissal dispute is the employer. The Arbitrator
should not have
ignored what the employer says was the reason.
Therefore
I believe that as the court of equity the appropriate order in
respect of costs is one that each party to pay its own
costs.
In the result I make the following order.
ORDER
The
jurisdictional ruling issued by the 2
nd
respondent under
case number RPNT271626842683 under the auspices of the 3
rd
respondent is hereby reviewed and set aside.
It
is replaced with an order that the Bargaining Council has
jurisdiction to determine the issue of misconduct being the reason
for the dismissal of the employees.
Each
party to pay its own costs.
_____________________
G
Moshoana
Acting
Judge of the Labour Court