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[2017] ZALCJHB 517
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National Union of Metalworkers of South Africa obo Jama v Transnet Engineering Uitenhage and Others (PR 166/15) [2017] ZALCJHB 517; [2018] 3 BLLR 301 (LC) (15 December 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: PR 166/15
In the matter between:
NATIONAL
UNION METALWORKERS OF SOUTH AFRICA
Obo
MZWANDILE
JAMA
Applicant
and
TRANSNET
ENGINEERING UITENHAGE
First Respondent
COMMISSION
FOR CONCILIATION
Second
Respondent
AND
ARBITRATION
GERALDINE
MASUNUNGURE
Third
Respondent
Delivered:
1
5
December 2017
JUDGMENT
MAHOSI AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act, 66 of 1995 ("LRA") for an order to review
and set aside a jurisdictional ruling ("the ruling") issued
by the third respondent (
"
the
commissioner") dated 12th of August 2015
,
under case number ECPE 153-15 in which
she ruled that the second respondent ("the CCMA") lacked
jurisdiction to entertain
the dispute concerning the dismissal of Mr
.
Jama ("the employee") by the
first respondent.
Back
g
round
[2]
The first respondent employed the employee from March 2012 as a
welder and his salary was R13 036 per month
.
On the 12th of Dece
mbe
r
2014
,
the
employee was dismissed after being found guilty of the follo
wing
c
harges:
'Gross
insubordination:
1.
That you in your capacity as the employee of TE on 17 November 2014
at approximately 10:00 you defied a verbal reasonable and
lawful
instruction from management not .to wear your NUMSA T-shirt upon
return from the strik
e as if
is
not allowed.
2.
That you in your capacity
as
a
n
e
mployee of TE on 13 November 2014 while
signing an undertaking with Transnet
,
you tempered with
an
official document lay-out by scratching out clauses 1 and 3 of the
undertaking, certain clauses without Transnet's permission
to
do
so.
3.
Th
at in your
capacity
as an employee of TE on 26 November 2
0
14
at
ap
pr
oximately10:00
despite being warned several times, you again defied a verbal
reasonable and lawful instruction from management not
to wear your
NUMSA t-shirt upon return from the strike as it is not allowed
.
[1]
[3]
Subsequent to his dismissal, the employee referred a dismissal
dispute to the CCMA. The dispute was conciliated unsuccessfully
and,
as a result, a certificate of non-resolution was issued. On the
certificate of non-resolution, the conciliating commissioner
classified the dispute as an unfair dismissal relating to misconduct
and further indicated that the dispute could be referred to
the CCMA
for arbitration. The matter was duly referred for arbitration with
the issue in dispute being described as
"alleged
gross
insubordination,
defied
a
verbal reasonable and lawful instruction not to wear NUMSA T-shirt
upon return from strike
.
Dismissal while on legitimate
sick leave. Dismissal for strike-related undertaking
[2]
The relief sought was retrospective reinstatement.
[4]
The
matter was set down for arbitration and after hearing evidence from
both parties
,
the
commissioner issued a jurisdictional ruling in which she found that
the CCMA lacked jurisdiction to entertain the dispute. The
commissioner directed the applicants to refer the matter to the
Labour Court for adjudication
.
It
is this ruling that the applicant seeks to review
.
Arbitration
p
roceedin
g
s
and the rulin
g
[5] In her ruling, the
commissioner stated the reasons she decided to determine the CCMA's
jurisdiction. The basis for the commissioner's
decision is
encapsulated in the following passages of her award:
[3]
'3.
It is necessary to note that this matter
-w
as
set down
for
arbitration.
The
applicant referred an unfair dismissal dispute on the basis
of alleged
"Gross
insubordination in that he defied
a
reasonable and
lawful instructi
on
f
r
om
man
agement
not to wear NUMSA T-shirt
on
return from strike."
The
matter was initially sent
down on
18
May 2015
at whi
c
h
at the onset of the proceedings the arguments led had been
wi
th
reg
ard
to the
discriminatory practices of the Respondent
,
ho
wev
er
t
hey
had
been retracted by the union
confining themselves
primarily
·
to
the issue of misconduct as
the underlying reason for dismissal.
4.
Despite the numerous efforts of the parties to restrict the scope of
the dispute to s186(1) of the LRA, the applicant submitted
evidence
that the underlying reason for the dismissal was not because of gross
insubordination but because of the fact of his union
affiliation. The
applicant further submitted that the respondent had treated him
differently from other employees
.
The applicant
contends there
was
in actual fact no misconduct that took place but this was pure case
of discrimination.
5.
On this basis I now tend to the question of whether CCMA has
jurisdiction to
entertain this
dispute
.'
[6]
In her analysis, the commissioner noted that it was common cause that
the applicant was dismissed for refusing to remove a NUMSA
T-shirt
though other employees could wear their T-Shirts, that the applicant
belonged to NUMSA and that NUMSA and the respondent
had a strained
relationship. The commissioner found that the applicant's dispute
falls within the ambit of section
·
187(1)(f) on the basis of the
applicant's submission that his union affiliation was the primary
reason for his dismissal. The commissioner
further found that the
applicant pleaded that he was treated
di
ffe
re
ntly
from other employees by the respondent due to his union affiliation
.
It w
as
for
this reason that the commissioner
concluded that the CCMA lacks jurisdiction to hear the dispute
.
Dissatisfied with the ruling, the
applicant launched a review application.
Grounds
of Review
[7]
The applicant's ground of
, re
vie
w
is that the commissioner's ruling is not
justified by facts before her and further that it is not in
accordance with the law. It
is the applicant’s submissi
o
n
that the proximate cause and reason for the employee's dismissal is
the alleged breach of a workplace rule and further that the
dispute
related
to
misconduct
in terms of section 191(5)(a)(i) and not an automatically unfair
dismissal in terms of section 187(1)(f) as held by the
com
missi
oner
in her award.
[8]
The fir
st
respondent
contended that the commissioner's findings were supported by evidence
led at the arbitration hearing as the employee
testified that he was
dismissed for wearing a NUMSA T-shirt and that this was
discriminatory
.
The
test for review and
evaluation
[9]
The test for review applications based on jurisdictional error is
well established and has been stated in numerous cases of
this Court
and the
Labour Appeal Court as
correctness. In
SA Rugby Players'
Association v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v
SARPU,
[4]
the LAC held as follows:
'
..
.The
issue was simply whether, objectively speaking, the facts which would
give the CCMA jurisdiction to entertain the dispute existed.
If such
facts did not exist, the CCMA had no jurisdiction irrespective of its
finding to the contract.'
[10]
The applicant has to establish that the commissioner's decision was
objectively wrong
.
In
Fidelity
Guards Holdings (Pty) Ltd v Epstein NO and Others,
[5]
the court held as follows:
'In
my view where the power to be exercised is statutory, the answer to
the question of what the jurisdictional fact(s
)
is’(are)
which
must exist before such power can be exercised lies within the
fou
r
corn
ers
of
the statute providing for such power. Accordingly the provisions of
s
uch
statute require to be considered carefully to determine what tile
necessary jurisdictional fact(s) is (are). In the light of
th
is
I
consider It
necessary to have regard to the provisions of the Act t
o
d
etermine
what the necessary
jurisdictional fact(s) is (are) which must exist in a
ca
se
such as this one before it can be arbitrated or adjudicated in terms
of the A
ct
.'
[11]
In
this case, the applicant referred an unfair dismissal dispute related
to miscond
uct.'
The
referral
of
dismissal disputes to arbitration or adjudication is regulated b
y
S
ecti
o
n
191 of the LRA, which provides as follows
:
'(1)(a)
If there is a dispute about the fairness of a dismissal or a dispute
a
b
out
an unfair labour practice, the dismissed employee or the employee
a
lleging
the unfair labour practice may refer the dispute in writing within
to-
(i)
a council, if the parties to the dispute fall within the registered
scope of that council; or
(ii)
the Commission, if no council has jurisdiction
.
(b)
A referral in terms of paragraph (a) must be made within -
(i)
30 days of the date of a dismissal or, if it is a later date, within
30 days of the employer making a final decision to dismiss
or uphold
the dismissal;
(ii)
90 days of the date of the act or omission which allegedly
constitutes the unfair labour practice or, if it is a later date,
within
90 days of the date on which the employee became aware of the
act or occurrence.
(2)
If the employee shows good cause at any time, the council or the
Commission may permit the employee to refer the· dispute
after
the relevant time limit in subsection (1) has expired
(2A)
Subject to subsections (1) and (2), an employee whose contract of
employment is terminated by notice, may refer the dispute
to the
council or the Commission once the eml9'loyee has received that
notice.
(3)
The employee must satis
fy t
he
co
un
cil or
the Commission that a copy of the referral has been serve
d
on
the employer
(4)
The council of Commission must attempt to resolve the dispute through
conciliati
on.
(5)
If a council or a commissioner has certified that the dispute remains
unresolved, or if 30 days have expired since the council
or the
Comm
ission
received the referral and the dispute remains unresolved-
(a)
the
council or the
Commission must arbitrate the dispute
at
the request of the employee
if-
(i)
the employee has alleged that the reason for dismissal related
to
the
employee's conduct or
capacity, unless paragraph
(b)(iii) applies;
(ii)
the employee has alleged that the reason for dismissal is that the
employer made continued employment intolerable or the employer
provided the employee with substantially less favourable conditions
or circumstances at work after a transfer in terms of section
197 or
197 A, unless the employee alleges
that
the contract of employment was terminated for a reason contemplated
in section 187;
(iii)
the employee does not know the reason for dismissal; or
(iv)
the dispute concerns an unfair labour practice; or
(b)
the employee may refer the dispute to the Labour Court for
adjudication if the employee has alleged that the reason for
dismissal
is-
(i)
automatically unfair;
(ii)
based on the employer's operational requirements;
(iii)
the
employee's participation in a strike that does not comply with the
provisions of Chapter IV, or
(iv)
because the employee refused to join, was refused membership of or
was expelled from a trade union party to a closed shop agreement…’
[12]
It
is a now a set rule t
hat
the
council or the commission must attempt to resolve the dispute through
conciliation. If a council or a commissioner has certified
that the
dispute
remains unresolved, or if 30 days have expired since the council or
the commission received the referral and the dispute
remains
unresolved, the council or the commission must arbitrate the dispute
.
For
the CCMA to hate
juris
diction
to arbitrate the dispute relating to dismissal, at least the
following facts must be established:
a)
reason for dismissal
relates to the employee's conduct or capacity.
b)
the reason for dismissal is that the employer made continued
employment intolerable or the employer provided the employee with
substantially less favourable conditions or circumstances at work
after a transfer in terms of section 197 or 197A.
c)
the reason for dismissal is unknown.
d)
the dispute concerns an unfair labour practice
.
[13]
It follows that the CCMA will have jurisdiction to arbitrate the
dismissal disputes where the above listed facts are present
provided
the conciliation period has elapsed or the certificate was issued and
the referral was valid and timeous
.
In
Solid Doors (Pty) Ltd v Commissioner
Theron and Others,
[6]
the court stated that "a tribunal such as the CCMA cannot give
itself jurisdiction by wrongly finding that the state of affairs
does
exist." This was confirmed in
SA
Rugby Players Association (SARPA) and Others v SA Rugby (Ply) Ltd and
Another
[7]
where it was stated as follows:
'The
question was not whether the finding of the commissioner that there
had been a dismissal of the three players was justifiable,
rational
or reasonable. The issue was simply whether, objectively speaking,
the facts which would give the CCMA a jurisdiction
to entertain the
dispute existed. If such facts did not exist, the CCMA had no
jurisdiction irrespective of its finding to the
contrary.’
[8]
[14]
In essence, the jurisdictional facts must be in existence for the
CCMA to have jurisdiction. I will now
assess whether
the CCMA, through the
commissioner, exercised the powers provided to it by the LRA.
Error
of fact and law
[15]
It is common cause that when the applicant referred the dispute to
the CCMA, it described the dispute as being about unfair
dismissal
due to alleged miscondu
ct. Th
e
ce
rtificate
of non-resolution in respect of the conciliation also desc
ribed
th
e
disp
ute
as such. At the beginning of the arbitration hearing, the applica
nt
through its official Mr
.
Kosane, submitted the following opening
statement:
[9]
'OPENING
STATEMENT: Thank you Madam Commissioner. The applicant was dismissed
for the alleged gross insubordination in that it is
alleged
that he refused or defied a
verbal, reasonable and lawful instruction and it is the Applicant's
case that he never refused any reasonable
and lawful instruction
and
the Applicant's will further testify that he had no knowledge of the
existence of a rule or policy that gave rise to such allegation
.
Further to that he
will testify that the time of his dismissal he was on legitimate sick
leave and the company has been notified
.
He will further
testify that she had good intentions when he scratched off the clause
that he did not agree with the undertaking
of the strike
.
He will further
testify that company acted inconsistently in that regard. The
applicant will also testify that he made the request
numerous times
to request the policy that prohibits him from wearing a NUMSA T-shirt
and such was never provided to him. Applicant
will lastly
testify that he was
victimised as he was not the only one wearing NUMSA
T-shirts of an unrecognised
trade union
. The
relief sought
Madam
Commissioner is retrospectively reinstatement.’
[16]
Mr.
Kosana submitted that the only reason it
was
m
entioned
that the employee was wearing NUMSA t-shirt was that the shirt was
identified in those terms in the charges
.
In
its opening statement, the first respondent through its
representative Mr
.
Louw,
submitted that it would lead evidence to show that the employee was
sufficiently notified about the hearing, that they were
not aware
about the employee’s sick leave and that the employee refused
to comply with a rea
son
able
instruction on two occasions. Mr, Louw concluded by submitting that
the employee was not victimised and that he was singled
out for
discipline because he was the only employee who refused to remove his
NUMSA t-shirt after the strike.
[10]
Mr.
Louw further submitted that the first respondent was consistent in
applying its rules
,
as
there was a certain empl
oyee
who
was dismissed for wearing a NUMSA t-shirt
.
[11]
From
the first respondent’s perspective, the reason for the
employee's dismissal was that
h
e
refus
ed
to
comply with the first respondent's health and safety policy by
wearing non-regulation apparel.
[12]
[17]
Although the applicant referred the dismissal dispute that related to
misconduct, it also claimed the employee was victimised
as he was not
the only one who was wearing the NUMSA t-shirt. After the reference
to victimisation, the commissioner immediately
sought clarity from
the parties on
the nature of the
dispute. This is evident from the record where the commissioner
stated as follow
:
[13]
'COMMISSIONER:
Right, thanks so much the Respondent. Before I proceed, (indistinct)
for both parties, when we delve into the realm
of victimisation we
will basically delving into a discrimination dispute, so just to
understand, are you saying the dismissal is
linked to discrimination,
or are you saying it is purely a misconduct case? Why I ask is the
mote it is linked to discrimination
then it becomes AUD, which is an
Automatically Unfair Dismissal, then we talk about (indistinct) for
the record and asking on record,
since if you lead evidence on it
then I will have to make a ruling to the Labour Court, if it is a
[dramatically] unfair dismissal.
MR
LOUW
:
Madam
Commissioner, with that noted, the dispute relates to misconduct.
[18].
It is trite that the commission was not bound by the parties’
description of the dispute. The commissioner was obliged
to examine
all the facts to
ascertain
the real dispute between the parties.
[14]
Rule 22 of the Rules of
CCMA provides as follows:
'If
during the arbitration proceedings it appears that a jurisdictional
issue has not been determined
,
the Commissioner must
require the referring party to prove that the Commissioner has
jurisdiction to arbitrate the dispute’
[19]
In this case, the commissioner allowed the parties to lead their
evidence after confi
rmatio
n
from Mr. Louw that the dispute related to misconduct.
[15]
In
Wardla
w
v
S
up
reme
Moulding (Pty) Limited
[16]
the LAC held as follows:
··
'[23]
The significance of sec 191(5)(a) and (b) seems to be this. What is
contemplated by the scheme of the Act is that, if the
employee has
alleged a certain reason as the reason for dismissal and that reason
is one that falls within sec 191(S)(b) and the
Court does not at any
stage think that that reason is not the reason for dismissal, the
Court proceeds to adjudicate the dispute
and delivers a judgement.
Where as a reason for dismissal, the employee has alleged a reason
that falls within sec 191(5)(b)
,
the Court
provisionally assumes jurisdiction but, if the Court later takes the
view or it later becomes
"apparent"
to
the court that the reason
for dismissal is
one
that falls under sec
191(5)(a), it then declines jurisdiction and follows the sec
158(2)(a) or
(b)
route.
[24]
In the light of the above it seems to us that the employee's
allegation of the reason for dismissal as contemplated in sec
191(5)
is only important for the purpose of determining where the dispute
should
be
referred
after conciliation but the forum to which it is referred at that
s
tage
is
not
necessarily
the forum that has jurisdiction to finally resolve the
d
isp
ute
on
the
merits. That may depend on whether it does not later appear that th
e
r
eason for dismissal
is another one other than the one alleged by the employ
e
e
and is one that dictates that another forum has jurisdiction to
resolve the dispute on the merits. Once a dispute has been referred
to, for example, the Labour court, the Labour provisionally assumes
jurisdiction. That assumption of jurisdiction is conditional
upon it
not later becoming
"apparent"
to the Court
within the contemplatio
n
of s
ec 158(2) of the
Act that the reason for the employee's dismissal i
s
one that fall
s
within sec 191(5)(a) of the Act. We say it is provisional or
conditiona
l
because
if it later becomes "apparent" that the dispute is one that
ought to have been referred to arbitration, the Court
will decline
jurisdiction and have the dispute referred to arbitration.’
[own emphasis]
[20].
This
ap
proach
was subsequently confirmed by the Constitutional Court in
CUS
A
v Tao Ying Metal I
ndustries and
Others
[17]
where
the court stated as follows:
‘Consistent
with the objectives of the LRA, commissioners are required to
"deal
with the substantial merits of the
dispute with the minimum of legal formalities." This requires
commissioners to deal with
the substance of a dispute between the
parties. They must cut through all the claims and counter-claims and
reach for the real
dispute between the parties
.
In order to perform this task
effectively, commissioners must be allowed a significant measure of
latitude in the performance of
their functions. Thus the LRA
permits
commissioners to "conduct the arbitration in a manner that the
commissioner considers appropriate". But in doing
so,
commissioners must be guided by at least three considerations. The
first is that they must resolve the real dispute between
the parties.
Second, they must do so expeditiously
.
And, in resolving the labour dispute,
they must act fairly to all the parties as the LRA enjoins them to
do.
A
commissioner must, as the LRA requires, "deal with the
substantial merits of the dispute". This can only be done by
ascertaining the real dispute between the parties
.
In deciding what the
real dispute between the parties is, a commissioner is not
necessarily bound by what th
e
leg
al
representatives say the dispute is. The labels that parties attach to
a
dis
put
e
cannot change its underlying nature. A commissioner is required to
tak
e
all the facts into consideration including the description of the
nature of the dispute
,
the outcome requested by
the un
i
on
and
th
e
evi
dence
presented during the arbitration. What must be borne in m
in
d
is t
ha
t
there is no provision for pleadings in the arbitration process whic
h
help
s to define
disputes in civil litigation. Indeed
,
the
material that
a commissioner will have
prior to
a
hearing will consist of
standard forms which record the nature of the dispute and the desired
outcome. The informal nature of the
arbitration process permits a
commissioner to determine what the real dispute between the parties
is on a consideration of
all
the facts
. The
dispute between the parties may only emerge once all the evidence is
in.’
[18]
[Footnotes
omitted]
[21].
Mr.
Stryd
om
,
t
he
first
respondent's
operational manager, testified that
he
gave
an instructi
on
to
the
employee
to put a jacket over his t-shirt. The
employee
allegedly questioned Mr.
Strydom's
authority by asking him who he was to
gi
ve
him
such
an
instruction.
[19]
Mr
.
Strydom
further testified on
the
existence
of th
e
unifo
rm
and protective clothing policy which requires the employees to wear
the protective clothes at
all
times
.
To
demonstrate the
importance
of
the
rule,
Mr
Strydom
stated
as
follows:
'MR
STRYDOM: If you, if you are a welder and you (are) welding without an
overall jacket and gloves, (the) sparks and pieces of
melting metal
can fall on your arms. You can (get) severe burns.'
[20]
[22].
Under cross-examination, Mr Strydom stated that he had instructed a
number of employees who were wearing different kinds of
t-shirts to
put overalls over their t-shirts, because they were flame cutting.
Mr. Strydom testified that only the employee refused
to take his
instruction.
[21]
[23].
Mr. Arnold Raiden, the acting operations manager, testified that the
first respondent did not take issue with NUMSA t-shirt
but all
employees were required to wear the Transnet clothing.
[22]
Mr. Khosoni, who testified for the applicant, did not testify that
the employee was victimised
because
he was a NUMSA's member and this proposition was not put to him
during cross- examination.
[23]
[24].
The employee testified that he was
unaware
of any policy that prohibited the wearing of NUMSA t-shirt.
[24]
During the cross-examination, Mr Louw questioned the employee on the
relevance of photos that formed part of the documents submitted
at
the
beginning
of the arbitration. Mr Kosani objected on the basis that the
emp
loy
ee
knew nothing about the pictures as they
were taken after he was dismis
sed a
nd
further that he did not give evidence on the said pictures. The
commissioner dismissed the objection and allowed Mr Louw to conti
nue
w
ith cross-examination. The
cross-examination focussed on the relevanc
e
·
o
f
th
e
pictures of employees wearing other t-shirts and whether the employee
was dismissed for not wearing protective clothing or for
wearing
N
UMSA
t-shirt. The employee was
then asked the following questions:
'MR
LOUW
:
Now
,
what..
.
[Laughter]
.
Now what I also want
to determine with you Sir, is then when - when you fi-
...
These documents
were... When B1 was then introduced when you saw it, and you say you
knew the intention why it was - it was brought
here.
MR.
JAMA: I was shown the pictures and I was told that there are still
people that are wearing the-the-the t-shirts. That shows
to me that I
was not dismissed for protective clothing
.
I was wearing for...
I was dismissed for NUMSA t-shirt
,
like it's written on the
charge sheet.
MR
LOUW: And you believe that… because your evidence is this that
shows that: “I was dismissed for… I was-I
was not
dismissed for not wearing protective clothing, but for wearing a
NUMSA t-shirt”?
MR
JAMA: Yes.
Yes.
MR
LOUW: And do you
.
..
Did
..
.
Is it your evidence or do you believe then because you were
dismissed, according to
your evidence now, because you were
dismissed
for
wearing a NUMSA t-shirt
,
it is grossly
unfair?
MR
JAMA:
Yes, it is.
MR
LOUW: And you don’t
believe
that you were dismissed for not wearing or complying
with
protective
clothing.
You
don't
believe
that?
MR
JAMA: Yes, it is.
MR
LOUW:
Now
since your answer is yes Mr Jama, would you then also feel that the
Employer discriminated against you for wearing -for being
dismissed
for wearing a NUMSA t-shirt
,
whereas others
are
not
dismissed?
MR
JAMA: Yes, it
is
MR
Louw: You see, so Mr Jama can confirm that's your defence basically?
I can confirm that's your defence to say "I feel, number
one,
that I was dismissed for wearing NUMSA t-shirt, which is unfair;
number two, I was discriminated upon
"
.
So that's
your
defence?
MR
JAMA: Yes.
[25]. Immediately after the above
exchange, the commissioner made the following remarks:
'COMMISSIONER: You see,
with this
.
.
.
Let
me just interject. You see
with
this evidence, the
moment
you lead this evidence and I am not interjecting to say that the
evidence is wrong or anything like that. But the moment
an applicant
submits evidence on record that the primary reason for dismissal is
discrimination, then it becomes an AUD. Then it
goes on CCMA
jurisdiction because then it is an unfair dismissal based on
discrimination.'
MR
LOUW: Because it - it.
..
I primarily rely on
– on the real nature
of
the dispute. So if the main argument of the Applicant is: “My
real reason
for
dismissal is not because of the gross insubordination but it is
because of differential treatment based.
..
This one will be on
a listed ground. We can say Union affiliation. Then it becomes
automatically unfair dismissal.
[25]
[26].
It was at this point when Mr. Louw made a submission that the
commissioner should adjourn the arbitration hearing to allow
the
parties to argue the jurisdictional issue. The commissioner then
switched off the record and he switched it on
again
to
give
the
following ruling:
'COMMIS
SI
ONE
R:..
Gentlemen,
based on
the
evidence that
the
Applicant has just given us
on record, that he believes that the real
reason for his dismissal
is not concerning the issue
of misconduct but it is primarily in relation to the fact there’s
differential treatment between
him
and other employees, based
on
a
lis
te
d
ground, which is union affiliation and
that being
the
primary reason fo
r
d
ismissal.
Then
that means his submissions are that there's been discrimination. So
that falls under automatically unfair dismissal in terms
of
section
187
of the
Labour Relations Act. Therefore
the CCMA lacks
jurisdiction to deal with this dismissal. The matter must then be
referred to the correct forum, which is the Labour
Court. You will
have the ruling from me within the next fourteen days.
even
sooner, so that the applicant can refer the matter timeously to the
Labour Court.'
[26]
[27] Having read the record, I
agree with the applicant's submission that
drawing from the exchange
above, as the commissioner did
,
the conclusion that
the true
reason
for
the
employee's dismissal was
alleged victimisation,
flies
in
the face of the evidence
from the witnesses of both parties. The evidence before the
commissioner was that the employee was dismissed
for disobeying an
instruction and for tampering with an official form
.
By stating that he
believed that he was discnminated against, the
employee was
expressing
his opinion
.
The commissioner was not
bound by this opinion. Instead, the commissioner was required to
ascertain the real dispute between the
parties
ta
king
all the facts into consideration
,
including the
description of the nature
of
the dispute
,
the
outcome requested by the applicant and the evidence presented during
the arbitration.
[28]
In
NUMSA obo Sinuku v Powertech
Transformers,
[27]
the LAC overturned the judgment of this
Court in whi
ch it was
found
that a theme running through the employee's evidence was
tha
t
h
e had
been
victimised because he and the supervisor belonged to diffre
nt
unions. The LAC found that there is no
absolute rule that arbitrators must halt arbitration proceedings the
moment a possibility
arises that the dispute might concern a matter
that should be referred to
the Labour
Court
.
In
the above judgment, the LAC clarified the Labour Court ‘s
jurisdiction as dealt with in
Wardlaw
and stated as follows:
[20]
Wha
t
is clear from Wardlaw is that a two stage process in the a
dj
u
dication
before the Labour Court was not necessarily being advocated. Toe
Labour Court assumes jurisdiction on the basis of what
the employee
alleges the reason for the dismissal to be - but if it later becomes
'apparent' to the court that the reason for the
dismissal is a
different one and one in respect of which it does not have
jurisdiction, the Labour Court should not adjudicate
the merits of
the dispute, but allow the matter to be referred to the right forum
with jurisdiction in order for that forum to
determine the merits of
the dispute. In Wardlaw, this Court did not exclude the possibility
that the true
nature
of the dispute may only become apparent once all the evidence has
been led and the court has considered it. Generally, this
is the time
when the court will become aware of the true nature of the dispute.
However, in Wardlaw, this Court also did not exclude
the possibility
that the true nature of the dispute may also become apparent earlier,
i.e. before all the evidence is led. An example
that readily comes to
mind is if the issue of jurisdiction and the true nature of the
dispute is separated from the merits of the
dispute and raised at the
outset of the proceedings, requiring the court to determine those
issues on the evidential material available,
or presented during that
phase of the proceedings
.
[21]
There is no valid reason why the procedure t
hat
ap
pli
es
in the Labour Court
does
not also apply
in
arbitrations conduct
'
ed
in
ter
ms
of,
or
under the Act. In my view,
the court a
quo
erred insofar as
it implied that the second respondent should have stopped the
proceedings the minute when statements were made
during the
cro
ss
-examination
of Sinuko suggesting that
he was being victimised because
of
his
union
affiliation. This most certainly cannot be said to have been the
moment when the true nature
of the dispute became 'appar
ent'
.
A
t
no stage before the statement was made during the cross-exam
ina
tio
n
did e
ither the
appellant, or Sinuko, or the first (or any of the responde
nts)
allege, or suggest,
that the reason for the dismissal wa
s
victimisation,
neither did any of them raise an issue concerning the jurisdi
cti
on
of the second, or third, respondent.'
[29]
In
this case, right at the beginning of the arbitration, the
commissioner
sought clarit
y
f
rom
'
the
parties on the true nature of the dispute. It was the first
respo
nd
e
nt;
thr
ough
Mr. Louw, who confirmed that the dispute related to miscon
duc
t.
It is vital to mention that the description of the nature of the
dispute was not in dispute at the conciliation and arbitration
hearings. In addition, both parties did not raise the issue of
jurisdiction. It was only after the employee's cross-examination
that
Mr. Louw requested that the matter be adjourned for the parties to
argue the jurisdictional issue.
[30]
It is my view that there is merit in the applicant's submission that
the first respondent acted opportunistically by seizing
on the
employee's opinion to claim that the CCMA lacked jurisdiction. It is
clear from the first respondent's evidence that had
the applicant
referred the dispute to the Labour Court, as
directed
by the commissioner, the first respondent would dispute that it
victimised the employee. This could result in the employee
having no
choice but to shop from one forum to the other for his dispute to be
resolved, resulting in an outcome that defeats the
purpose of the
LRA.
[31]
The applicant submitted that its claim that the employee was
dismissed for wearing a NUMSA T-shirt while no disciplinary action
was taken against members of other unions, could serve as a basis for
the contention that the first respondent had applied discipline
selectively and inconsistently. This is a fair supposition. The
commissioner attached more significance in the employee
'
s
reference to victimisation and in so doing h
e
c
o
mm
itted
an error. It is apparent that the employee was not merely dismissed
for wearing a NUMSA T-shirt
.
The
reason for his dismissal was that he twice refused to take an
instruction to change into his protective clothing.
[32]
The applicant further submitted that the com
mission
er
erred by assuming that the claim for victimisation brought the
dispute within the scope of section 187(1)(f) and section
191(5)
(b){I)
b
ecause
the wearing of union apparel is not in itself a right contemplate
d
by sectio
n 5 of the LRA. In his
analysis, the commissioner found that the e
mp
loyee's
dismissal falls within the ambit of section 187(1)(f). The basis for
his finding was the applicant's submission that the
employee's union
affiliation was the primary reason for his dismissal and further that
it resulted in him being treated differently
from other employees
.
[33]
Section 187
(1)(f)
provides
that a dismissal is automatically unfair if an employer. in
dismissing the employee, acts contrary to section 5 of the
LRA
or.
if t
he
reason for dismissal is that the
employer unfairly discriminated agai
nst
an employee, directly or indirectly
,
on any arbitrary ground, including, but
not limited to race, gender, sex, ethnic or social origin, colour,
sexual orientation, age,
disability, religion, conscience, belief,
political opinion, culture, language, marital status or family
responsibility. Section
5 of the LRA provides as follows:
'5.
Protection of employees and persons seeking employment
(1).
No person may discriminate against an employee for exercising any
right conferred by this Act.
(2).
Without limiting the general protection conferred (1), no person may
do, or threaten to do, any of the following -
(a)
require an employee or a person seeking employment
(i)
not to be a member of a trade union or workplace forum;
(ii)
not to become member of a trad
e u
nion
or workplace forum; or
(b)
prevent an employe
e o
r
a person seeking employment from
exercising any rig
ht
conferred by this
Act or from
participating in any proceedings in terms of this Act; or
(c)
prejudice an employee or a person seeking employment becau
se
o
f past, present or anticipated-
(i)
m
em
bership
of
a
trade union
or workplace forum;
(ii)
participation in forming a
trade union or federation of trade unions or establishing a workplace
forum
(iii)
participation in the lawful
activities of a trade union, federation of trade unions or workplace
forum;
(iv)
failure or refusal to do something that an employer may not lawfully
permit or require an employee to do;
(v)
disclosure of information that the employee is lawfully entitled
required to give to another person;
(vi)
exercise of any right conferred by this Act; or
(vii)
participation in any proceedings in terms of this Act.
(3).
No person may advantage, or promise to advantage, an employee or a
person seeking employment in exchange for that person not
exercising
any right conferred by this Act or not participating in any
proceedings in terms of this Act. However, nothing in this
section
precludes the parties to a dispute from concluding an agreement to
settle that dispute.
(4).
A provision in any contract, whether entered into before or after the
commencement of this Act, that directly or indirectly
contradicts or
limits any provision of section 4, or this section, is invalid unless
the contractual provision is permitted by
this Act.'
[34]
The employee's refusal to
obey a reasonable and law instruction is an act of insubordination.
Similarly, an authorised alteration
of an official document is an act
of misconduct that has nothing to do with union affiliation. It is
evident from the record that
the employee was not dismissed for
wearing a NUMSA t-shirt or for participating in th
e
activities of the
union. There is further no evidence that the employee was
sing
led
o
ut
for dismissal solely because he was a union member. It is clear from
the record that none of the acts prescribed by section 5
applies in
this case This matter could, therefore, not have been brought within
the scope of this section.
[35]
Although
the word victimisation was mentioned by the applicant, the
commissio
ner
should
have
established whether the facts which would give the CCMA jur
isdicti
o
n'
t
o
entertain the dispute existed. The commissioner should not have
stopped the proceedings after the employee gave his opinion during
cross-examination. In this case, the true nature of the dispute
became
"app
ar
ent
"
at
the beginning of the arbitration hearing when the parties both
confi
rm
ed
to the commissioner that the dispute related to a dismissal for an
alleged misconduct, not during the employee's cross-examination.
As
such, the commissioner erred in failing to ascertain the true nature
of the dispute before her and in finding that the CCMA
lacked
jurisdiction to arbitrate the employee's dismissal
dispute
.
[36]
In view of the fact that there was no decision made on the merits of
the dismissal dispute, it is appropriate to remit the
matter to the
second
respondent to be heard by a
commissioner other than the third respondent to determine whether the
employee
'
s
dismissal was substantively and procedurally unfair
.
[28]
I have considered the issue of costs and I am of the opinion that the
requirement of fairness dictates that there should be no
order as to
costs.
Order
[37]
In the premise, I make the
following order:
a). The jurisdictional ruling
issued by the third respondent ("the commissioner") dated
12 August 2015
,
under case
,
number ECPE 153-15
is reviewed and
set
aside.
b).
The second respondent is directed to set down the unfair dismissal
dispute referred by the applicant r arbitration to be heard
by a
commissioner other than the third respondent to determine whether or
not the dismissal of the employee was fair.
c.)
There is no order as to costs.
Mahosi
AJ
Acting Judge of the Labour Court
A
pp
earances
:
For
the Applicant:: Advocate
J
.
G
Grogan
Instructed
by: Gray
Moodliar Attorneys
For
the Respondent: Advocate Msizi
Instructed
by:
Maserumule
Inc
[1]
Index-Record (Part 2), Arbitration Bundle, page 145.
[2]
Index-Record (Part1), Arbitration Bundle page 11.
[3]
Index: Pleadings pages 10-11.
[4]
[2008] ZALAC 3
;
[2008] 9 BLLR 845
(LAC) at para 41.
[5]
[2000] 12 BLLR 1389
(LAC) at para 7.
[6]
(2004) 25 ILJ 2337 (LAC) at para 29.
[7]
[2008] 9 BLLR 845 (LAC).
[8]
At para 33
[9]
Page 5 of the transcribed record, line 5 -24
[10]
Transcript pages 201-21
[11]
Page 6 - 7 of the transcribed record,
[12]
Transcript 137 -138
[13]
Page 7 of the transcribed record, line 3-19
[14]
Zeuna-Starker BOP (Pty) Ltd v NUMSA
[1998] 11 BLLR 1110
(LAC) at
para 6.
[15]
Page 7 of the transcribed record, line 15 -16
[16]
2007] 6 BLLR 487 (LAC).
[17]
[2008] ZACC 15
;
2009 (1) BCLR 1
(CC).
[18]
At para 64-65.
[19]
Transcript page 220 line 19-25
[20]
Transcript page 226 line 4-6
[21]
Transcript page 338 line 14 to page 339 line 1
[22]
Transcript page 414 line 16-24
[23]
Commissioner's typed handwritten notes at pages 78-90
[24]
Commissioner's typed handwritten notes at pages 98
[25]
Transcribed record vol. 2 page 22 line 5-21.
[26]
Transcribed record vol. 2 page 23 line 17 to page 24 line 1-7.
[27]
[2014] 2 BLLR 133 (LAC).
[28]
See
Builders Warehouse (Pfy) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(PA 1/14)
[2015] ZALAC 13
(5 May 2015) at para 20.