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[2018] ZALCJHB 156
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Xoli v Commission for Conciliation, Mediation and Arbitration and Others (JR1493/16) [2018] ZALCJHB 156 (19 April 2018)
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
Case no: JR 1493/16
In
the matter between:
XABISO MSIMELELO
LUTHANDO
XOLI
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
TSHEPO MASHIGO
(
N.O.
)
Second
Respondent
TELKOM SA SOC LTD
Third
Respondent
Heard
:
02 June 2017
Delivered
:
19 April 2018
Summary:
(Jurisdictional ruling-complaint of reduction in remuneration
contrary to terms of employment – claiming
falling within ambit
of unfair labour practice concerning demotion even if contractual
remedy might also exist)
JUDGMENT
LAGRANGE
J
Background
[1]
This application was enrolled for a pre-enrolment hearing on 2 June
2017. After hearing the applicant and the respondent, it
was agreed
that the matter could be determined without being re-enrolled subject
to the applicant filing any supplementary heads
of argument by 9 June
2017.
[2]
Subsequently, the applicant did file supplementary heads of argument.
For reasons which are not entirely clear these were only
filed in
April 2018, though it appears he may have attempted to file them
earlier. Be that as it may, the file was only been placed
before me
again on 16 April 2018.
[3]
The applicant applied to review a jurisdictional ruling of the second
respondent (‘the arbitrator’) which held that
the dispute
concerned remuneration and not an unfair labour practice and
therefore the CCMA did not have jurisdiction.
Review
application
[4]
A review of
a jurisdictional ruling is essentially a
de
novo
determination of whether or not the arbitrator was correct, based on
the evidence before the arbitrator.
[1]
Accordingly, the arbitrator’s reasoning as such is not being
scrutinised for reasonableness, though it obviously has a bearing
on
the merits of the jurisdictional claim.
[5]
The applicant claims that he was unfairly demoted because he had been
employed on 4 June 2010 in an operational specialist post
but was
remunerated at a rate one level below the rate he should have been
paid, namely, OP1 instead of OS. The applicant only
raised this
alleged discrepancy in November 2015, when he claims he first became
aware of it.
[6]
The arbitrator held that his position remained unchanged since his
appointment and that neither his remuneration, responsibilities
or
status had been materially reduced during his employment.
Accordingly, the applicant had neither been demoted nor did his
dispute
concern promotion because that would require him to have
applied for a higher graded position.
[7]
The applicant contends that the arbitrator contradicted himself in
finding that his dispute did not concern demotion while acknowledging
that the dispute concerned remuneration, because the concept of
demotion included a dispute over remuneration. In his initial heads
of argument, the applicant contended that his dispute was clearly a
rights dispute flowing from his employment contract. He characterised
it thus:
“
As
per paragraph 7 of the award the Applicants dispute is that the Third
Respondent failed to remunerate the applicant at OS grade
as per the
employment contract and allocate work equivalent to an OS grade,
instead the work was allocated and OP 1 grade and the
remuneration
was also linked to and OP 1 grade.”
In
essence, the applicant contends that his dispute was that, from the
commencement of his appointment, he was neither given the
responsibilities in accordance with the post he was employed in, nor,
was he paid commensurate with the responsibilities he was
supposed to
perform.
[8]
At the arbitration hearing, the applicant intended to lead evidence
regarding his grading and remuneration. The only evidence
that was
tendered, in the course of somewhat informal preliminary discussion
with the arbitrator was his contract of employment.
Although the
contract appears to have been omitted from the bundle of documents
forming part of the record, it is common cause
that he was appointed
at an OS grade and remained on that grade until he left the third
respondent’s employment. The applicant’s
contention was
that, he was not remunerated in accordance with the contract but was
in effect downgraded. The respondent’s
representative also made
representations without leading any evidence. The thrust of those
submissions was that the applicant’s
case was that, he was
effectively seeking promotion in relation to the position he was
appointed to.
[9]
It is quite possible that the applicant could have simply sued on the
basis of his contract of employment, and indeed the applicant
appears
to acknowledge that much. However, the mere fact that he might have a
contractual claim to obtain similar relief does not
mean he could not
bring his claim within the ambit of an unfair labour practice as
defined in
section 186(2)(a)
of the
Labour Relations Act 66 of 1995
.
In effect, what the applicant is claiming is that he was engaged on
in a post with a particular rate of pay, but after his appointment
was remunerated at a lower level, which amounted to an alteration of
his actual status after his appointment. This much is clear
even in
the absence of having sight of the contract of employment. I do not
see why such a complaint cannot be construed as a complaint
about a
demotion, whatever other implications it might have. Accordingly, I
am satisfied that the arbitrator did indeed have jurisdiction
to deal
with the dispute and should not have dismissed it as brusquely as he
did. In reaching this conclusion, I make no finding
as to what
portion of the unfair labour practice claim dating back to 2010 can
be pursued, given that the unfair labour practice
claim appears to
have only been launched in 2016.
Order
[1]
The jurisdictional ruling of the second respondent dated 6 July 2016
under case number GATW5564-16
is reviewed and set aside.
[2]
The jurisdictional ruling is substituted with a ruling that the first
respondent does have
jurisdiction to determine the unfair labour
practice claim of the applicant in terms of
section 186(2)(a)
of the
Labour Relations Act, 66 of 1995
.
[3]
The applicant’s unfair labour practice claim is remitted back
to the first respondent
for an arbitration hearing before an
arbitrator other than the second respondent.
[4]
No order is made as to costs.
_____________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
In
person
THIRD
RESPONDENT:
N
Mbuyisa of Maseremule Inc.
[1]
Qibe v Joy Global Africa
(Pty) Ltd; In re: Joy Global Africa (Pty) Ltd v CCMA and others
[2015] 4 BLLR 415
(LAC)
at 417-8:
“
[5]
The decision of a CCMA Commissioner relating to the question of its
jurisdiction is, consequently, a preliminary matter that
may be set
aside by the Labour Court on review. The question as to whether the
CCMA has jurisdiction is contingent upon the existence
of certain
objectively pre-determined conditions as set out in the LRA, from
which it derives its existence. In order for a party
to succeed in a
challenge to the jurisdiction of the CCMA on review, it is required
to demonstrate objectively that the jurisdictional
facts necessary
for the exercise of the CCMA's powers are absent. In determining, on
review, whether the CCMA had jurisdiction
to deal with a dispute,
the Labour Court must determine the issue de novo.” (footnotes
omitted)