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[2018] ZALCCT 36
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Adams v National Bargaining Council for the Road Freight and Logistics Industry and Others (C 700 / 16) [2018] ZALCCT 36 (7 September 2018)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Reportable
CASE
NO: C 700 / 16
In the matter
between:
REVON ADAMS
Applicant
and
NATIONAL BARGAINING COUNCIL FOR
THE ROAD FRIEGHT AND LOGISTICS
INDUSTRY
First Respondent
ANGELA ANDREWS
N.O.
Second Respondent
ABIES
TRANSPORT SERVICES CC
Third Respondent
Heard
:
4 September 2018
Delivered
:
7 September 2018
Summary:
Bargaining
Council arbitration proceedings – review of arbitration ruling
– jurisdictional ruling – test for review
considered –
right or wrong approach to be adopted
Referral documents –
signature of referral documents – entitlement of attorney to
sign referrals – principles
considered
Bargaining Council Rules –
rules relating to right to represent – rules applied –
attorney has no right to represent
in dismissal proceedings relating
to misconduct / incapacity – no right to sign referral document
Referral document –
consequence of defective referral – constitutes irregular
process – referral null and void
Bargaining Council arbitration
proceedings – consequence of earlier conciliation proceedings
considered – such prior
proceedings no obstacle to raising
defective referral as preliminary objection at arbitration
Review application – proper
case not made out for review – application dismissed
JUDGMENT
SNYMAN, AJ
Introduction
[1]
The
application in this instance illustrates the importance of properly
following prescribed procedures when pursuing a dismissal
dispute in
terms of the dispute resolution processes under the Labour Relations
Act (‘LRA’)
[1]
.
The fact is that these processes have been simplified, and compliance
with it is not hard. It has to follow that non-compliance
in this
context is not simply something that can be glossed over, and
consequences must follow. I will address in this judgment
what these
consequences are.
[2]
At
stake in this matter is a review application brought by the applicant
to review and set aside a jurisdictional ruling issued
by the second
respondent in her capacity as appointed arbitrator of the National
Bargaining Council for the Road Freight and Logistics
Industry
(‘NBCRFLI’), the first respondent. The application has
been brought in terms of Section 145 as read with Section
158(1)(g)
of the LRA. In terms of this jurisdictional ruling, the second
respondent determined that the NBCRFLI had no jurisdiction
to
entertain the matter, because of the applicant’s defective
dispute referrals when pursuing his unfair dismissal dispute
to the
NBCRFLI.
[3]
Arbitration
proceedings were convened before the second respondent on 24 August
2016. At the commencement of the proceedings, the
third respondent’s
representative raised a jurisdictional objection, which be dealt with
further below. The second respondent
then handed down a
jurisdictional ruling on 5 September 2016, in which the third
respondent’s jurisdictional objection was
upheld. The review
application was filed on 17 October 2016, which is within the 6(six)
weeks’ time limit as contemplated
by Section 145(1) of the LRA.
The review application is accordingly properly before this Court for
determination. I will now proceed
to consider the applicant’s
review application, starting with the setting out of the relevant
factual background.
The
relevant background
[4]
The
issue at hand in this instance has nothing to do with the merits of
the dismissal of the applicant. It only concerns the manner
in which
the dispute was prosecuted by the applicant to and in the NBCRFLI.
The factual matrix in this respect is simple, and uncontested.
[5]
The
applicant was dismissed on 10 May 2016 for misconduct in the form of
abscontion. The applicant referred an unfair dismissal
dispute based
on misconduct to the NBCRFLI on 2 June 2016. The dispute referral
document was signed by one Henry Rossouw (‘Rossouw’),
the
attorney for the applicant.
[6]
The
dispute was set down for conciliation on 4 July 2016. There is no
indication in the record whether the third respondent attended
at the
conciliation. In the founding affidavit the applicant only stated
that he personally attended at the conciliation. In the
end, the
dispute remained unresolved, and a certificate of failure to settle
was issued on that date.
[7]
The
dispute was then referred to arbitration on 22 July 2016. The
referral document specifically refers to the dispute being one
of an
unfair dismissal based on misconduct. It is again signed by Rossouw,
as attorney for the applicant.
[8]
As
touched on above, arbitration proceedings were convened on 24 August
2016. The applicant attended in person, without his attorney.
The
third respondent was represented by one Casper Geustyn (‘Geustyn’),
an employers’ organization official.
From the outset, Guestyn
raised a preliminary objection. He contended that the NBCRFLI did not
have jurisdiction to entertain the
matter, as the referral documents
were signed by someone else other than the employee, who did not have
authority to represent
the employee. As such, he contended, the
referral was fatally defective. The applicant made no submissions to
the second respondent
in this regard, and only made submissions on
the merits of his dismissal dispute.
[9]
The
second respondent, in coming to grips with the matter,
mero
motu
considered that it was possible for legal representation to be
permitted at arbitration, in respect of disputes relating to unfair
dismissal for misconduct. The second respondent found that
considering that the applicant came to arbitration without a
representative
and did not even apply to be legally represented, this
indicated that he adopted the view that legal representation was not
necessary.
The second respondent also had some regard to the merits
of the matter, and determined that it was simple and straightforward
matter
that would not necessitate the granting of legal
representation.
[10]
The
second respondent then concluded that the referral documents signed
by Rossouw were irregular, and as a result, the NBCRFLI
did not have
jurisdiction. These findings led to the current review application.
Significantly however, the second respondent did
not finally dispose
of the matter, but held that:
‘
The
employee is at liberty to refer the matter again, in a procedurally
complaint manner, to the Bargaining Council and to argue
for
condonation should he wish to proceed further with the dispute.
’
[11]
I
will now proceed to decide this review application by first setting
out the test for review.
The
test for review
[12]
This
review concerns, as said, a matter of jurisdiction. This being the
case, and on review, the standard review test as enunciated
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
would
not apply. As was said in
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[3]
:
‘…
.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise. Also, if the CCMA
made a decision that exceeds its powers in the sense that it is ultra
vires its powers, the reasonableness or otherwise of its
decision
cannot arise.’
[13]
When
deciding a review application where the issue concerns the
jurisdiction of the bargaining council to determine the dispute,
the
proper review test, where the existence of the requisite
jurisdictional fact is objectively justiciable in court, would be
whether the determination of the arbitrator was right or wrong. The
Court had the opportunity to deal with this kind of review
test in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[4]
and said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[14]
The Court in
SA
Local
Government Bargaining Council v Ally NO and A
nother
[5]
dealt
with a case where an arbitrator decided that a bargaining council did
not have jurisdiction to enforce costs owing to it
under
the provisions of its main collective agreement, which is a similar
kind of jurisdictional ruling to the matter
in
casu
,
The Court then held, with reference to the general jurisdictional
review test discussed above, as follows:
[6]
‘
There
is no reason why this same approach cannot be applied to bargaining
council arbitrations, and where the issue on review concerns
the
jurisdiction of a bargaining council arbitrator to have entertained a
particular dispute. I will therefore decide whether
the
determination of the first respondent was right or wrong, by way of a
de
novo
consideration of the justiciable facts on record, being the
applicable review test.’
[15]
As
against the above principles and test, I will now turn to deciding
the merits of the applicant’s review application.
Analysis
[16]
Dispute
resolution in the NBCRFLI is governed by a set of Rules, which Rules
to a large extent virtually mirrors the CCMA Rules.
The current
version of the NBCRFLI Rules applicable to the current dispute was
promulgated on 22 January 2015, and appeared to
coincide with the
amendment to the CCMA Rules at about the same time. These Rules
specifically prescribe how disputes must be referred
to the NBCRFLI.
[17]
Rule
6.1 prescribes who must sign documents that are served and filed in
terms of the Rules, and provides:
‘
A
document that a party must sign in terms of the Act or these rules
must be signed by the party or by a person entitled in terms
of the
Act or these rules to represent that party in the proceedings.
’
[18]
The
documents at stake in this instance are the referrals of the
applicant’s unfair dismissal dispute to the NBCRFLI for
conciliation, as well as the referral for arbitration. The Rules
specifically prescribe who must sign these documents. In
Rule
12.1, which deals with referrals for conciliation, it is provided as
follows:
‘
A
party must refer a dispute to the Council for conciliation by
delivering a properly completed Form 7:11 (“the referral
document”).
’
Rule
12.2 then in turn provides:
‘
The
referring party must - (a) sign the referral document in accordance
with rule 6 …
’
[19]
The
Rules similarly deal with referrals to arbitration. Rule 20.1
provides:
‘
A
party may request the Council to arbitrate a dispute by delivering a
document in the form of Form LRA7:13 (“the referral
document”).
’
Rule
20.2 provides:
‘
The
referring party must - (a) sign the referral document in accordance
with rule 6 …
’
[20]
Finally,
the Rules also deal with persons entitled to represent parties in
conciliation and arbitration proceedings, in Rule 27.
Firstly, and
dealing with conciliation proceedings, Rule 27.1(a) provides as
follows:
‘
In
conciliation proceedings, a party to the dispute may appear in person
or be represented only by- … (ii) any member, office
bearer or
official of that party’s registered trade union …
’
Turning
then to arbitration proceedings, this is dealt with in Rule 27.1(b),
which Rule provides:
‘
Subject
to paragraph (c), in any arbitration proceedings a party to the
dispute may appear in person or be represented only by -
(i) a legal
practitioner; or (ii) an individual entitled to represent the party
at conciliation proceedings in terms of sub-rule
(1)(a).
’
Rule
27(1)(c) in turn reads:
‘
If
the dispute being arbitrated is about the fairness of a dismissal and
a party has alleged that the reason for the dismissal relates
to the
employee’s conduct or capacity, a party is not entitled to be
represented by a legal practitioner in the proceedings
unless - …
(ii) the Commissioner concludes that it is unreasonable to expect a
party to deal with the dispute without legal
representation, after
considering - (a) the nature of the questions of law raised by the
dispute ; (b) the complexity of the dispute;
(c) the public interest;
and (d) the comparative ability of the opposing parties or their
representatives to deal with the dispute.
’
[21]
What
is clear from the above dispensation is that the applicant, as an
employee party to the dispute resolution process, is not
entitled to
be represented by an attorney in any conciliation proceedings. Then,
and considering that this is a dismissal dispute
based on alleged
misconduct, the applicant as employee party is not entitled to
represented by an attorney in arbitration proceedings,
unless it is
applied for by the employee and the arbitrator exercises a discretion
in terms of Rule 27.1(c) to allow it. In
Commission
for Conciliation, Mediation and Arbitration and Others v Law Society
of the Northern Provinces (Incorporated as the Law
Society of the
Transvaal)
[7]
the Court, in dealing with Rule 25 of the CCMA Rules, which as I have
said is virtually identical to the NBCRFLI Rules, said the
following:
[8]
‘
The
effect of these provisions is that in conciliation proceedings legal
representation is not allowed at all. The reason is obvious:
conciliation is not coercive. In arbitration proceedings, however,
legal representation is permitted on an unqualified basis except
where the dispute is concerned with the fairness of dismissals for
misconduct or incapacity. But legal representation (as opposed
to
representation by other representatives such as trade union
officials) is not excluded in the latter cases altogether and it
is
permitted in the circumstances set out
in
rule 25
(1)(c)(1)
and (2) …’
[22]
It
must also be remembered that the NBCRFLI dispute resolution centre is
an administrative tribunal, and as such, as a matter of
general
principle, there is simply no right to legal representation in such a
forum.
[9]
[23]
It
follows that, applying the above considerations, and conducting a
textual, logical and common sense reading of the NBCRFLI Rules,
[10]
the applicant’s attorney, Rossouw, was not ‘entitled’
to represent the applicant in either of the conciliation
and
arbitration proceedings.
[24]
The
dictionary definition of ‘entitled’ is ‘having the
right or permission to do something’, or the ‘enforceable
right to claim something’.
[11]
Synonyms for the word in this context are ‘qualified’ or
‘authorized’. Considering these definitions, the
applicant does not have the enforceable right to be represented by
Rossouw, who in turn would not be authorized to represent the
applicant. Simply put, Rossouw is not entitled to represent the
applicant, and as such cannot sign the dispute referral forms.
[25]
In
terms of Rule 6.1, the dispute referral forms for conciliation and
arbitration ‘must’ be signed by a party entitled
to
represent the applicant, or the applicant personally. It is
prescriptive in this regard. It must also be considered that these
referrals are not just matters of insignificant process, and in fact
have the same consequence as pleadings in other litigation.
[12]
In
Food
and Allied Workers Union on behalf of Gaoshubelwe v
Pieman’
s
Pantry (Pty) Ltd
[13]
the Court held:
‘…
The
scheme of the LRA makes a referral to conciliation a mandatory first
step in the process that may ultimately lead to adjudication.
While
conciliation may not be adjudicative in nature, it is a necessary and
mandatory part of the dispute-resolution process that
the LRA creates
and it occurs within the operations of the CCMA, which is an
independent and impartial forum. It is not possible
to activate the
adjudicative features of the CCMA without first resorting to
conciliation. It is also so inextricably linked to
the arbitration
process that the LRA envisages, as part of a continuum as well as in
terms of the connectivity in the subject-matter
of the two processes.
I believe it does an injustice to the architecture of the LRA and the
CCMA to see and characterise conciliation
as anything other than the
commencement of legal proceedings in an independent and impartial
forum. For those reasons, I would
conclude on this aspect that the
referral of disputes to the CCMA for conciliation constitutes the
service of a process commencing
legal proceedings.
’
Clearly,
this
dictum
would equally apply to referrals in dispute resolution proceedings
conducted in bargaining councils, such as the NBCRFLI.
[26]
Because
of the important legal status of these kind of referral documents,
proper compliance with the Rules regulating what constitutes
a valid
referral, is important. The failure to comply with such Rules would
make the referral irregular, and following on, the
referral would be
invalid. In dealing with the issue of the service of a referral,
[14]
which is also one of the pre-requisites of a valid referral in the
very same Rule prescribing the signature of the referral, the
Court
in
National
Union of Metalworkers of SA v Intervalve (Pty) Ltd and Others
[15]
said:
‘…
The
focal question narrows to the purpose of the service requirement in s
191(3). The objective cannot be just to let the employer
know that a
dispute, related to the dispute that affects it, is being
conciliated. It must be to put each employer party individually
on
notice that it may be liable to legal consequences if the dispute
involving it is not effectively conciliated. Those consequences
may
be severe. They may include enterprise-threatening implications:
trial proceedings, reinstatement orders, backpay and costs
orders. So
the notice must be directly targeted.
This
emerges from the provision, which explicitly names the beneficiary of
the service requirement: 'the employer'. This makes clear
that a
referral citing one employer does not embrace another, uncited,
employer. The fact that the uncited employer has informal
notice of
the referral cannot make a difference. The objectives of service are
both substantial and formal. Formal service puts
the recipient on
notice that it is liable to the consequences of enmeshment in the
ensuing legal process. This demands the directness
of an arrow. One
cannot receive notice of liability to legal process through oblique
or informal acquaintance with it.
’
[27]
In my
view, a proper and authorized signature on a referral document must
be subject to the same kind of considerations as set out
in
Intervalve
relating to service of that very same document. It is significant
that it is found in the same part of the Rules dealing with service
as well. The actual signature by the party making the referral
signifies and signals the authorization of the bringing of the
process, and then the participation in the proceedings by such
referring party. It is like a proper mandate to sue. There can be
no
doubt that signatures on such kind of documents have a critical role
to play. In
Librapac
CC v Moletsane NO and Others
[16]
the Court held:
‘
The
applicant has submitted further that, of those 16, only one has
signed the referral and that he was therefore the only employee
who
was properly part of the conciliation and properly part of the
subsequent arbitration. There is considerable force in that
submission. To have certainty about parties to a dispute resolution
mechanism, which begins with conciliation and which may potentially
end in the Labour Appeal Court, is a necessary part of the process.
It does not impose an overly technical or legalistic obstacle.
All
that is required is a clear schedule containing each person's full
names, his or her address, and a signature to record that
person's
wish to be party to the steps being taken. …
’
[28]
The
signature of a referral document by any person not entitled to do so,
is just the same as no signature at all. Such a defective
signature,
which is for all intents and purposes invalid, has no legal
consequence or significance. It is trite that unsigned pleadings
are
invalid.
[17]
[29]
This
Court has dealt with situations where referral documents have been
signed by labour consultants, who would clearly not be entitled
to
represent parties before the CCMA and bargaining councils.
In
National
Union of Metalworkers of SA v Commission for Conciliation, Mediation
and Arbitration and Others
[18]
,
the Court held as follows:
‘…
In
the case of arbitration the same right to be represented applies. In
addition, a legal practitioner, as defined, may represent
the
employee. See s 138(4) of the LRA. However, there is no right
permitting a legal practitioner to appear before the CCMA when
it
arbitrates dismissals arising from conduct and capacity. But on
application the commissioner may permit a legal practitioner
to
represent an employee. See s 140(1) of the LRA.
It
is clear that a labour consultant, who has no right of audience
before a CCMA commissioner, may not sign form LRA7.11 nor form
LRA7.13 on behalf of a dismissed employee
.’
[30]
In
Vac
Air Technology (Pty) Ltd v Metal and Engineering Industries
Bargaining Council and Others
[19]
the Court dealt
with a situation where a labour consultant signed pleadings in the
Labour Court, and said:
‘…
.
papers before the Labour Court signed by a person who does not fall
within the permitted category are null and void, and proceedings
relating thereto are also null and void.’
The
Court concluded:
[20]
‘
A
labour consultant is not permitted to represent parties in terms of
the Act. It follows that any affidavits he deposed to or any
correspondence he wrote, in the capacity of a labour consultant
representing a party, are null and void. The proceedings are also
null and void.
’
[31]
Even
though the Court in
Vac
Air
was dealing with pleadings under the Labour Court Rules, there is in
my view no reason why these same consequences should not equally
apply to invalidly signed CCMA or bargaining council referral
documents, thus rendering the same null and void. This was recognized
in
Danone
Southern Africa (Pty) Ltd and Another v Commission for Conciliation,
Mediation and Arbitration and Others
[21]
,
where the Court held:
‘…
Representation
in the context of Rule 25 does not just include appearing at the
CCMA. It includes all facets of representation,
which would include
the bringing of legal process such as the filing of applications. A
defect in this regard renders the proceedings
so brought, to be
nothing else but an irregular step.’
The
Court then specifically referred to the judgment in
Vac
Air
and concluded:
[22]
‘…
Whilst
the judgment in
Vac
Air
dealt with the Labour Court Rules, I can see no reason why these same
considerations should not equally apply to the CCMA Rules.
’
[32]
In
casu
,
it was not hard for the applicant to have simply complied with the
Rules. There was no indication or plea on his part that he
had some
or other difficulty or obstacle causing him to be unable to sign the
referral forms. There was no feasible reason for
his attorney signing
the forms instead of him. All he needed to do was just append his
signature to the referral forms. His failure
to do so rendered the
referrals to conciliation and arbitration invalid, and thus null and
void. The consequence of this failure
was aptly described in
Oosthuizen
v Imperial Logistics CC and Others
[23]
as follows:
‘
In
a line of decisions starting with
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA & others
,
this court (and following it the CCMA) has found that the failure by
the referring party personally to sign
a
referral to conciliation
constitutes a material defect which deprives the CCMA (and a
bargaining council) of the jurisdiction to hear the dispute. The
personal signature
of
a referral form
is thus a jurisdictional fact which must be established before the
CCMA or a bargaining council can exercise its jurisdiction over
the
dispute
.’
[33]
The
applicant, in argument, placed emphasis on the judgment of the Labour
Appeal Court in
ABC
Telesales v Pasmans
[24]
.
In that case,
the
conciliation referral form was completed attorneys acting on behalf
of the employee party, and an articled clerk in the employ
of the
firm signed the form. The Court accepted that this constituted
non-compliance with the Rule relating to signature, but the
Court
however also then considered the fact that after the referral had
been made, the employer and employee parties participated
in the
conciliation process and, thereafter, both also participated in the
arbitration proceedings only on the merits of the matter.
[25]
The Court held as follows:
[26]
‘…
There
is no difficulty in discerning the intention of the words in rule 5.1
at the stage when Form 7.11 is handed to the CCMA. At
that stage the
intention is clearly to provide for the CCMA to reject the form by
reason of it not having been signed by the referring
party. In this
way the possibility of an
unauthorised
referral is
avoided.
However, the referring party’s participation in the
conciliation process without objection renders the requirement
of her
signature redundant at that stage. It follows that the rule-maker
could not have intended the rule to apply once such participation
had
occurred and with it, the ratification of t
he
referral. …
’
[34]
But
what is important to consider is that the judgment in
ABC
Telesales
was to a large extent founded on the application of the judgment of
the Labour Appeal Court in
Fidelity
Guards Holdings (Pty) Ltd v
Epstein
N
O
and Others
[27]
.
In
Fidelity
Guards
,
the Court held that it was impermissible to raise any issues about
the validity of a referral to conciliation or the conciliation
proceedings, once a certificate of failure to settle was issued. On
the basis of this
ratio
,
the Court in
ABC
Telesales
held:
[28]
‘
It
follows that with respect the Labour Court in
Rustenburg
Platinum Mines Limited (Rustenburg Section) v CCMA and others
[1997]
11 BLLR 1475
(LC) erred in deciding in effect at 1479H–I that
a
referral which
was
not signed by the referring party himself remained invalid beyond the
stage of conciliation.
’
[35]
There
have been developments in the applicable jurisprudence since the
judgment in
Fidelity
Guards
.
More recently, and in
SA
Municipal Workers Union on behalf of Manentza v Ngwathe Local
Municipality and Others
[29]
the
Labour Appeal Court again considered the
ratio
in
Fidelity
Guards
,
but this time held as follows:
‘…
the
issue of a certificate of non-resolution does not found the right of
referral to arbitration or adjudication under s 191(5)
of the LRA, as
the subsection confers this right upon the lapsing of the 30-day
period contemplated in the subsection regardless
of whether
conciliation actually takes place or a certificate of non-resolution
is issued by the CCMA or the bargaining council
concerned. It follows
that neither the holding of an actual conciliation nor the issue of a
certificate of non-resolution by the
CCMA or the bargaining council
concerned, is a prerequisite for purposes of referring an unfair
dismissal or unfair labour practice
dispute to arbitration or
adjudication in terms of s 191(5)
(a)
and
(b)
of the LRA, where there has been a lapse of 30 days from the date on
which the CCMA or bargaining council received the referral
and the
dispute remains unresolved.
’
Having
so held, the Court then reasoned:
[30]
‘
The
appellant also relies on the decision of this court in
Fidelity
Guards
in support of its interpretation of s 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 a 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 the
statutory period of 30 days for an unfair dismissal
dispute in terms
of s 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
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 the
outcome, the court held, that would render
the CCMA or the bargaining
council concerned to be without jurisdiction to arbitrate.
In
arriving at this conclusion, the court appears to have impermissibly
grafted the provisions of s 135 and s 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 s 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 a
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 the referral, and
the dispute
remains unresolved
.’
The
Court ultimately concluded:
[31]
‘…
Since
the issue of a certificate of non-resolution by the CCMA or a
bargaining council concerned is not a prerequisite for a referral
to
arbitration in terms of s 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 elapse of 30 days from the date
on which the CCMA
or bargaining council received the referral, and the employee has not
sought condonation for his or her non-observance
of that timeframe.
’
[36]
Considering
that the Labour Appeal Court in
ABC
Telesales
squarely based its decision in not upholding a preliminary objection
relating to the invalidly signed referral on the
ratio
in
Fidelity
Guards
,
it follows that the judgment in
Ngwathe
Local Municipality
applies
to this judgment of the Labour Appeal Court as well. The original
invalid referral of the dispute to the NBCRFLI by the
applicant,
because of the invalid signature, cannot be cured by the fact that
conciliation proceedings were convened and a certificate
of failure
to settle was issued.
[32]
It still remains an invalid referral, open to challenge. The judgment
in
ABC
Telesales
thus cannot assist the applicant.
[37]
In
any event, the judgment in
ABC
Telesales
is distinguishable, on the facts, from the matter
in
casu
.
In
ABC
Telesales
,
the employer party fully participated in the conciliation proceedings
and in the arbitration proceedings, without ever raising
an objection
about the invalidly signed referral. Only when the arbitrator found
against the employer on the merits of the matter,
did the employer
raise this issue as a challenge to the employee seeking to make the
arbitration award an order of Court (after
the employer had withdrawn
a review application it had also brought). One has understanding why
there would be an extreme reluctance
to come to the aid of an
employer party in these kind of circumstances, which smacks of being
an afterthought created by some clever
lawyering only when a case had
been lost on the merits. But the matter
in
casu
is not such a case. The third respondent was not at conciliation.
When the third respondent attended at arbitration, and before
even
engaging on the merits of the matter, it raised a challenge
concerning the invalid referrals, leading to the ruling by the
bargaining council arbitrator herself. This is simply not the factual
scenario contemplated in
ABC
Telesales
.
[38]
Applying
the above principles and considerations to the ruling of the second
respondent, I remain unconvinced that the ruling is
wrong. The second
respondent properly considered the applicable NBCRFLI Rules, and
concluded that in terms of these Rules, Rossouw
was not entitled to
represent the applicant and was thus not entitled to sign the
referral forms, rendering the referrals ‘procedurally
irregular’ (as she called it). There can be no fault with this
reasoning.
[39]
But
the second respondent went even further. She considered that she had
a discretion in terms of Rule 27.1(c) to permit legal representation
at arbitration considering that this was an alleged unfair dismissal
for misconduct. Despite there not even being an application
to allow
legal representation before her, the second respondent considered how
she would have exercised this discretion based on
the facts in this
matter. She found that the matter was not complex and therefore in
any event, this would not be a case where
legal representation would
be allowed. In my view, this exercise was not even necessary, but it
shows that the second respondent
went beyond what she needed to do to
properly decide this matter.
[40]
The
second respondent also considered that despite the applicant’s
attorney signing the referrals, the applicant attended
at the
arbitration alone, and did not even seek to be legally represented.
Certainly, and as said, there was no application for
legal
representation to be allowed. This is in my view a very relevant
consideration. It cements the default position that the
applicant
would not be entitled to legal representation at arbitration. Surely
an arbitrator can only exercise a discretion if
actually called upon
to do so. The second respondent’s reasoning in this regard is
unassailable.
[41]
In
sum, and firstly, the conciliation referral in this instance was
invalid, because it was not signed by the applicant, but by
his
attorney, Rossouw, who was not entitled to represent him at
conciliation. Secondly, the arbitration referral was equally invalid,
because once again it was not signed by the applicant personally but
by Rossouw, who would not be entitled to represent the applicant
at
arbitration. These referral documents were thus null and void. The
third respondent properly raised these issues before engaging
on the
merits of the matter. The second respondent was thus well within her
rights to decide the objection on the basis that she
did.
[42]
Accordingly,
the second respondent’s conclusion that the NBCRFLI had no
jurisdiction to entertain this matter because of the
invalid
referrals is a correct conclusion. It is unassailable on review, and
the review application falls to be dismissed.
[43]
I
feel compelled to make some closing remarks. In the concluding part
of her award, the second respondent dispenses, despite it
not even
being necessary, some sound advice. She records that the applicant
could, despite the ruling, refer the matter to the
NBCRFLI afresh in
a ‘procedurally compliant manner’, and apply for
condonation for the late referral. This was advice
that should have
been heeded. It was certainly competent for the applicant to have
simply done this, and in my view, he would have
had a proper case for
the granting of condonation. It would have removed the necessity to
approach this Court on review, with all
the delays associated with
the same, and was the best manner in which to have his dispute dealt
with on the merits. This is an
instance where unfortunately common
sense and the heeding of some good advice did not prevail,
unfortunately to the detriment of
the applicant himself.
Conclusion
[44]
Therefore,
and having regard to what I have set out above with regard to the
merits of the applicant’s review application,
and based on the
application of the review test as I have also set out above, I
conclude that the second respondent’s jurisdictional
ruling is
unassailable. The second respondent’s ruling, therefore, must
be upheld. The result is that the applicant’s
review
application falls to be dismissed.
[45]
In
dealing with the issue of costs, the matter is unopposed, and the
issue of costs therefore does not arise.
Order
[46]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
S Snyman
Acting
Judge of the Labour Court
Appearances:
For the
Applicant:
Mr H Rossouw of ENS Africa
For
the Third Respondent:
No appearance
[1]
Act 66 of 1995.
[2]
(2007) 28
ILJ
2405 (CC).
[3]
(2008) 29
ILJ
964
(LAC) at para 101.
[4]
(2013) 34
ILJ
2662 (LC) at para 22. See also
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008)
29
ILJ
2218
(LAC) at paras 39 – 40;
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
(2012)
33
ILJ
363 (LC) at para 23;
Hickman
v Tsatsimpe NO and Others
(2012)
33
ILJ
1179 (LC) at para 10;
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others
(2013)
34
ILJ
392 (LC) at paras 5–6;
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others
(2012)
33
ILJ
1171 (LC) at para 14;
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others
(2013)
34
ILJ
1272
(LC) at para 21.
[5]
(2016)
37 ILJ 223 (LC).
[6]
Id at para 28.
[7]
(2013) 34 ILJ 2779
(SCA).
[8]
Id at para 4.
[9]
See
Hamata
and Another v Chairperson, Peninsula Technikon Internal Disciplinary
Committee and Others
(2002)
23 ILJ 1531 (SCA)
para
5
;
MEC:
Department of Finance, Economic Affairs and Tourism, Northern
Province v Mahumani
(2004)
25
ILJ
2311 (SCA)
at para 11;
Law
Society of the Northern Provinces
(
supra
)
at para 19;
Zondo
and Another v Uthukela District Municipality and Another
(2015) 36 ILJ 502 (LC) at para 27.
[10]
See
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para 18;
Bothma-Batho
Transport (Edms) Bpk v S Bothma
&
Seun
Transport
(Edms) Bpk
2014
(2) SA 494
(SCA) at para 12.
[11]
See Collins English Dictionary;
Merriam-Webster Dictionary; Vocabulary.com Dictionary.
[12]
See
Monare
v SA Tourism and Others
(2016)
37 ILJ 394 (LAC) at para 30.
[13]
(2018) 39 ILJ 1213
(CC) at para 199.
[14]
The CCMA and NBCRFLI Rules simply
reflect what is contained in Section 191(3) of the LRA in this
regard.
[15]
(2015)
36 ILJ 363 (CC) at paras 52 – 53.
[16]
(1998)
19 ILJ 1159 (LC) at para 55. See also
Candy
and Others v Coca Cola Fortune (Pty) Ltd
(2015) 36 ILJ 677 (LC) at paras 33 – 35.
[17]
Compare
Chasen
v Ritter
1992 (4) SA 323
(SE
);
Padayachee
v Naidu and Others
[2014]
JOL 31575
(KZD);
ABSA
Bank Ltd NO (in its capacity as the Trustee for the Fountainhead
Property Trust) v Barinor New Business Venture (Pty) Ltd
[2011] JOL 27800 (WCC).
[18]
(2000)
21 ILJ 1634 (LC) at paras 19 – 20. The Court was dealing
with the former Sections 138(4) and 140(1) of the
LRA, the
predecessors of the current Rule 25 of the CCMA Rules.
[19]
(2006) 27 ILJ 1733
(LC) at para 14.
[20]
Id at para 16.
[21]
[2017]
ZALCJHB 252 (30 June 2017) at para 39.
[22]
Id at para 40.
[23]
(2013)
34 ILJ 683 (LC) at para 14.
[24]
[2001]
4 BLLR 385 (LAC)
[25]
Id at para 5.
[26]
Id at para 6.
[27]
(2000)
21
ILJ
2382 (LAC)
.
[28]
Id at para 7.
[29]
(2015) 36 ILJ 2581 (LAC) at para 38.
[30]
Id at paras 42 – 43.
[31]
Id at para 44.
[32]
See
Eskom
Holdings SOC Ltd v National Union of Mineworkers obo Kyaya and
Others
[2017]
8 BLLR 797
(LC) at paras 64 – 65;
Cinqplast
Plastop (Pty) Ltd v Dunn N.O. and Others
[2016]
ZALCJHB 78 (25 January 2016) at paras 16 – 17.