About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 146
|
|
National Union of Metal Workers of SA and Another v BMW (South Africa) (Pty) Ltd (JS740/18) [2019] ZALCJHB 146; (2019) 40 ILJ 1818 (LC) (19 February 2019)
the
labour court of South Africa, johannesburg
judgment
Reportable
CASE
NO: JS 740/18
In the matter between:
NATIONAL UNION OF
METAL
WORKERS
OF SA
First
Applicant
FRANCIS
MAGDALENA
KING Second
Applicant
and
BMW
(SOUTH AFRICA) (PTY) LTD
Respondent
Heard:
15 February 2019
Judgment
delivered: 19 February 2019
JUDGMENT
VAN
NIEKERK J
[1]
This dispute concerns what is alleged to be an automatically unfair
dismissal for
reasons that amount to discrimination on the grounds of
age. The dispute was referred to the CCMA for conciliation on 15
February
2018. For reasons that are not apparent, the conciliation
meeting was held only on 13 July 2018, when a certificate of outcome
was issued by the commissioner recording that the dispute remained
unresolved. On 11 October 2018, the applicants referred a dispute
to
this court for adjudication.
[2]
The respondent has filed a special plea, contending that the dispute
was referred
to this court out of time. The applicant contends that
the dispute was referred timeously; alternatively, that any late
referral
that is found to exist should be condoned.
[3]
Section 191 of the LRA regulates the resolution of disputes about
dismissals that
are alleged to be unfair. Where the CCMA has
jurisdiction (as it does in the present instance), the dispute must
be referred to
the CCMA within 30 days of the date of dismissal. In
the present instance, the referral was made within that time limit.
Subsection
(4) requires the CCMA to attempt to resolve the dispute
through conciliation. Subsection (5) reads as follows:
(5) If a
council
or a commissioner has certified that the
dispute
remains unresolved, or if 30 days or any further period as agreed
between the parties have expired since the
council
or the
Commission 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
is
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 197A, 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
employees
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.
[4]
Subsection (11) (a) reads as follows:
(11) (a) The referral, in
terms of subsection (5)(b), of a dispute to the Labour Court for
adjudication, must be made within 90
days after the council or (as
the case may on which the CCMA received the referral, although
this period can be extended
by be) the commissioner as certified that
the dispute remains unresolved.
[5]
Section 135 provides that when a dispute is referred to the CCMA, the
CCMA must appoint
a commissioner to attempt to resolve the dispute
through mediation. The appointed commissioner must do so within 30
days of the
date of referral, although this period can be extended by
agreement.
[6]
The referral of disputes to arbitration is regulated by s 136. That
section provides,
amongst other things, that the CCMA must appoint a
commissioner to arbitrate a dispute if the Act requires the dispute
to be arbitrated,
and if the commissioner has issued a certificate
stating that the dispute cannot be resolved, and if within 90 days
after the date
on which the certificate is issued, any party to the
dispute has requested that the dispute be resolved through
arbitration.
[7]
NUM v Hernic Exploration (Pty) Ltd
[2003] 4 BLLR 319
(LAC)
concerned a dispute about a dismissal for operational requirements
(and thus justiciable by this court) that was referred
to
conciliation on 16 December 1998. The 30-day period expired on 15
January 1999. A certificate of outcome was issued only on
18 February
1999, more than a month later. The dispute was then referred to this
court by way of a statement of case on 28 April
1999, inside the
90-day period calculated from the date of the certificate but after
the expiry of the 30-day period. The court
said the following in
respect a cross-appeal against this court’s dismissal of a
point in
limine
to the effect that the referral was out of
time:
[44] In this case
the CCMA received the referral of the dispute for conciliation on 16
December 1998. The 30-day period within
which the CCMA was required
to conciliate the dispute expired on 15 January 1999. The respondent
did not attend the conciliation
meeting. On 18 February 1999 the
Commissioner certified that the dispute remained unresolved. No
agreement had been reached between
the parties to extend the period
of 30 days. Section 191(5) (b) makes provision for the circumstances
in which a dismissal dispute
is required to be referred to the Labour
Court for adjudication. Section 191(11) (a) reads:
"The referral, in
terms of subsection (5) (b), of the dispute to the Labour Court for
adjudication, must be made within 90
days after the council or (as
the case may be) the commissioner has certified that the dispute
remains unresolved."
[45] On behalf of
the respondent it was contended that a commissioner is required to
certify that the dispute remains unresolved
on or before the 30th day
(or on or before the last day of the extended period where the 30-day
period has been extended) and that
he is not entitled to so certify
once the 30-day period or the extended period (where there has been
an extension) has expired.
It was submitted that, where he so
certifies outside the 30-day period or the extended period, the
statutory 90 days within which
the dispute must be referred to the
Labour Court runs from the expiry of the 30-day period and not from
the date when or after
the commissioner certifies or has certified
that the dispute remains unresolved. I am unable to agree with this
contention. Section
191(11)(a) is clear in its provision that the
referral of a dismissal dispute to the Labour Court for adjudication
in terms of
section 191(5)(b) must be made within 90 days after the
council or the Commissioner "has certified that the dispute
remains
unresolved." In any event section 191 which deals with
the referral of dismissal disputes to conciliation, arbitration and
adjudication does not anywhere provide for such disputes to be
referred to the Labour Court for adjudication within 90 days from
the
expiry of the 30-day period or any extended period.
[46] If the legal
position is that, once the 30-day period or the extended period, if
there has been an extension, has expired,
the Commissioner has no
power to certify that the dispute remains unresolved, but a
commissioner certifies after the expiry of
that period, then the
position would be that, until the certificate has been set aside by a
court of competent jurisdiction, it
stands and must be treated as
valid and all concerned can act upon it. (
Fidelity Guards Holdings
(
Pty
)
Ltd v Epstein NO & others
(2000) 21
ILJ
2382 (LAC)). The provisions of section 191(11) (a) would apply as
soon as the Commissioner has certified that the dispute remains
unresolved.
[47] Accordingly,
the cross-appeal must fail.
[8]
The applicant submits that the present case is on all fours with
Hernic
, and that in circumstances where the referral was made
on the 88
th
day after the certificate was issued, the
referral was in time and no condonation is necessary.
[9]
The respondent relies on
SAMWU v Ngwathe Local Municipality and
others
(2015) 36
ILJ
2581 (LAC). In that case, the
employee alleged that he had been unfairly dismissed and referred a
dispute to the bargaining council
on 10 February 2003. The referral
was made within the 30-day period prescribed by s 191 (1) (b) (i).
Instead of issuing a certificate
of outcome, the council erroneously
enrolled the matter for arbitration on 1 December 2003. A
certificate of outcome was
issued only on 15 April 2004. The dispute
was referred to arbitration on 24 June 2004. The respondent employer
raised a point in
limine
to the effect that the dispute had
been referred out of time. The arbitrator held that there was
no need to apply for condonation
since the certificate of outcome had
been issued 15 April 2004, and the referral made within 90 days of
that date. This court,
on review, held that the arbitrator had no
jurisdiction to entertain the dispute because it had been referred
more than 90 days
after the lapse of the 30-day period referred to in
s 191 (5) (a). The lapse of the 30-day period was the earlier event,
and the
90-day limit was to be calculated from that date, and not the
later date of the issuing of the certificate of outcome. The LAC
dismissed an appeal against that ruling. The court framed the issue
as follows:
[23] The
jurisdictional question in this appeal turns on the interpretation of
section 191(5) of the LRA. The appellant contends
for a disjunctive
interpretation of section 191(5) by virtue of the presence of the
conjunctive "or" in the subsection.
The appellant submits
that read disjunctively, section 191(5) of the LRA gives the employee
an election or choice to speed up the
process by referring the
dispute to arbitration after the expiry of the 30-day period,
contemplated in the subsection, or wait
for conciliation to take
place and for a certificate to be issued.
[9]
The court rejected this submission, and held:
[28] I am unable to
agree with the interpretation of section 191(5) of the LRA which the
appellant contends for. Although the
presence of the conjunctive "or"
in section 191(5) of the LRA calls for a disjunctive reading of the
provision, I disagree
that it gives an employee an election to speed
up the process by referring the dispute to arbitration on the expiry
of the 30-day
period contemplated in the subsection, or wait for
conciliation to take place and for a certificate to be issued. On a
proper interpretation,
section 191(5) of the LRA entitles an employee
to refer an unresolved unfair dismissal or unfair labour practice
dispute for arbitration
to the CCMA or a bargaining council, in terms
of subsection (a) thereof, or for adjudication to the Labour Court,
in terms of subsection
(b) thereof, upon the occurrence of either of
two events: the issue of a certificate of non-resolution of the
dispute or the expiry
of the 30-day period from either the CCMA's or
the bargaining council's receipt of the referral. The effect of this
interpretation
is that the occurrence of either of these two events
entitles an employee to request the bargaining council concerned or
the CCMA
to arbitrate the dispute in terms of section 191(5)(a) of
the LRA or to refer the dispute to the Labour Court for adjudication
in terms of section 191(5)(b) thereof…
And
[45] Whilst
the issue of a certificate of outcome by a Commissioner of the CCMA
or bargaining
council may found the right of referral of an unfair
dismissal or unfair labour practice dispute to
arbitration or
adjudication prior to the lapse of the 30-day period contemplated in
section 191(5) of the LRA, as the right of
referral accrues on the
issue of such certificate and is, consequently, a prerequisite for a
referral to arbitration or adjudication
in those circumstances only,
the subsection does not impose an obligation on a Commissioner of the
CCMA or a bargaining council
to issue a certificate of outcome on the
lapse of 30 days from the date on which the CCMA or bargaining
council received the referral,
and the dispute remains unresolved.
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 section 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 its non-observance of that time frame.
[46] It is thus
evident from the general scheme of section 191(5) of LRA that either
of the two events: the issue of a certificate
of non-resolution by a
Commissioner of the CCMA or a bargaining council or the expiry of 30
days from the date on which the CCMA
or bargaining council received
the referral and the dispute remains unresolved, entitles an employee
to request arbitration or
adjudication. Section 191 of the LRA is,
however, silent, on the time period within which the referral to
arbitration is to be
made from the date of the happening of either of
the two events referred to in subsection (5) of the LRA. Since
section 191 of
the LRA does not prescribe the specific time period
within which an unfair dismissal or unfair labour practice is to be
referred
to arbitration in terms of subsection (5)(a) of the LRA, the
dismissed employee or the employee alleging an unfair labour practice
must refer such dispute to arbitration within a reasonable period of
time….
[49] The appellant
referred his unfair dismissal dispute to the bargaining council for
conciliation on or about 10 February
2003. In terms of section 191(5)
of the LRA, he acquired the right to refer his unfair dismissal
dispute to arbitration on 12 March
2003 upon the expiry of the 30-day
period contemplated in the subsection. The appellant, however,
elected not to refer the dispute
to arbitration at that stage, but
rather to await the outcome of the conciliation process (which ensued
on 3 April 2003) and the
issue of a certificate of outcome following
thereupon. In the event, the certificate of non-resolution was only
issued on 15 April
2004, a full year after the conciliation took
place, following which the appellant referred the matter to
arbitration on 24 June
2004, being more than 13 months after he
acquired the right to refer the dispute to arbitration (on 12 March
2003), upon expiry
of the 30-day period contemplated in the
subsection. Thus, in so far as he chose to await the outcome of the
conciliation process
and the issue of a certificate of outcome by the
bargaining council, before referring the dispute to arbitration, the
appellant
was obliged to seek condonation from the arbitrator for his
failure to refer the dispute to arbitration within 90 days of the
date
of expiry of 30 days from the date that the bargaining council
had received the referral.
[50] The appellant
was, consequently, required to refer his unfair dismissal dispute to
arbitration within 90 days of 12 March
2003, which was no later than
10 June 2003. The appellant, however, only referred his unfair
dismissal dispute to arbitration more
than 12 months after the
referral was due on 24 June 2004, but failed to seek condonation,
from the bargaining council for this
inordinate delay. The
arbitrator, accordingly, erred in finding that the bargaining council
had jurisdiction to arbitrate the dispute.
I, accordingly, consider
the setting aside of the arbitration award by the Labour Court to
have been properly and correctly made,
on the grounds that the
referral to arbitration was lodged substantially more than 90 days
after the lapse of 30 days from the
date on which the bargaining
council had received the referral for conciliation, and in the
absence of an order condoning the delay,
the bargaining council had
no jurisdiction to arbitrate the dispute.
[51] The finding of
this Court on the jurisdictional issue is dispositive of the issues
on appeal and cross-appeal. Accordingly,
the Labour Court did not err
in failing to decide the remaining issues in the review. For the same
reason, it is not necessary
for this Court to determine the issues in
the cross-appeal. In the premises, I find that the arbitration award
was correctly reviewed
and set aside by the Labour Court. The appeal,
therefore, falls to be dismissed.
[10]
The
SAMWU
judgment was one that dealt with a referral made to
a bargaining council in terms of s 191(5) (a). The present case is
distinguishable;
it is a referral for adjudication made in terms of s
191 (5) (b). To the extent that the judgment makes references to any
referral
for adjudication under s 191 (5) (b), these are
obiter
.
Further, it seems to me, contrary to what the respondent submits,
that the LAC did not refer to or explicitly overturn
Hernic
.
The judgment makes no reference to s 191 (11), which specifically
provides that a dispute be referred for adjudication (as opposed
to
arbitration) within 90 days of the date that the CCMA certifies that
the dispute remains unresolved. There is no corresponding
provision
that applies to referrals to arbitration. This may well be anomalous,
but the plain wording of s 191 (11) draws a clear
distinction between
the processes of arbitration and adjudication, and the time limits
applicable to each.
[11]
Counsel also referred to the decision by the Constitutional Court in
F & J Electrical v MEWUSA obo E Mashatola and others
2015
(4) BCLR 377
(CC). In that case, the Constitutional Court upheld an
appeal against a refusal by this court to rescind a judgment granted
by
default, in circumstances where the union had referred the matter
for adjudication after the CCMA had issued a ruling to the effect
that it had no jurisdiction to arbitrate the dispute. The dispute was
one that concerned an alleged unfair dismissal based on the
employer’s operational requirements, a dispute that, like the
present dispute, is regulated by s 191 (5) (b). The Constitutional
Court observed that the dispute had been referred outside of the
period of 90 days calculated form the date on which the certificate
of outcome was issued, and that the default judgment had accordingly
been erroneously granted since the court had no jurisdiction
on
account of a late referral with no application for condonation. The
union had contended that the 90-day period commenced running
on the
(later) date of the commissioner’s jurisdictional ruling. At
paragraph 30 of the judgment, the court said the following:
The union contended that
the referral of the dispute to the Labour Court was within the
prescribed period. It seems that this contention
was based on a
misconception that the 90-day period was to be reckoned from the date
of the ruling of the CCMA. That is not so.
In this case, the period
had to be reckoned from the date when the certificate was issued.
[12]
It is not apparent from the judgment when the 30-day period after the
date of the referral of
the dispute to the CCMA expired (and in
particular, whether that period expired before or after the issuing
of the certificate).
But it is of some significance that the court
was concerned only with the date of the certificate, and that it
specifically regarded
the issuing of the certificate as the trigger
for the 90-day period. Had the court considered that the date of
expiry of the 30-day
period post referral was relevant, it would have
said so.
[13]
In summary: in the case of a dispute that is required to be referred
for adjudication (as opposed
to arbitration), s 191 (11) requires the
dispute to be referred within 90 days of the issuing of a certificate
of outcome, regardless
of the date of which the 30-day period
immediately following the date of referral of the dispute expired.
The applicants’
referral to this court was made within 90 days
of the date of the certificate of outcome, and was thus timeously
made. Condonation
for a later referral is not required, and it is not
necessary for me to consider the applicants’ submissions in
this regard.
The special plea accordingly stands to be dismissed.
[14]
Finally, in relation to costs, both parties agreed that this was a
matter in which regardless
of the result, it was appropriate that
each party pay its own costs.
I
make the following order:
1.
The special plea is dismissed.
2.
The registrar is directed to enroll the
matter for trial.
André van Niekerk
Judge
REPRESENTATION
For
the applicant: Adv. I De Vos, instructed by Ruth Edmonds Attorneys
For the respondent: Adv.
G van der Westhuizen, instructed by Norton Rose Fulbright