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[2019] ZALCJHB 34
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Matjila and Others v Thoka and Others (JR2014/16) [2019] ZALCJHB 34 (27 February 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR2014/16
In
the matter between:
MATJILA
AND OTHERS
Applicants
and
SS
THOKA
First
Respondent
GENERAL PUBLIC SERVICE
BARGAINING
COUNCIL
Second Respondent
GAUTENG DEPARTMENT OF
CORRECTIONAL
SERVICES
Third Respondent
Heard:
15 January 2019
Delivered:
27 February 2019
JUDGMENT
SCHENSEMA,
AJ
Introduction
[1]
This is an application to review and set aside a Ruling issued by the
first respondent
under the auspices of the second respondent (the
Council), dismissing the applicants' referral of an unfair labour
practice.
[2]
The application for review is brought in terms of s 145 of the Labour
Relations Act
[1]
(the LRA). The
review application was filed with this Court on 27 September 2016.
The application is opposed by the third respondent.
The relevant facts
[3]
The facts are largely common cause and for this reason have not been
set out in any
great detail herein. The applicants had referred an
unfair labour practice dispute to the Council in terms of which the
applicants
sought to be promoted to level 6 and their salaries to be
adjusted and backdated to July 2006 in accordance with level 6.
[4]
At the commencement of the proceedings on 22 July 2016, the first
respondent engaged
with the parties for purposes of determining the
true nature of the dispute. At the conclusion of these discussions,
the first
respondent issued a Ruling, whereby the first respondent
ruled that the applicants had referred an incorrect dispute to the
Council
and that as a result of the Council not having the
jurisdiction to hear the dispute, dismissed the applicants' referral.
[5]
The first respondent further recorded in his Ruling that whilst
attempting to narrow
the issues, it became clear, notwithstanding the
fact that the applicants had categorised their dispute as an unfair
labour practice
dispute relating to benefits, that the true nature of
the dispute related to the payment of salaries and it is for this
reason
that the Council lacked jurisdiction.
The Review Application
[6]
Upon receipt of the Ruling, the applicants launched a review
application. The grounds
of review are set out in the applicants'
founding affidavit.
[7]
The applicants
inter alia
contend that the first respondent
committed misconduct in that the point
in limine
ruled upon by
the first respondent had never been raised by the third respondent
and accordingly there was no basis for the first
respondent to have
made a ruling in this regard. Furthermore, that the applicants during
the proceedings had raised the issue relating
to their promotion from
post level 5 to post level 6 based on the grading structure of the
third respondent and accordingly the
dispute did not relate to
salaries.
[8]
In response to the applicants' founding affidavit, an answering
affidavit was filed
by the third respondent. The answering affidavit
makes reference to how the applicants were appointed. In this regard,
the applicants
were appointed as student correctional officers in the
discipline occupational class, Grade 3, at a specific salary notch
and were
stationed at Baviaanspoort. The applicant’s
appointments were made in line with an advertisement and were further
subjected
to, as their appointment conditions were regulated by the
Correctional Services Act
[2]
,
Public Service Regulations, Correctional Service Orders and
collective agreements that had been concluded in the Bargaining
Council
and that it was the responsibility of the applicants to
acquaint themselves with these conditions.
[9]
The third respondent further emphasised that notwithstanding the
categorisation by
the applicants in respect of the nature of the
dispute, the applicants true dispute related to their salaries and
accordingly the
Council did not have jurisdiction to arbitrate this
dispute. In this regard and with reference to the record, the
applicants had
stated on numerous occasions throughout the
proceedings that they were currently on salary level 5 and wished to
be paid on salary
level 6 as a result of having completed their
learnership.
Analysis
[11]
At issue in the proceedings under review is whether the applicants
have laid any justifiable
and valid basis for the setting aside of
the Ruling.
[12]
As this review application concerns an issue of jurisdiction, the
review test as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
does
not apply. In cases such as these, where it is about whether the
Council has jurisdiction, the Labour Court is entitled to,
if not
obliged, to determine the issue of jurisdiction of its own accord, by
deciding
de
novo
whether the determination by the first respondent on jurisdiction is
right or wrong.
[4]
[13]
It is trite that Bargaining Councils, like the
Commission for Conciliation Mediation and Arbitration (CCMA), cannot
decide upon
their own jurisdiction. Equally so, there is an
obligation on a commissioner to satisfy him/herself that the Council
has the requisite
jurisdiction to determine a dispute, irrespective
of how it was referred and the election of a party to pursue a
particular path
in respect of that claim. Furthermore, jurisdiction
is not assumed on the say-so of the parties, or the failure of a
party to raise
any such jurisdictional points where appropriate.
[14]
In
HOSPERSA
obo Tshambi v Department of Health, KwaZulu-Natal
[5]
,
the Labour Appeal Court had reiterated that:
“
An
arbitrator is required to determine the true dispute between the
parties. To that end, it is necessary to establish the relevant
facts
and construe the category of dispute correctly. An arbitrator must
make an objective finding about what is the dispute to
be determined.
This court in
Wardlaw
v Supreme Mouldings (Pty) Ltd (Wardlaw)
[6]
addressed directly the question of whether the employees'
characterisation of a dispute should enjoy deference and rejected
that
approach. Distinguishing the formalistic school of thought from
that of the substantive school of thought, this court held that
the
latter should prevail. As a result, in
Wardlaw
, an
arbitrator was held to have incorrectly assumed jurisdiction over a
dispute that was about an automatically unfair dismissal,
a category
of dispute reserved for adjudication by the Labour Court. The
Constitutional Court disposed of this issue in
Commercial
Workers Union of SA v Tao Ying Industries and Others
[7]
where it was held that:
‘
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 the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot
change its
underlying nature. A commissioner is required to take all the
facts into consideration including the description
of the nature of
the dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must
be borne in mind is
that there is no provision for pleadings in the arbitration process
which helps 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.’
[15]
The above principles therefore confirm that despite the applicants
having framed their dispute
in a particular manner, it was still
necessary for the first respondent to satisfy himself that the
dispute fell to be determined
by way of s 186 (2)(a) of the LRA. It
would therefore have been incorrect for the first respondent to
determine the dispute simply
in accordance with the manner with which
the applicants had sought it to be determined, specifically after the
first respondent
had established that the dispute was one that
clearly related to salaries and not to a promotion.
[16]
In order to decide whether the Ruling is right or wrong, being the
applicable review test, a
reading of the record is critical. The
reasons for this is as aforementioned, as this Court can only decide
this jurisdictional
issue for itself, on a
de
novo
basis, with reference to the record. Upon reading of the record I am
of the view that there is no merit to the applicants' review
application, in that the record clearly sets out the true nature of
the dispute
[8]
, which in my view
relates to salary and not to a promotion.
[17]
It is clear from the record that the first respondent on numerous
occasions engaged with the
applicants for purposes of determining the
true nature of the dispute and in my view and having considered the
record, it becomes
clear that the applicants' dispute clearly relates
to their salaries and not to a promotion.
[17]
Accordingly, there is no basis for a conclusion to be reached that
the Ruling of the first respondent
is one which a reasonable decision
maker could not have arrived at in the light of the material before
him and
once the
first respondent had established that the dispute related to
salaries, the first respondent was obliged to make the ruling
that
the second respondent lacked jurisdiction to determine the dispute.
[18]
In regards to costs, even though I am of the view that this review
application was ill-considered,
upon a consideration of the
requirements of law and fairness, I am of the view that each party
must be burdened with its own costs.
[19]
In the premises, I make the following order:
Order:
1.
The applicants’ application is dismissed;
Each party is to pay its
own costs.
________________________
H.
SCHENSEMA
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicants:
Mr Matjila (In Person)
For the Third Respondent:
Advocate S. Malatji
Instructed
by:
State Attorney
[1]
66
of 1995, as amended.
[2]
111 of 1998.
[3]
[2007]
28 ILJ 2405 (CC).
[4]
See:
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;
Workforce
Group (Pty) Ltd v CCMA and Others
(2012) 33 ILJ 738 (LC) at para 2;
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) 1839 (LAC) at para 16.
[6]
[2007]
28 ILJ 1042 (LAC).
[7]
[2008]
29 ILJ 2461 (CC) at para 66.
[8]
See
in particular pages 54, 55, 60, 64, 84, 88, 89, 90 and 91 of the
record.