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[2019] ZALCJHB 56
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Naidoo v Liberty Holdings (JR558/16) [2019] ZALCJHB 56 (19 March 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JR558/16
In
the matter between:
KREAN
NAIDOO
Applicant
And
LIBERTY
HOLDINGS
Respondent
Heard
:
5
February 2019
Delivered
:
19 March 2019
Summary:
Review of CCMA ruling on jurisdiction. Application to have CCMA
ruling on jurisdiction reviewed
and set aside.
JUDGMENT
RAPHULU,
AJ
Background
[1]
The applicant is a former employee of the respondent. He was employed
by the respondent as a Senior Manager – Group Tax, until his
dismissal for misconduct. The applicant is of the view that his
dismissal was unfair, and wants to have the fairness of his dismissal
interrogated. In terms of his employment contract with the
respondent, the applicant agreed to be bound by the respondent’s
terms of employment, which contract of employment incorporates
the
respondent’s Employee Relations Handbook by referring to same.
Said Employee Relations Handbook provides that dismissal
disputes are
to be dealt with via private arbitration. The applicant does not want
to go the route of private arbitration, and
instead claims his right
to refer his dispute to the CCMA. The CCMA has ruled that it does not
have jurisdiction to hear the matter,
and that the applicant may
elect to instead refer it to private arbitration. This is a review of
the CCMA’s jurisdiction
ruling.
[2]
The applicant contends that he was never given a copy of the Employee
Relations Handbook on commencement of employment with the respondent;
that he never agreed to dealing with disputes via private
arbitration; and that never gave up his right to refer the matter to
the CCMA. He claims that private arbitration would mean automatic
legal representation, arbitration costs after the first R30 000 that
would be solely covered by the respondent, leeway for the
arbitrator
to order other costs, and the possibility of the chairperson of his
disciplinary hearing to be the arbitrator as he
appears on the list
of possible arbitrators.
[3]
The applicant argues that the arbitrator erred in finding in favour
of
the respondent, and that had he in particular considered that the
applicant would incur arbitration costs after the first R30 000,
the
arbitrator would have found that the circumstances warrant the CCMA
hearing the matter, and not referring it to private arbitration.
[4]
The applicant contends that the fact that the Employee Relations
Handbook
states at 12.1.1 that:
“
If the
disciplinary enquiry outcome leads to a dismissal, and the dismissed
Employee is not satisfied with this outcome, the dismissed
Employee
may
refer the matter to Compulsory Private Arbitration within
30 days from date of termination”
[emphasis added]
means that he may refer the dispute to private arbitration or to the
CCMA.
[5]
The applicant contends that in terms of section 147 (6) of the Labour
Relations Act, the arbitrator erred in not directing that the matter
goes to private arbitration, but in instead saying the applicant
may
refer the matter to private arbitration if he so wishes.
[6]
The respondent argues that the applicant was a senior employee who
agreed
to the terms of his employment; that he had access to the
Employee Relations Handbook for the full term of his employment with
the respondent; that private arbitration is consistently used at the
respondent; and that as it is the practice - the respondent
would
cover the full costs of the arbitration and not only the first
R30 000.
[7]
The respondent submitted that although the Employee Relations
Handbook
states that only the first R30 000 is borne by the
respondent, its submissions before the CCMA clarified that the
respondent would
in fact cover the full costs of the arbitration. The
respondent submitted that the chairperson of the disciplinary hearing
was
one of a possible 9 arbitrators for the parties to elect from,
and the fact that his name was on the list did not mean that he would
be the appointed arbitrator.
[8]
The respondent submitted that the rules of natural justice would
still
need to apply even at private arbitration, and to the extent
that they were not, the applicant still had at his disposal normal
recourse such as review by this Court.
[9]
The respondent submitted that the decision to refer the matter to
private
arbitration or not to refer a dispute at all as set out in
section 147(6) of the LRA, lies solely with the applicant, and is not
with the arbitrator.
Analysis
of evidence
[10]
The applicant was a senior employee of the respondent and ought to
have understood that
signing a contract of employment that refers to
conditions of employment contained in an Employee Relations Handbook
means that
he was agreeing to be bound by the terms in the Employee
Relations Handbook.
[11]
The arbitrator’s ruling relied on the agreement between the
parties to deal with
disputes via private arbitration; the
respondent’s evidence that it would cover the full costs of the
arbitration thus there
would be no financial prejudice to the
applicant in this regard; that the arbitrator would have the same
powers as a CCMA commissioner
in that the rules of natural justice
would apply, and held that the evidence was overwhelmingly in favour
of the respondent.
[12]
Section 147(6) of the LRA states that:
(6) If at any stage
after a dispute has been referred to the Commission, it becomes
apparent that the dispute ought to have been
resolved through private
dispute resolution in terms of a private agreement between the
parties to the dispute, the Commission
may -
(a)
refer the dispute to the appropriate
person or body for resolution through private dispute resolution
procedures: or
(b)
appoint a commissioner to resolve
the dispute in terms of this Act
[13]
The arbitrator correctly adhered to that the decision to actually
refer the matter to private arbitration
(or not to refer a dispute at
all), lies with the applicant. Once the appropriate route is
determined to be that of private arbitration,
the CCMA steps aside
and the aggrieved party has the recourse of private arbitration, if
he so wishes to proceed with his dispute.
[14]
Having considered the evidence before the arbitrator, and his
reasoning, I find that the arbitrator arrived
at the correct ruling
on the jurisdiction point – that the CCMA has no jurisdiction
to hear the matter, and that if the applicant
wishes to pursue an
unfair dismissal dispute, such dispute must be dealt with by way of
private arbitration as per the contract
of employment read together
with the Employee Relations Handbook.
[15]
In the circumstances, I make the following order:
Order:
1.
The review application is dismissed.
2.
There is no order as to costs.
_______________________
Raphulu
L
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Self represented.
For the
Respondent: D.L. Thereu,
instructed by Salijee Govender van der Merwe Attorneys