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[2019] ZALCJHB 194
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Fadila v Minister of Department of Science and Technology and Another (JS1042/17) [2019] ZALCJHB 194 (6 August 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no:
JS
1042/17
In
the matter between:
LAGADIEN
FADILA
Applicant
and
MINISTER OF DEPARTMENT
OF SCIENCE AND
TECHNOLOGY
First
Respondent
DIRECTOR
GENERAL OF THE DEPARTMENT OF
SCIENCE
AND TECHNOLOGY
Second Respondent
Heard
:
02 August 2019
Delivered
:
06 August 2019
Summary:
Points in limine
of unreasonable delay and lack of
jurisdiction – where there are prescribed time periods, the
common law principle of undue
delay does not find application. The
Labour Court retains jurisdiction where the referring party alleges
automatically unfair dismissal.
Until reviewed and set aside by a
competent court, a ruling of the commissioner remains binding and
effective. Held (1): The
points in limine
are
not upheld. (2): No order as to costs.
JUDGMENT
MOSHOANA,
J
Introduction
[1]
Before me serves an interlocutory application raising two
points
in limine
as raised by the first and second respondents. The
first one relates to undue delay and the other relates to lack of
jurisdiction.
This matter is a referral and has a long and
unfortunate history. It is not necessary for the purposes of this
judgment to repeat
such history. Suffice to mention that the dispute
alleged herein occurred on 28 July 2014, which is now five years old.
Given the
view I take in this judgment; the dispute would still be in
this Court for another year or two. This is unfortunate for a labour
dispute.
Background
facts
[2]
On 28 July 2014, the applicant tendered a
resignation as an employee of the Department of Science and
Technology (the Department).
Subsequent thereto, on 19 August 2014,
the applicant referred a dispute to the Government Public Service
Sector Bargaining Council
(GPSSBC) alleging unfair dismissal. On 23
September 2014, the applicant withdrew the dispute. At the same time,
the dispute was
re-referred and accompanied by an application seeking
condonation of the late referral to conciliation.
[3]
On
or about 9 December 2014, a ruling was issued refusing the
condonation sought. I pause and mention that this ruling was not
taken on review. Later on, on 22 June 2015, the applicant referred
another dispute and alleged unfair discrimination in terms of
section
10 of the Employment Equity Act
[1]
.
This dispute was certified as being unresolved. I again pause to
mention that it is unclear as to what eventually happened to
this
dispute.
[4]
Later, the applicant attempted to rescind
the ruling of 9 December 2014. On 11 June 2015, a ruling was issued
refusing the rescission
application. Again, I pause to mention that
this ruling was not taken on review. On or about 22 April 2016, the
applicant yet again
referred a dispute to the GPSSBC alleging unfair
dismissal. On or about 14 October 2016, the GPSSBC declined
jurisdiction and directed
the matter to the Commission for
Conciliation, Mediation and Arbitration (CCMA).
[5]
On
or about 23 January 2017, the applicant referred the “dismissal
[2]
”
of 28 July 2014 to the CCMA. In this referral, she labelled the
dismissal as being automatically unfair. On 10 March 2017,
Commissioner L Du Plessis issued a ruling refusing to assume
jurisdiction and transferred the dispute to the GPSSBC, since the
parties fell under the GPSSBC. Yet again none of the parties
challenged this ruling.
[6]
For some unexplained reasons, Commissioner
L Dekker, on 31 October 2017, issued a ruling to the effect that by
agreement between
the parties, the ruling of Du Plessis was rescinded
and the late referral was condoned. This ruling was not challenged by
the respondents.
In addition, Dekker issued a certificate, certifying
that the alleged automatically unfair dismissal remains unresolved
[7]
On 29 January 2018, the dispute that was certified
to be unresolved was referred to this court for adjudication. In
response to
the statement of claim, the respondents took the
points
in limine
mentioned above.
Evaluation
[8]
Two
points ought to be made upfront. Firstly, the Labour Relations Act
[3]
(the LRA) empowers this Court to review the performance or purported
performance of any function provided for in the LRA on any
grounds
that are permissible in law. By issuing a ruling rescinding the
ruling of Du Plessis and condoning the late filing as well
as issuing
a certificate of non-resolution, Dekker was performing or purporting
to perform the functions provided for in the LRA.
It is doubted by
this Court that Dekker is empowered in terms of section 144 of the
LRA to rescind the ruling of Du Plessis. Secondly,
an administrative
action stands until reviewed and set aside by a competent court of
law. I do not mean to say that the actions
of Dekker had assumed
legality thereby.
[9]
Turning to the
points
in limine
. Section 191(11) of the LRA
provides that a referral for adjudication to the Labour Court must be
made within 90 days of certification
that the dispute remains
unresolved. In this matter, the certification was made on 31 October
2017. The 90 days lapsed on 31 January
2018. The applicant referred
the dispute before the lapse of the 90 days. Where a time period is
prescribed by a statute, the common
law rule of undue delay does not
apply. Accordingly, the point of undue delay cannot be upheld.
[10]
Section 191 (5) (b) (i) of the LRA provides that
the employee may refer the dispute to the Labour Court for
adjudication if the
employee has alleged that the reason for
dismissal is automatically unfair. The applicant made such an
allegation in the statement
of case, thus this Court retains
jurisdiction. Should it turn out that there was no dismissal, this
Court and/or the CCMA or Bargaining
Council would lack jurisdiction.
It ought to be emphasized that where an employee alleges that he or
she resigned because the employer
made continued employment
intolerable, such an employee is seeking to show that a dismissal
within the meaning of section 186 (1)(e)
has occurred. It is
unfortunate that section 191 (5)(a)(i) provides that the CCMA or
Council must arbitrate the dispute at the
request of an employee if
the employee has alleged that the reason for dismissal is that the
employer made continued employment
intolerable.
[11]
In my view, making continued employment
intolerable cannot be a reason for dismissal. What it does is to
convert a termination made
by an employee to be a dismissal within
the meaning of section 186 (1) (e) of the LRA. Nonetheless, the
Commission or Council is
obligated to arbitrate if requested by an
employee. In
casu
,
the applicant did not request the CCMA or Council to arbitrate. For
these reasons, the point of lack of jurisdiction cannot be
upheld.
[12]
Regarding costs, I am of a view that an
appropriate order to make is that of no order as to costs.
[13]
In the results, I make the following order:
Order
1.
The
points in limine
are not upheld.
2.
No order as to costs.
_______________________
GN Moshoana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate B Mashabane
Instructed
by:
Mr Juan-Henry Cavanagh of Cavanagh & Richards Attorneys,
Centurion.
For
the Respondents:
Advocate MM Mojapelo
Instructed
by:
State Attorney, Pretoria.
[1]
No 55 of 1998.
[2]
The applicant resigned and alleged constructive dismissal.
[3]
Act 66 of 1995, as amended.