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[2019] ZALCJHB 318
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South African Broadcasting Corporation (SOC) Limited v Commission for Conciliation Mediation and Arbitration and Others (J2055/19) [2019] ZALCJHB 318; (2020) 41 ILJ 493 (LC) (18 October 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
CASE
NO: J 2055/19
In the matter between:
SOUTH AFRICAN
BROADCASTING
CORPORATION
(SOC) LIMITED
Applicant
And
THE COMMISSION FOR
CONCILIATION
MEDIATION
AND ARBITRATION
First Respondent
COMMISSIONER
DANIEL DU PLESSIS
Second Respondent
AYANDA
MKHIZE
Third
Respondent
Heard:
17 October 2019
Judgment delivered:
18 October 2019
Edited:
21 October 2019
JUDGMENT
VAN
NIEKERK J
[1]
The third respondent (the employee) was dismissed by the applicant
(the SABC) on 17
October 2018, exactly a year ago. The employee
contested the fairness of her dismissal, and referred a dispute to
the CCMA. The
matter was ultimately referred to an arbitration
hearing before commissioner Zazi Mqingwana. The SABC’s
representative challenged
the CCMA’s jurisdiction to hear the
case. In essence, the SABC argued that when an employee misconducts
him or herself, the
employer may treat the case as one of misconduct,
or as a breach of the employment contract. In this case, so the
argument went,
the SABC had decided to treat the case as a breach of
contract. That being so, the employee’s dismissal could only be
challenged
for its lawfulness, and not its fairness. Since the CCMA’s
statutory jurisdiction was limited to the determination of the
fairness of any termination of an employment contract, it lacked
jurisdiction to hear the case.
[2]
Commissioner Mqingwana held that the CCMA had jurisdiction to
arbitrate the dispute,
but that if the evidence led in due course
revealed that the true nature of the dispute was one over which the
CCMA did not have
jurisdiction, the dispute would not be arbitrated
but referred to an appropriate forum.
[3]
The SABC avers that it understood this ruling to mean that the CCMA
had provisional
jurisdiction to hear evidence to determine whether
the CCMA had jurisdiction to hear the merits of the case.
[4]
The matter was ultimately set down before commissioner Soman, who
asked to hear evidence
on the point in
limine
. For reasons
that are not relevant to these proceedings, commissioner Soman
recused herself, and the arbitration was reconvened
before the second
respondent, commissioner Du Plessis. The SABC avers that when
commissioner Du Plessis’s attention was drawn
to the ruling
made by commissioner Soman, he refused to hear evidence in relation
to the jurisdictional point, and ‘stated
that in his
understanding the in limine ruling was clear in that the CCMA had
jurisdiction to hear the merits of the matter’.
The employee
understands commissioner Du Plessis’s ruling to mean that he
could not interfere with the prior ruling made
by commissioner
Mqingwana, i.e. that the CCMA had jurisdiction (at least on a
provisional basis) to entertain the applicant’s
claim and that
the ruling remained binding in the absence of any review by this
court.
[5]
Be that as it may, on 7 October 2019, the SABC filed an application
(under case number
JR 2243/19) seeking to review and set aside the
ruling rendered by commissioner Mqingwana on 16 April 2019, and to
substitute it
with a ruling that the CCMA lacks jurisdiction to
arbitrate the employee’s dispute.
[6]
On 11 October 2019, the SABC filed the present application, in which
it seeks to stay
the arbitration proceedings pending the finalisation
of the review application. The SABC contends that if the
dispute is
arbitrated by the CCMA its right of review will be negated
and that it will expend time, effort and resources to arbitrate the
dispute, which will all be in vain if the review is upheld. If the
proceedings are stayed, and it subsequently transpires that the
CCMA
has jurisdiction, no resources would have been wasted and the matter
may simply be remitted to the CCMA for determination.
[7]
Since the SABC seeks an interim order, it is obliged in these
proceedings to establish
a
prima facie
right, a well-grounded
apprehension of irreparable harm if the interim relief is not
granted, that the balance of convenience favours
the granting of an
interim interdict, and that there is no other satisfactory remedy.
[8]
I deal first with the existence of any
prima facie
right. The
starting point is s 158(1B) of the LRA. That section was introduced
into the LRA in terms of the 2014 amendments to
the Act, and reads as
follows:
The Labour Court may not
review any decision or ruling made during conciliation or arbitration
proceedings conducted under the auspices
of the Commission or any
bargaining council in terms of the provisions of this Act before the
issue in dispute has been finally
determined by the Commission or the
bargaining council, as the case may be, except if the Labour Court is
of the opinion that it
is just and equitable to review the decision
or ruling made before the issue in dispute has been finally
determined.
[9]
The SABC must establish therefore, on a
prima facie
basis at
least, that it is ‘just and equitable’ for the court to
intervene by entertaining the application to review
and set aside the
jurisdictional ruling made on 16 April 2019.
[10]
There are at least two reasons why the SABC has failed to meet this
threshold. First, commissioner
Mqingwana’s ruling amounts to no
more than a decision to provisionally assume jurisdiction, to hear
evidence and to decide
whether it had jurisdiction to determine the
dispute (if necessary) on the basis of that evidence. This much is
clear from the
written ruling, in which the commissioner explicitly
states that jurisdiction was assumed on the basis that if it later
transpired,
after the leading of evidence, that the CCMA lacked
jurisdiction, a ruling to that effect would be made. In other words,
there
is no equivocal ruling on jurisdiction either way, certainly
not one that is susceptible to review.
[11]
To the extent that Mr. van As, who represented the SABC, urged me at
least to issue a directive
in any ruling that I make that
commissioner Du Plessis hear evidence on the jurisdictional point,
something that the SABC says
that he has refused to do. I fail to
appreciate how such an order can be made in the context of what
amounts to an application
to stay an arbitration hearing pending a
review of a jurisdictional ruling made by another commissioner.
Control over arbitration
proceedings (and the basis on which
evidence is led) is best left to the presiding commissioner. It is
not the function of this
court to micro-manage arbitration hearings
and issue directions to commissioners as to how they should conduct a
hearing. In any
event, as I have observed, some jurisdictional points
(particularly those concerned with whether the referring party is an
‘employee’
as defined in the LRA or whether any
termination of employment constituted a ‘dismissal’) are
best determined once
all the evidence is in – they need not be
the subject of a discrete enquiry.
[12]
Thirdly, and more fundamentally, there is manifestly no merit in the
basis of the SABC’s
point in
limine
,
and thus no merit in the review application. The point in
limine
amounts to an assertion that an employer is entitled to elect to
treat an act of alleged misconduct by an employee either as a
breach
of contract, or a breach of a disciplinary rule. In the former case,
the employee may not claim to have been dismissed in
the sense that
‘dismissal’ is defined in s 186 of the LRA, and may
certainly not claim to have been unfairly dismissed.
Any recourse by
the employee, so the argument goes, is thus confined to a contractual
remedy, a remedy that the CCMA is not empowered
to grant. This
proposition only has to be stated in those terms to illustrate how
profoundly unsound it is.
The definition of
‘dismissal’ in s 186 of the LRA expressly includes
circumstances where the employer ‘has terminated
employment
with or without notice.’ Whether the employer casts the
termination in the contractual language of acceptance
of the
repudiation of a contract of employment and an election to cancel the
contract, this is no more or no less than a termination
of
employment, with or without notice (i.e. a summary termination),
which in turn, by definition, constitutes a dismissal for the
purposes of s 186. This is a matter over which the CCMA exercises
jurisdiction, at least where the reason for dismissal is misconduct,
a reason that is not in dispute in the present instance (see s
191(5)). I find it disconcerting to have to record such a
trite
principle - to any labour lawyer, this is a statement of the
manifestly obvious. Were the SABC’s point in
limine
to be upheld, it would be open to employers to avoid the statutory
consequences of an unfair dismissal simply by casting a termination
of employment in common law contractual terms. The inadequacies of
the law of contract to protect employees against a termination
of
employment without a fair reason and without following a fair
procedure is the
raison d’etre
of the statutory protection against unfair dismissal. This protection
has its roots in the power imbalance inherent in the employment
relationship and the remedial constitutional right to fair labour
practices, a fact acknowledged many times over by this court,
the LAC
and the Constitutional Court.
[13]
In short – the SABC has failed to establish a
prima facie
right to the relief that it seeks. To the extent that the SABC
contends that it will suffer irreparable harm should the relief
not
be granted, this is simply not the case. The SABC has invested
significant energy and effort (and no doubt substantial legal
fees)
in delaying the determination of this dispute. Any irreparable harm
that there may be is that suffered by the employee, who
will face yet
delay in the determination of her dispute. Given the current backlog
in the opposed motion court roll, it is unlikely
that the review will
be heard within the next 12 months. For the same reason, the balance
of convenience favours the continuation
and conclusion of the
arbitration hearing. With a commitment by both parties to address the
real issue in dispute and avoid unnecessary
technicalities and
obstructions to an expeditious hearing, the arbitration hearing ought
to be expeditiously concluded. Commissioners
are specifically
enjoined and empowered by s 138 to avoid legal formalities and deal
firmly and fairly with the merits of a dispute.
The SABC has failed
to establish any of the requirements for interim relief and the
application thus stands to be dismissed.
[14]
The employee’s counsel submitted that costs should be awarded
de bonis propriis
, since the present application is nothing
less than an abuse of the process of this court. Section 162 affords
the court a discretion
to make orders for costs according to the
requirements of the law and fairness, after taking into account all
of the relevant facts
and circumstances. In the present instance, the
application has been brought in circumstances where the clear
legislative policy,
reflected in the introduction of s 158 (1B) in
2014, is that reviews of rulings made by commissioners ought not to
be brought piece-meal.
A case must be truly exceptional to warrant a
departure from the norm that a review is appropriate only once the
dispute has been
finally determined in a completed arbitration
hearing. This is consistent with the statutory purpose of expeditious
dispute resolution
which the LRA seeks to achieve. The conduct of the
SABC and its representatives throughout the course of this dispute
has been
directed at frustrating this purpose.
[15]
Section 158(1B) aside, I cannot lose sight of the context in which
the present application has
been filed. As I have noted, the employee
was dismissed on 17 October 2018. Despite the dispute having been
referred to the CCMA
within the required 30-day period, and after
four urgent applications brought by the SABC to this court, the
arbitration hearing
has yet to commence in any meaningful sense. The
employee has been unemployed for more than a year. She has been
obliged to incur
legal costs in her opposition to the various
applications filed by the SABC, and to bear the financial burden
consequent on the
proceedings having become unnecessarily protracted.
[16]
I must also necessary take into account the fact the common knowledge
that the SABC is in dire
financial straits and it survives on the
basis of bailouts from Treasury. I fail to understand how it can be
said that taxpayers’
money is being prudently spent by filing
urgent application after urgent application and seeking to avoid or
delay an arbitration
hearing on the merits by the taking of technical
points so obviously lacking in merit. I would have thought that tough
financial
times would dictate that the SABC’s disputes with its
employees be determined as expeditiously and inexpensively as
possible.
Considerations of good corporate governance and the moral
obligations owed by a corporation to employees (even those who have
been
dismissed) demand that respect be accorded to employees and that
the strategy of denying an employee effective access to justice
by
the application of corporate muscle must be avoided. This is not to
say that an employer ought not to discipline its employees
where this
is warranted, or that it is not entitled robustly to defend any
disciplinary action that is taken. But there is a difference
between
the robust defence or advancement of one’s interests, and a
conscious strategy to deny an employee access to justice
by resorting
to the superior resources and funds that an employer inevitably has
at its disposal. Indeed, the employee avers
that the present
application is an element of a broader tactic to deprive her of the
right to have the matter expeditiously finalised.
There is no
replying affidavit denying that averment and on the face of it, the
employee’s summation of the SABC’s
motives is correct.
[17]
Finally, this court has warned practitioners against pursuing the
hopeless case. In
Mashishi v Mdladla NO and Others
(2018) 39
ILJ
1607 (LC), the court said the following:
Section 162, which
regulates orders for costs in this court, confers a discretion to
make orders for costs, based on the requirements
of the law and
fairness. Those requirements, as I have stated above, compel
practitioners and other representatives to refrain
from referring
hopeless cases to this court and to place the interests of justice
and of the court before the parochial interests
of their clients and
what might be seen to be a principle of partisanship that requires
representatives to advance the client’s
partisan interests with
the maximum zeal permitted by law; and the principle of
non-accountability, which insists that a representative
is not
morally responsible for either the ends pursued by the client or the
means of pursuing those ends.
[18]
Regrettably and inevitably, the taxpayer will bear the bulk of the
costs of the SABC’s
overbearing legal strategy. But there is no
reason why the employee should be deprived of the costs that she has
occurred in opposing
this application. In my view, the interests of
the law and fairness are best satisfied by the SABC’s attorneys
being held
liable for those costs. To hold the SABC liable would
unfairly prejudice the taxpayers who keep the SABC afloat. I intend
therefore
to make an order for costs, on a punitive scale,
de
bonis propriiis
. Since the SABC’s attorneys were not given
notice of my intention to make such an order (on account of the
urgency of the
application), I intend to afford them seven days
within which to make submissions as to why an order in those terms
should not
be confirmed.
I make the following
order:
1.
The application is dismissed, with costs,
such costs to be paid
de bonis propiis
,
on the scale as between attorney and client.
2.
The order for costs in paragraph 1 is
provisional. The applicant’s attorneys are afforded seven days
to make submissions as
to why the order should not be confirmed.
André van Niekerk
Judge
APPEARANCES
For the applicant: Adv. M
van As, instructed by Werksmans Inc.
For the third respondent:
Adv. M Kufa, instructed by Motlatsi Seleke Attorneys