Brief Summary

Labour Law — CCMA — Functus officio — Review of condonation ruling — Applicant dismissed and referred dispute to CCMA, which issued a certificate of non-resolution — Applicant re-referred the same dispute after the statutory period, seeking condonation — CCMA lacked jurisdiction to entertain the second referral as it was functus officio after issuing the initial ruling — Ruling set aside as a nullity due to lack of jurisdiction.

Comprehensive Summary

Summary of Judgment

Introduction

This was an opposed review application in the Labour Court (Johannesburg) brought in terms of the court’s review jurisdiction over decisions of the Commission for Conciliation, Mediation and Arbitration (CCMA). The applicant sought to review and set aside a condonation ruling made by a CCMA commissioner, in which condonation was refused for the late referral of a dismissal dispute to conciliation.

The parties were Daniel Peter Morobane (the applicant and dismissed employee), the Commission for Conciliation, Mediation and Arbitration (first respondent), Commissioner Johan D Stapelbbberg (second respondent, the commissioner who issued the impugned ruling), and the Film and Publication Board (third respondent and employer). The review was opposed by the third respondent, represented by counsel, while the applicant appeared in person.

Procedurally, the applicant had originally referred an unfair dismissal dispute to the CCMA within the prescribed statutory time period, and the CCMA issued a certificate of outcome stating that the dispute remained unresolved. Instead of proceeding to arbitration or adjudication as contemplated by the Labour Relations Act 66 of 1995 (LRA), the applicant later made a second referral of the same dismissal dispute to conciliation and sought condonation for lateness. The commissioner entertained the condonation application and refused it. That refusal was then taken on review. The matter was initially enrolled before Lallie J but was not heard due to a power failure caused by load shedding; it was then enrolled and heard before Moshoana J.

The general subject-matter of the dispute concerned whether the CCMA was empowered to entertain a second conciliation referral (and an associated condonation application) in respect of the same dismissal dispute, given that conciliation had already occurred and a certificate of non-resolution had been issued.

Material Facts

The court treated the following facts as material to the determination of the review.

The applicant was dismissed by the third respondent on or about 16 July 2015. He referred an unfair dismissal dispute to the CCMA within the time period prescribed by the LRA. On 9 September 2015, after the CCMA performed its statutory conciliation function, it issued a certificate confirming that the unfair dismissal dispute remained unresolved. This certificate was treated by the court as proof that conciliation was attempted and failed, and that the CCMA had therefore exercised its statutory powers in relation to that dispute.

After the certificate issued, the applicant did not take either of the next statutory steps open to him, namely to request arbitration or to refer the dispute for adjudication. Instead, in August 2017, acting on advice that the court characterised as incorrect, the applicant re-referred the same dismissal dispute to the CCMA for conciliation. Because this second referral was outside the prescribed time period, the applicant also brought a condonation application for the late referral.

The second respondent (the commissioner) entertained the condonation application and issued the impugned ruling refusing condonation for the late second referral. The applicant then launched the present review application to set aside that ruling.

The court drew a distinction between the existence of the initial timeous referral and conciliation (which was undisputed and central to the functus officio point) and the merits of condonation (which became secondary once jurisdiction was addressed). The court also addressed and rejected the third respondent’s contention that the applicant had “abandoned” the first referral, holding that completion of conciliation and failure to pursue arbitration/adjudication did not equate to abandonment of the dispute.

Legal Issues

The central legal question was whether, after the CCMA had already conciliated the applicant’s dismissal dispute and issued a certificate of non-resolution, it was functus officio in respect of the conciliation stage and therefore lacked jurisdiction to entertain a second referral of the same dispute to conciliation and to rule on condonation for that second referral.

A subsidiary procedural question was whether the Labour Court was entitled, or obliged, to raise the functus officio/jurisdictional point mero motu despite it not being expressly foreshadowed in the applicant’s founding papers, and notwithstanding the third respondent’s objection that the point had not been pleaded.

The dispute concerned primarily a question of law (jurisdiction and the functus officio doctrine), applied to essentially common-cause procedural facts (the prior referral, conciliation, and issuance of the certificate). It also involved the legal consequences of an act performed without jurisdiction, namely whether the commissioner’s ruling was a nullity susceptible to being set aside on that ground alone.

Court’s Reasoning

The court first addressed whether it could raise the jurisdictional issue of functus officio mero motu. It accepted that courts should not decide irrelevant issues, but held that where a point of law is apparent from the papers and the parties’ approach proceeds on a wrong perception of the law, the court is not only entitled but obliged to raise the point to avoid deciding the matter on an incorrect legal basis. In doing so, the court relied on the principle articulated by the Supreme Court of Appeal in Minister of Justice and Correctional Services v Walus [2017] 4 All SA 1 (SCA), linking this approach to the principle of legality. On that basis, the court rejected the third respondent’s submission that the point should not be entertained because it was not foreshadowed in the pleadings.

Turning to functus officio, the court held that the doctrine applies to CCMA commissioners, referring to PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana [2013] 3 BLLR 225 (LAC). The court stated the general meaning of the doctrine: a decision-maker vested with adjudicative or decision-making powers may, as a general rule, exercise those powers only once in relation to the same matter.

The court then applied the LRA’s conciliation provisions to the facts. It identified section 135(1) and section 135(2) of the LRA as conferring on the CCMA the statutory power and duty, once a dispute is referred, to appoint a commissioner and to attempt to resolve the dispute through conciliation. It further referred to section 135(5), which requires that when conciliation fails, the commissioner must issue a certificate stating whether the dispute was resolved. The court treated the issuance of the certificate as an administrative act that constitutes proof that conciliation was attempted and failed, and therefore that the CCMA had exercised its statutory conciliation powers over the dispute.

On the court’s approach, once the CCMA had conciliated the applicant’s dismissal dispute and issued the certificate on 9 September 2015, the CCMA became functus officio in respect of attempting conciliation of that same dispute again. Accordingly, the applicant was not legally entitled to re-refer the dispute for a second conciliation. The court accepted that the applicant had been wrongly advised, and noted that the second referral documentation even described the matter as a “reinstatement of an existing matter”, which the court viewed as reflecting a misunderstanding of the legal position. However, the court held that the applicant’s misunderstanding did not confer jurisdiction on the CCMA.

The court emphasised that, in these circumstances, the commissioner ought simply to have declined jurisdiction rather than embark on condonation under section 191 for the late second referral. The court reasoned that the condonation enquiry contemplated in section 191(2) is linked to permitting a late referral where a party fails to refer within the prescribed time, but it does not authorise a condonation process aimed at validating an otherwise incompetent second referral of the same dispute to conciliation. In support of the proposition that a second referral is incompetent and that a conciliator would lack jurisdiction to grant condonation in such circumstances, the court referred to Premier Gauteng and Another v Ramabulana N.O [2008] 29 ILJ 1099 (LAC).

Because the commissioner entertained the condonation application and made a ruling in circumstances where the CCMA lacked the necessary jurisdictional power (having already performed its statutory conciliation function in respect of the dispute), the court held that the ruling was a nullity. It applied the principle that an order or ruling made without jurisdiction is ultra vires and void, citing Eskom v Marshall and others [2003] 1 BLLR 12 (LC) and the authorities referenced there.

The court also addressed the third respondent’s submission that the applicant had “abandoned” the first referral and therefore should be held to the consequences of the second referral. It rejected this characterisation by explaining the statutory scheme: conciliation is the first distinct stage, and only after it fails does a party proceed to arbitration or adjudication. The applicant had exhausted the conciliation stage, and his failure to request arbitration or refer the dispute for adjudication did not equate to abandonment of the referral already processed through conciliation. The court held further that the applicant’s right to pursue the dispute through arbitration or adjudication remained intact, subject to any applicable time limits and condonation decisions by the relevant decision-maker; it was not for the Labour Court in this review to decide those future condonation questions.

Finally, the court observed that, although it would set aside the commissioner’s ruling, it could not itself “condone” the late second referral because the second referral was not authorised in law.

Outcome and Relief

The Labour Court held that the CCMA commissioner’s condonation ruling was issued without jurisdiction because the CCMA was functus officio after the first conciliation and certificate of non-resolution, and the ruling was therefore a nullity.

The court ordered that the condonation ruling issued on 28 November 2017 under case number GATW 12420-17 was reviewed and set aside. The court made no order as to costs.

Cases Cited

Four Wheel Drive CC v Leshni Rattam N.O (1048/17) [2018] ZASCA (26 September 2018)

Minister of Justice and Correctional Services v Walus [2017] 4 All SA 1 (SCA)

PT Operational Services (Pty) Ltd v RAWU obo Ngwetsana [2013] 3 BLLR 225 (LAC)

Ncaphayi v Commission for Conciliation, Mediation and Arbitration [2011] 32 ILJ 402 (LC)

Premier Gauteng and Another v Ramabulana N.O [2008] 29 ILJ 1099 (LAC)

Eskom v Marshall and others [2003] 1 BLLR 12 (LC)

Immelman v Keller 1903 20 SC 3

Visser v Van Der Heever 1934 CPD 315

Botha v Department of Education (Limpopo Province) and Others (2008) 29 ILJ 624 (LC)

Legislation Cited

Labour Relations Act 66 of 1995 (as amended), including sections 135 and 191

Rules of Court Cited

No specific rules of court were cited in the judgment.

Held

The court found that, once the CCMA had conciliated the applicant’s unfair dismissal dispute and issued a certificate of non-resolution, it had exhausted its statutory conciliation powers in respect of that dispute and was functus officio. A second referral of the same dispute to conciliation was therefore incompetent, and the CCMA commissioner had no jurisdiction to entertain a condonation application directed at permitting that second referral. The condonation ruling was accordingly a nullity and was set aside on review. The court further rejected the contention that the applicant had abandoned the first referral merely by failing to proceed to arbitration or adjudication after conciliation failed.

LEGAL PRINCIPLES

The Labour Court applied the principle that where a point of law is apparent on the papers and the parties’ common approach proceeds on a wrong perception of the law, a court is not only entitled but may be obliged to raise the legal point mero motu to avoid making a decision premised on an incorrect application of the law, consistent with the principle of legality.

The court applied the doctrine of functus officio to CCMA decision-making, holding that where the CCMA has already exercised its statutory powers in relation to a dispute (in this case, by conducting conciliation and issuing a certificate of non-resolution), it generally may not exercise the same statutory powers a second time in respect of the same dispute.

The court applied the principle that a decision made without jurisdiction is ultra vires and constitutes a nullity, which is susceptible to being set aside on review on that basis alone.

The court further applied the LRA’s dispute-resolution scheme by treating conciliation as a distinct first stage which, once completed, cannot be repeated for the same dispute, and by distinguishing that stage from the subsequent steps of arbitration or adjudication, which require separate procedural acts (a request for arbitration or a referral to the Labour Court) and may involve separate condonation determinations by the appropriate forum.

Morobane v Commission for Conciliation Mediation and Arbitration and Others (JR26/18) [2019] ZALCJHB 342 (19 November 2019)