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[2020] ZALCJHB 9
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Nhleko v Gauteng Department of Education (JS910/15) [2020] ZALCJHB 9 (21 January 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JS 910/15
In the matter between:
HENRY MFIHLENI
NHLEKO
Applicant
and
GAUTENG DEPARTMENT OF
EDUCATION Respondent
Heard: 29 November
2019
Delivered:
21 January 2020
JUDGMENT
LALLIE J
[1]
The applicant was employed by the respondent. Subsequent to the
termination of the employment
relationship he referred a dispute to
the Education Labour Relations Council (the ELRC) alleging that he
had been unfairly dismissed
on 6 December 2013 for reasons unknown to
him. As the dispute was referred in excess of a year after the
alleged unfair dismissal,
the applicant sought to have the delay
condoned. His condonation application was dismissed in a ruling which
was issued on 7 April
2015. On 27 June 2018 the applicant filed a
statement of claim at the Labour Court seeking a nullification of the
condonation ruling
as well as compensation for his alleged unfair
dismissal.
[2]
In response to the statement of claim the respondent raised a number
of exceptions.
As the exception was raised late the respondent filed
an application for condonation of the delay. Although the applicant
filed
no opposing papers, he argued that condonation should be
refused on the grounds that the delay was occasioned by the
respondent’s
defiance. I have considered the papers filed and
the submissions made in respect of condonation. I am satisfied that
the interests
of justice justify that condonation be granted. The
respondent’s averment that the delay resulted from human error
was not
refuted. Of significance is the applicant’s omission to
refute the respondent’s averment that the Labour Court lacks
jurisdiction to adjudicate the dispute which has been referred by the
applicant. Fairness and justice require that jurisdiction
be
determined as soon as possible to protect both parties from incurring
unnecessary costs. Condonation of the late filing of the
notice of
exception is therefore granted.
[3]
The first exception raised by the respondent is that the applicant
failed to make
the necessary averments for the relief of the
annulment of the condonation ruling. It is common cause that in a
letter dated 14
April 2015 the ELRC informed the applicant that the
condonation ruling was final and binding and that it could only be
set aside
by the Labour Court. The applicant was further informed
that he had 6 weeks from the date of receipt of the condonation
ruling
to approach the Labour Court should he wish to exercise his
right to have the condonation ruling set aside.
[4]
In the statement of claim the applicant expressed the view that the
condonation ruling
is defective. Section 145 (1) of the Labour
Relations
[1]
(the LRA) is clear.
It requires a party who alleges a defect in an arbitration award
(arbitration awards include condonation rulings)
to apply to the
Labour Court for an order setting the arbitration award aside. No
reason has been proffered by the applicant for
not following the
procedure laid down in section 145 (1) in challenging the condonation
ruling. Further, he made no averments supporting
his allegation that
the condonation ruling be annulled. The first exception is therefore
upheld.
[5]
The second exception is based on jurisdiction on the grounds that the
applicant failed
to make averments which will place his dismissal
dispute within the jurisdiction of the Labour Court. It is common
cause that the
applicant has alleged that his dismissal was unfair as
envisaged in section 191 (1) of the LRA. He further alleged that his
services
were terminated for no reason, without notice and without a
hearing having been held. The applicant’s case is therefore
that
his dismissal for reasons unknown to him was both substantively
and procedurally unfair. In terms of section 191 (5) (iii) of the
LRA
the dispute the applicant referred in his statement of claim falls
under the jurisdiction of the Commission for Conciliation
Mediation
and Arbitration (the CCMA) or a bargaining council. The second
exception is therefore upheld.
[6]
The third exception is linked to the second in that the respondent
submitted that
absent jurisdiction over an unfair dismissal dispute,
the Labour Court lacks jurisdiction to grant the relief of
compensation sought
by the applicant. This exception is valid as any
order for compensation must be preceded by a finding that the
dismissal was unfair.
As the Labour Court lacks jurisdiction to
adjudicate the fairness of the applicant’s dismissal, it
equally lacks jurisdiction
to grant any form of relief arising from
the dismissal including compensation. The third exception is
therefore upheld.
[7]
The basis of the fourth exception is that the applicant failed to
plead sufficient
facts to sustain the relief of compensation for
being dismissed by the respondent in a manner that is automatically
unfair. Section
187 of the LRA provides for conduct which constitutes
an automatically unfair dismissal. In his statement of claim, the
applicant
made no allegation that his dismissal was automatically
unfair as envisaged in section 187 of the LRA. In the absence of such
allegations
the relief he is seeking is incompetent. The fourth
exception must be upheld.
[8]
Jurisdiction is the authority to hear a dispute
[2]
.
As the exceptions which have been upheld include the one on the
Labour Court’s lack of jurisdiction, the applicant’s
claim stands to be dismissed.
[9]
In the premises, the following order is made:
Order
1. All the exceptions
raised by the respondent are upheld.
2. The applicant’s
claim is dismissed.
3. There is no order as
to costs.
_______
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant: In
Person
For
the Respondent: Advocate
T. Molokomme
Instructed
by: State
Attorney, Johannesburg
[1]
Act
66
of 1995 as amended
[2]
Gcaba
v Minister of Safety and Security and Others
[2009]
12 BLLR 1145
(CC)