About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2020
>>
[2020] ZALCJHB 26
|
|
Dombo v City of Tshwane Metropolitain Municipality (JS628/19) [2020] ZALCJHB 26 (6 February 2020)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JS 628/19
In the matter between:
ND
DOMBO Applicant
And
CITY
OF TSHWANE METROPOLITAIN
MUNICIPALITY Respondent
Date
heard: 25 October 2019
Delivered:
6 February 2020
JUDGMENT
RABKIN-NAICKER,
J
[1]
This judgment deals with three special pleas raised by the respondent
in its statement of response to
the applicant’s claim. In its
statement of claim the applicant relies on section 77(3) of the Basic
Conditions of Employment
Act
[1]
(BCEA) to found jurisdiction of the Labour Court. In the pre-trial
minute, the precise relief claimed is recorded by the parties
as the
following:
“
5.1
The Applicant seeks an order compelling the Respondent to restore the
breach of his
terms and conditions of employment and pay the
Applicant his progression and/or notch increments for the period
2011-2014”.
[2]
The first special plea as conceived by the respondent is that the
matter is
res judicata
, and/or
lis pendens
, and/or that
the applicant engages in forum shopping. It submits that on these
grounds the Labour Court does not have jurisdiction
to hear the
claim.
[3]
The background to the matter is the following:
3.1
On or about 29 October 2018, the applicant referred a dispute in
terms of section
24 of the Labour Relations Act
[2]
(LRA)
to the SALGBC in which he sought payment of notch increments for the
periods 2011-2014.
3.2
A ruling was issued to the effect that the dispute did not pertain to
the interpretation
of a collective agreement but to an unfair labour
practice dispute and that the applicant would have to apply for
condonation to
the bargaining council for the late referral of the
latter.
3.3
The applicant did not file a review of the ruling and did not apply
for condonation
for the late filing of an unfair labour practice
dispute.
[4]
The respondent has argued this first plea on jurisdiction relying on
the basis set out in paragraph
2 above. However, this Court may
mero
motu
consider whether it has jurisdiction and is not bound to the
submissions contended on behalf of the applicant.
[5]
As I have set out in a judgment in a similar matter
[3]
,
this type of dispute cannot be characterized as one falling under
section 77(3) of the BCEA. In the matter of
National
Union of Metalworkers of SA and Others v Micromega (Pty) Ltd
[4]
LeGrange, J considered the Labour Appeal Court (LAC) authority on the
interpretation of section 77(3):
“
[15]
The leading case on interpreting what is meant by the phrase ‘a
matter concerning a contract of employment’ in
s 77(3) of the
BCEA is
Rand Water v Stoop &
Another
. In that case, the LAC found
that an employer’s counterclaim for fraud arising from an
alleged breach of an employee’s
contractual obligation to act
in good faith could be entertained simultaneously with a claim for
unfair dismissal. Importantly,
the LAC held that in that case, the
appellant employer’s ‘counterclaims are pleaded as
arising out of and related to
the contract of employment that existed
between the appellant and the respondents’. The LAC,
amongst other findings
stated:
‘
[21]
Generally the Labour Court and this court have held that if an issue
in dispute relates to; is linked to; or connected with
an employment
contract then the Labour Court does have jurisdiction in terms of s
77(3) of the BCEA to entertain such a dispute.
…
[30] … The word
“concerning” while conveying a cause and effect does not
convey a meaning that some causes and
effects are acceptable and
others not or that there has to be a direct or indirect link between
the contract of employment and
the claim.’
The court also held (at
para 39) that:
‘
I
am satisfied that s 77(3) read with s 77A(e) favours an
interpretation bringing within its ambit the type of claim instituted
by the appellant in this matter as:
39.1
The word “concurrent” in s 77(3) places the Labour Court
in exactly the same position as
the High Court with the same powers
and authority in relation to matters concerning a contract of
employment.
39.2
The last part of s 77(3) provides the Labour Court with jurisdiction
irrespective of whether any basic
condition of employment constitutes
a term of the employment contract. This demonstrates that the Labour
Court has jurisdiction
over any claim as long as it involves a
contract of employment.
39.3
The words “concerning a contract of employment” mean
about or in connection with an employment
contract. The pleaded claim
clearly falls within this categorization.
39.4
The words “any matter” in s 77(3) are broad and the
literal interpretation does not limit
the claims, in relation to a
contract of employment, to a specific category. Damages, both liquid
and illiquid, are included.’
[6]
In addition to considering the above, the following dictum in the
Micromega
[5]
judgment
is relevant:
“
[17]
What is important to notice in all of the above is that the issue in
dispute must in some way be linked causally, whether directly
or
indirectly, to an employment contract….”
[7]
In this matter, the applicant has not pleaded reliance on any clauses
of his individual employment contract.
Nor is his employment contract
annexed to the pleadings. What he does annex to his statement of case
is a Collective Agreement
dealing with the Fire Grading System for
Fire Safety Employees in the Community Safety Department of the
respondent.
[8]
This matter is not linked causally directly or indirectly to an
employment contract for the purposes
of section 77(3) of the BCEA. As
is common cause, a binding ruling by the SALGBC has found that the
issue in dispute concerns an
unfair labour practice. It appears that
rather than risking the refusal by the Council to grant condonation,
the applicant has
gone for a third option. Unfortunately for him,
this Court does not have jurisdiction to adjudicate the claim. The
applicant is
forum shopping (although this is not a ‘special
plea’) and given its caseload, the Labour Court can ill afford
this
type of matter clogging up its rolls.
[9]
It is not necessary for me to deal with the further two special pleas
raised by the respondent. I make
the following order.
Order
1.
The applicant’s claim is dismissed
for want of jurisdiction.
_________________
H. Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Geldenhuys CJ @ Law Inc
Respondent:
Geldenhuys Malatji Incorporated
[1]
Act
75 of 1997.
[2]
Act
66 of 1995 as amended.
[3]
See
judgment in matter J1028/14
IMATU
obo JL Fourie and Others v City of Tshwane Metropolitan Municipality
and Others
handed down on …. 2020
[4]
(2018)
39 ILJ 2048 (LC).
[5]
Supra
n
4.