THE LABOUR COURT OF SOUTH AFRICA , DURBAN
Reportable
Case No: D2110/ 18
In the matter between:
MEC FOR HEALTH, KWAZULU -NATAL Applicant
and
LYNETTE KING First Responde nt
MOODLEY, KM N.O. Second Respondent
PUBLIC HEALTH AND SOCIAL DEVELOPMENT
SECTORAL BARGAINING COUNCIL Third Respondent
Case No. D6 7/21
DEPARTMENT OF CORRECTIONAL SERVICES Applicant
and
SANJAY BALKA RAN N.O. First Respondent
PSA o.b.o. TREVOR MOORE Second Respondent
GENERAL PUBLIC SERVICE SECTORAL
BARGAINING COUNCIL (GPSSBC) Third Respondent
Heard: 5 March 2025
Delivered: 31 March 2025
______________________________________________________________________
JUDGMENT
______________________________________________________________________
MAKHURA , J
Introduction
[1] There are two applications before this Court. These applications were brought in
terms of section 145 of the Labour Relations Act (LRA) to review and set aside
the arbitration awards .1 On the day of the hearing on 5 March 2025, this Court
mero motu raised concerns with the commissioners’ failure to determine whether
they had the jurisdiction to arbitrate the disputes. The concerns stemmed from
the characterisation of the disputes as interpretation and/or application disputes,
the nature of relief sought by both employees which dated back to Octob er and
November 2011 , the fact that the disputes were referred in April 2018 and July
2019 respectively and after consideration of the Labour Appeal Court (LAC)
judgment in Health & Other Services Personnel Trade Union of SA on behalf of
Tshambi v Departme nt of Health, Kwazulu -Natal2 (Tshambi) .
[2] The Court proceeded to issue an order in the following terms :
1 Act 66 of 1995, as amended.
2 (2016) 37 ILJ 1839 (LAC) ; [2016] 7 BLLR 649 (LAC) .
‘1. The parties are directed to file supplementary heads of argument
on or before 14h00 on 14 March 2025 to address the following
issues:
1.1. The true nature of the dispute, whether it is one of
interpretation and/or application of a collective agreement as
characterised or not.
1.2. The jurisdiction of the bargaining council insofar as it relates
to the date when the dispute arose and the date of referral of
the dispute, and whether the dispute was referred within the
prescribed period (if any) or within a reasonable period.
1.3. The appropriate relief in the event it is found that the dispute
was referred outside the prescribed or reasonable period. ’
[3] The parties have now complied with the above order and filed their respective
supplementary heads of argument . The employee in D2110/18 is Lynette King,
referred to in this judgment as King or employe e. In D67 /21, the employee is
Trevor Moore, referred to in this judgment as Moore or emplo yee.
[4] I deal first with the two interlocutory applications under matter number D67/21 –
the reinstatement of the review application and/or retrieval application o f the file
from the archives and the application to condone the late delivery of the review
application .
Reinstatement and/or retrieval application
[5] The bargaining council served two notice s in terms of Rule 7A(5) of the Labour
Court Rules3 on 15 April and 14 June 2021 , respectively. The record was uplifted
on 29 June 2021 , and a quot e to transcribe the record from the transcription
service provider was accepted on 26 July 2021.
[6] On 3 August 2021, the State Attorney requested an extension to file the record
and stated in the email to Moore that should he not respond to t he request, they
would accept the non -response as an extension. There was no response to the
email.
[7] The record was filed on 22 October 2021. The 60-day period from 15 April 2021
expired on 5 July 2021 , and therefore , the record would have been filed three
and a half months late. If the 60 -day period is calculated from 14 June 2021 ,
when the full record was filed by the bargaining council , 1 September 2021 would
be the last day of filing the record , and the delay would be seven weeks . In my
view, the 60 -day period should be calculated from 14 June 2021 , and therefore ,
the record was filed seven weeks outside the 60 -day period .
[8] The Court does not accept that the consent was given by virtue of an email dated
3 August 202 1. The State Attorney does not believe that Moore granted consent ,
otherwise this application for reinstatement would not have been necessary.
[9] The Department of Correctional Services ( DCS ) also seeks to retrieve the file
from the archives . The notice in terms of Rule 7A(8) of the Labour Court Rules
was filed on 4 March 202 2, which was within the 12 -month period from the date
when the review application was properly delivered, which is 15 April 2021. It is,
howeve r, common cause that the Registrar was not notified within the 12 -month
period that the matter was ready to be allocated a date. In the exercise of my
3 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect from
July 2024 .
discretion, and considering the absence of any pleaded prejudice on the part of
Moore, this non -complianc e should be condoned.
[10] Having considered the explanation proffered by the DCS in filing the record
outside the prescribed period, the length of the delay which is not excessive and
the prospects of success which shall be addressed later in th is judgment, I am of
the view that it is in the interest of justice to reinstate the review application
and/or t o retriev e the file from the archives .
Condonation application
[11] The award was sent to the parties by email on 11 November 2020. The DCS
issued an instruction to challenge the award on 11 December 2020. The State
Attorney ’s office was instructed on 17 December 2020 in terms of a letter dated
14 December 2020.
[12] The State Attorney ’s official responsible for the ma tter was on leave and only
returned to the office on 18 January 2021. The process to appoint counsel was
concluded on 21 January 2021. Counsel consulted with the client on 3 February
2021 . Although the founding affidavit was signed on 5 February 2021, the notice
of motion was signed on 19 February 2021 , and the application was served on
19 February 2021 and filed on 26 February 2021.
[13] Moore, in his opposing affidavit signed on 16 February 2024 and filed on 20
February 2024, contends that the application was filed on 9 April 2021 without
service on him o r his trade union. He contends further that the review application
was filed 14 weeks outside the prescribed six -week period
[14] The six -week period from 11 November 202 0 expired on 23 December 202 0.
The affidavit of service shows that the review application was served on 19
February 2021 to the bargaining council and trevor.moor@dc.gov.za . This latter
email address, which purports to be that of Moore , is incorrect. On 9 April 2021,
the State Attorney also served the application , albeit referred to as a “notice of
motion – stay” on Moore’s correct email address at trevor.moore@dcs.gov.za .
[15] Therefore, it is obvious that the review application was served using an incorrect
email address on 19 February 2021 and was later served on 9 April 2021. The
date of service is therefore 9 April 2021 and the rev iew application was therefore
served 15 weeks outside the prescribed period.
[16] The delay has in my view , been adequately explained . The DCS has reasonable
prospects of success as it shall appear later in the judgment . There is in my view
no prejudice that Moore would suffer if the late delivery of the review application
is condoned . Any prejudice Moore might suffer would be addressed by an award
of backpay at the bargaining council should he succeed in his claim . Accordingly,
the interest of justice dictates that the application for condonation be granted.
Material facts
D211 0/18
[17] In this application, the applicant is the Member of Executive for the Department
of Health, Kwa -Zulu Natal ( Health Department ). The application was brought to
review and set aside the award dated 20 September 2018 issued under case
number PSHS 57-18/19. Here , the employee, represented by her trade union, the
Democratic Nursing Organisation of South Africa (DENOSA), referred an
interpretation and /or application dispute to the bargaining council claiming that
she was appointed on an incorrect salary notch in terms of the Public Health and
Social Development Sectoral Bargaining Council ( PHSDSBC ) Resolution 3 of
2007. This resolution came into effect on 1 July 2007. The date of her
appointment is 1 October 2011.
[18] The dispute was referred on or about 13 April 2018 , and the em ployee indicated
that the dispute arose on 15 March 2018. In her referral form, t he employee
summarised the facts of the matter as follows :
‘The employer is disputing that my notch was calculated accordingly . The
employer maintained that they appointed our memb ers in the correct
salary level. Our view is that the employer did not calculate the years of
experience as stated in the Resolution page 4.’
[19] The relief s ought by King was to be placed “on the correct salary level
retrospectively ”. The correct salary level referred to is notch 3 .
[20] She claimed that she should have been appointed on notch 3 and relied
exclusively on paragraph 2.1 of Annexure A to Resolution 3 of 2007 , which deals
with “career streams, appointment requirements , recognition of experience on
appointment and grade progression/promotion requirements” . Clause 2.1 deals
with the job title, Professional Nurse Grade 1 (Speciality Nurse) . The
qualifications required for appointment are:
‘Basic qualification accredited with the SANC in terms of Government
Notice 425 (i.e. diploma/degree in nursing) or equivalent qualification that
allows registration with the SANC as a Professiona l Nurse plus a post -
basic nursing qualification, with durati on of at least 1 year, accredited with
the SANC in ter ms of Government Notice No R 212 in the relevant
speciality.’
[21] For experience, the requirement is a minimum of four years
“appropriate/recognisable experience in nursing after registration as Professional
Nurse with the SANC in General Nursing” .
[22] At the commencement of the proceedings, the commissioner introduced the
matter and allowed the respective representatives to introduce themselves. He
then confirmed that the parties have been correctly cited and that he was:
‘satisfied that the bargaining [council ] had jurisdiction to hear this dispute .
The dispute on hand is about whether or not the applicant qualifies for
appointment to the post of professional nurse speciality or not … The
remedy being sought is that of payment of three notches to the applicant
with effect from 1st of October 2011 … The only issue in dispute is whether
or not the applicant qualifies for appointment to notch three … R170
244.00 .’ [Emphasis added]
[23] It is common cause that t he employee was appointed as a nurse with effect from
1 October 2011 , on salary notch 1 . She testified as follows about when she
became aggrieved:
‘L KING : Like I said, when, on appointment , I was under the
impression that everything was as they agreed, as they had
said to us that they take the experience into consideration. It
was only at , when we got our new increases in 2012 and
they gave us a copy of the salary scale that I realised I wa s
on the same notch as people that had started, that had just
qualified in nursing, people that had just finished four years
now and because they had speciality they started on the
same level as me. So I went and I enquired about it.
DK MSOMI : You started enquiring in 2012?
L KING : Yes.’
[24] As is apparent, the employee became aware of the alleged incorrect salary level
in 2012. She, however , referred the dispute in April 2018, claiming that the
dispute arose in March 2018. In its closing argument before the commissioner,
the Health Department submitted that :
‘considering the years involved in the matter it [the dispute] should not
have been c onsidered for the sitting as it happened about 8 (eight) years
ago which leads to the question of whether the Commissioner has the
jurisdiction to arbitrate the matter.’
[25] The commissioner did not deal with the above point. The commissioner
determined the is sue before him to be whether the employee was correctly
appointed on level 3, notch 1 or whether she qualified to be appointed on notch 3
of level 3 . He concluded that the Health Department interpreted the resolution
incorrectly and that the employee should have been appointed on salary notch 3
of post level 3. The commissioner concluded :
‘The Respondent, Department of Health – KwaZulu Nata l, is hereby
directed to appoint the [employee], King L to the po st of Professional
Nurse Grade 1 (Speciality Nursing), on notch 3 of post level 3, with effect
from 1 October 2011. ’
D67/21
[26] In this application , the employee, represented by the Public Servants Association
(PSA), referred an interpretation and/or application dispute on or about 26 July
2019 . It was alleged that the dispute was about the interpretation and/or
application of paragraph 11 of the GPSSBC Resolution 2 of 2009 read with
Departmental Bargaining Chamber (DBC) Settlement Agreement 1 of 2016.
Clause 11 of Resolution 2 of 2009 provides that:
’11.1 With effect from 1 April 2010, the recalculation of salary notch
position shall be based on DCS experience as at 30 June 2009
based on years of experience obtained in addition to the
experience required for appointment on that level. The recalculation
of salary notch will be limited to officials in the production leve ls
(current salary levels 3 -8).
11.2 Translation of experience shall be recognized as 1 notch for every
5 years work ed, calculated from the date of employment in DCS
based on the new notch of the OSD.
11.3 The employer shall introduce a basis for salary recognition for
relevant experience on appointment for employees who are
appointed from outside the pub lic service in production posts.’
[27] On 21 November 2016 , the DCS and trade unions reached an agreement ,
recorded as “Agreement on the implementation of clause 11 of General Public
Service Sector Bargaining Council (GPSSBC) Resolution 2 of 2008: Recognition
of Experience (P hase 2) of the Occupation Specific Dispensation (OSD) for
Correctiona l Services Officials ” (settlement agreement).
[28] The settlement agreement makes it clear that it was concluded after the different
interpretation s on the wording of clause 11.1 of Resolution 2 of 200 8, which
deals with the recognition of experience in addition to the experience required for
appointment. The parties agreed that the experience required for appointment on
the various pre -OSD salary levels would be as follows:
28.1 Salary le vels 3 – 5: zero years;
28.2 Salary level 6: three years;
28.3 Salary level 7: five years; and
28.4 Salary level 8: seven years.
[29] Clause 3.2 of the settlement agreement provides that the above years of
experience should be deducted from the qualifying employee s’ total years of
experience and the remaining years would then be used for the purpose of
calculation o f the employees’ correct notch calculated from the new notch of the
OSD that the empl oyee was translated to during the implementation of the first
phase. Clause 3.4 provides that:
‘Qualifying correctional officials who were promoted or changed
occupations or moved to another salary dispensation during the period 1
April 2010 to 31 October 2016 shall be paid a pro -rated amount for the
period that they qualified for the OSD Second Phase translation,
depending on their date of promotion or charge of occupation or move to
another salary dispensation.’
[30] Clause 4 of the settlement agreement deals with the payment of qualifying
employees. Clause 4.1 provides that all qualifying employees who were on salary
levels 3 to 8 as at 30 June 2009 should be placed on the :
‘correct notches they would have been on as at 1 October 2016, had they
been translated to their correct Second Phase OSD notches on 1 April
2010.’
[31] Clause 5 deals with the implementation of the settlement agreement , which the
parties agreed could be made an arbitration award . It provides that the targeted
date for the placing of all qualifying employees “on the notches they would have
been on as at 1 October 2016 had they been translated to their correct Second
Phase OSD notches on 1 April 2010” is 15 February 2017.
[32] The employee is a n Assistant Director: Employee Relations . On 3 June 2018, he
lodged a grievance seeking rectification of his salary and backpay. The nature of
the dispute was formulated as follows:
‘Prior to my promotion on 1st November 2011 to Senior Adminis trative
Officer I was a CB 1 -3 with OSD my yearly salary notch was R205 374 but
was supposed to have been R223 401.00 after rectification of the OSD
resolution 2 of 2009, this salary notch was only rectified in 2018 and if it
was rectified as per the resolution in 2010 I would [have] received the
correct salary scale as per my promotion which stated that I had to receive
one notch above the notch I was on , this being R224 370.00 , which
means that my notch with salary increases would have been R361 623.00
in 2018 and that my starting notch with my promotion in 2018 would have
been R361 623.00 and not R356 289.00.’ [Emphasis added]
[33] The dispute allegedly arose on 22 July 2019. The employee stated that he
lodged a grievance on 3 June 2019 and was informed on 26 June 2019 that his
salary would be rectified. He was subsequently requested to submit a written
report , which he did. The DCS declined his request or dismissed his grievance.
[34] The employee sought the following relief or outcome :
‘That the Department [of] Correctional Services adhere to their own
Policies as well as Resolution 2 of 2009 and rectify my salary accordingly
with effect 1 November 2011 and that I receive back [pay of] the amount
under paid to me from 1 November 2011 with interest.’ [Emphasis added]
[35] The DCS raised two jurisdictional points at the bargaining council, which were
dismissed by the commissioner. The jurisdictional points had nothing to do with
the delay and /or the true nature of the dispute or the issues raised by this Court.
The DCS did not seek to review these rulings.
[36] On 11 N ovember 202 0, the commissioner issued an award in favour of the
employee. He ruled that :
’31. The Respondent had interpreted clause 3 .4 and paid Moore the
pro-rated amount that he qualified for the period for the OSD
Second Phase translation. However , there is no merit in the
Respondent’s contention that the Applicant did not qualify when
interpreting and applying the law or the provisi ons of the Agreement
and I fail to appreciate what was expected of the Commissioner
when the provisions of clause 4.1 (Payment) were clear and
unambiguous as the Respondent had calculated the full Backdated
Salary (A162) and had approved and signed off . The Respondent
had failed to consider Moore as per clause 4.1, notwithstanding he
met all the requirements of DBC Settlement Agreement (1 of 2016).
32. It is therefore ordered that the Department of Correctional Services
(Respondent) implement the follow ing within 30 days from receipt
of this award:
32.1 Moore ’s salary notch on PERSA L, when promoted to SAO,
be rectified with effect [from] 1 Nove mber 2011 which should
have been R223 401.00 plus one notch to reflect R224
370.00 and the rectifications with increased for every
subsequent year also reflect on PERSAL .
32.2 Moore receive back pay for the period 1 November 2011 to
31 May 2018 amounting to R63 830.75 with interest …’
[Emphasis added]
Analysis
Legal principles
[37] In D2110/18, the employee, King, was appointed with effect from 1 October 2011
and sought backpay from that date. King’s dispute was referred to the bargaining
council on 13 April 2018, claiming that the dispute arose on 15 March 2018.
[38] In D67/20, the employee , Moore , seeks backpay from November 2011. Moore
referred his dispute to the bargaining council on 26 July 2019, claiming that the
dispute arose on 22 July 20 19.
[39] The employee s’ respective disputes are characterised as interpretation and/or
application disputes in terms of s ection 24 of the LRA . This section provides that:
‘Disputes about collective agreements
‘(1) Every collective agreement excluding an agency shop agreement
concluded in terms of section 25 or a closed shop agreement
concluded in terms of section 26 or a settlement agreement
contemplated in either section 142A or 158(1 )(c), must provide for a
procedure to resolve any dispute about the interpretation or
application of the collective agreement . The procedure must first
require the parties to attempt to resolve the dispute through
conciliation and, if the dispute remains unresolved, to resolve it
through arbitration.
(2) If there is a dispute about the interpretation or application of a
collective agreement , any party to the dispute may refer t he dispute
in writing to the Commission if –
(a) the collective agreement does not provide for a procedure as
required by subsection (1);
(b) the procedure provided for in the collective agreement is not
operative; or
(c) any party to the collective agree ment has frustrated the
resolution of the dispute in terms of the collective
agreement .’
[40] In both matters, the collective agreements or resolutions made provision that the
interpretation and/or application of the agreements should be dealt with in terms
of the dispute resolution procedure of the bargaining council. Section 24 does not
prescribe the time period when a dispute should be referred to the bargaining
council. The respective resolutions do not set out the time period for the referral
of disputes arising out of the implementation thereof.
[41] In Tshambi , the LAC was confronted with a matter which dealt with a dispute that
was referred to the bargaining council as one of interpretation and/or application
of a collective agreement. The LAC made two fundamental findings – first, it
reiterated the duties of the commissioner insofar as the nature of the dispute is
concerned , and second , it decided on the issue of delay in referring interpretation
and application disputes .
[42] On the duties of the commissioner, the LAC held that:
‘An arbitrator is required to determine the true dispute between the parties.
To that end, it is necessary to establish the relevant facts and con strue the
category of dispute correctly. An arbitrator must make an objective finding
about what is the dispute to be determined. This court in Wardlaw v
Supreme Mouldings (Pty) Ltd (Wardlaw ), addressed directly the question
of whether the employee's characterisation of a dispute should enjoy
deference and rejected that approach. Distinguishing the formalistic
school of thought from the substantive school of thought, this court held
that the latter should prevail. As a result, in Wardlaw , an arbitrator was
held to have incorrectly assumed jurisdiction over a dispute that was about
an automatically unfair dismissal, a category of dispute reserved for
adjudication by the Labour Court. The Constitutional Court disposed of
this issue in Commercia l Workers Union of SA v Tao Ying Industries &
others :
‘A commissioner must, as the LRA requires, “deal with the
substantial merits of the dispute”. This can only be done by
ascertaining the real dispute between the parties. In deciding what
the real disput e between the parties is, a commissioner is not
necessarily bound by what the legal representatives say the dispute
is. The labels that parties attach to a dispute cannot change its
underlying nature. A commissioner is required to take all the facts
into c onsideration including the description of the nature of the
dispute, the outcome requested by the union and the evidence
presented during the arbitration. What must be borne in mind is that
there is no provision for pleadings in the arbitration process whi ch
helps to define disputes in civil litigation. Indeed, the material that a
commissioner will have prior to a hearing will consist of standard
forms which record the nature of the dispute and the desired
outcome. The informal nature of the arbitration pro cess permits a
commissioner to determine what the real dispute between the
parties is on a consideration of all the facts. The dispute between
the parties may only emerge once all the evidence is in. ’
That approach has been reaffirmed by this court in National Union of
Metalworkers of SA on behalf of Sinuko v Powertech Transformers (DPM)
& others (2014) 35 ILJ 954 (LAC) at paras 16 -21 per Coppin JA.
What is a 'dispute' per se, and how one is to recognise it, demands
scrutiny. Logically, a dispute requires, at minimum, a difference of opinion
about a ques tion. A dispute about the interpretation of a collective
agreement requires, at minimum, a difference of opinion about what a
provision of the agreement means. A dispute about the application of a
collective agreement requires, at minimum, a difference of opinion about
whether it can be invoked …
The idea that the breach of a right that derives from a collective
agreement is automatically a dispute contemplated by s 24 is wrong.
Section 23, which provides for the enforceability of collective agreements,
and s 24 need to be read together. Together they create the legal edifice
for the legal effect of collective agreements and certain disputes which
take place about them. Sections 23 and 24 are located in chapter III of the
LRA. That chapter dea ls with collective bargaining. Part A of chapter III
addresses organisational rights, and part B addresses collective
agreements. Sections 23 and 24 are in part B. Parts C and D address
bargaining councils. It is plain that s 24 is a procedure to oil the w heels of
the collective bargaining process and an efficient resolution of disputes
about collective agreements. ’4
[43] Referring to the phrase “interpretation or application ”, the LAC said that these
two terms a re not disjunctive, but must be read as being rel ated, which refer to
disputes about what the agreement means and what it is applicable to.5
[44] The LAC then dealt with the issue of delay. During arbitration proceedings in
Tsham bi, the employ er argued that the union and its member referred the
dispute inordinate ly late without condonation application. Further, that the referral
ought to have been made within 90 days, as prescribed by s ection 191(1 )(b)(ii) of
the L RA which regulate s the ti me periods for the referral of disputes abou t unfair
dismissals and unfair labour practices . Therefore, so the employer argued, the
referral was made outside the period without a condonation application. The
union and the employee , in response, argued tha t there is no time period to refer
interpretation and application dispute s to the bargaining council and that the
referral was made within a reasonable time. The reasonable time referred to by
the union and employee w as 692 day s. The LAC held:
4 Ibid at paras 16 – 19; see also Public Servants Association on behalf of Strauss & others v Minister of
Public Works NO & others (2013) 34 ILJ 2929 (LC) ; [2013] 7 BLLR 710 (LC) (Strauss) , where this Court
held at para 17 that “[e]ven where a party had referred an interpreta tion and application dispute to a
bargaining council, it was incumbent on the arbitrator to decide what the real dispute was ”.
5 Ibid at para 25.
‘A reading of the ruling evidences that the arb itrator did not interrogate
whether the appellant's characterisation of his dispute was, objectively,
correct. Rather, after correctly disposing of the distracting irrelevancies
advanced by the respondent, the arbitrator took the appellant's
characterisati on at face value.
Upon the uninvestigated premise that the dispute that had been referred
to him was indeed one contemplated by s 24, the arbitrator gave a ruling
about the question of the alleged delay. His rationale is stated in paras 7 -8
of the ruling:
‘The claim having its foundation in the agreement has therefore
been characterised as an "interpretation/application" dispute. That
being said, applicant's claim is, nevertheless, essentially a claim of
a debt. As such applicant's claim is subject to the p rovisions of the
Prescription Act 68 of 1969 . The provisions of that Act stipulate that
a debt is prescribed by prescription three years after same
becomes due. ... This dispute (ie a claim fo r a debt arising from the
agreement) was referred to this council well within the three -year
period as stipulated in the [Act] and has therefore not prescribed.
When a period is prescribed for the referral of a dispute, as is the
case in this dispute, the unreasonable delay rule does not apply. ’
It is plain that the arbitrator was muddled. He did not make a decision
whether the dispute had been referred within a reasonable time; rather he
concluded that a period had been prescribed by the Prescription Act f or
this particular dispute and that the period had not yet elapsed. ’6
[45] The LAC concluded:
‘It is not strictly necessary to address the arbitrator's flawed rationale that
because a dispute, purportedly contemplated by s 24, resembles a money
6 Ibid at paras 11 - 13.
claim, and because s 24 does not prescribe a time period for referral,
therefore that dispute is subject t o a prescribed period for referral as
determined by the Prescription Act. Nevertheless, it is appropriate to deal
with such flawed thinking in order to inhibit any repetition. Axiomatically,
the arbitrator missed the point about determining a reasonable pe riod by
thinking the Prescription Act prescribed a period. Perhaps a generous
reading of his ruling could be that, by analogy, inspiration could be derived
from the laws about prescription of money claims to assess
reasonableness. However, what constitutes a reasonable time within
which to refer a true labour dispute is dictated by the expectations to be
derived from the LRA not from civil litigation . A true money claim belongs
to civil litigation and insofar as such a claim is covered by s 77 of the Basic
Conditions of Employment Act 75 of 1997, which confers concurrent
jurisdiction on the Labour Court to hear certain civil claims, the Labour
Court could hear the case and the Prescription Act would prevail in such a
context. The use of analogy must be tempe red by an appreciation of the
context and functionality of the procedures and remedies provided in the
LRA. In true labour disputes, the provisions of s 191(1) of the LRA are a
more obvious general yardstick to test what is a reasonable time for a
referral . The absence of a prescribed period does not automatically
license a longer period than is the norm for other labour disputes to be
referred. In labour disputes, expedition is the watchword, not because that
is simply a good idea, but because the prejudic e of delay in matters
concerning employment often is not capable of remedial action. This
applies to both employees and employers . The appropriate enquiry is into
the history of the engagement between the parties about the controversy,
and the elapse of ti me since engagement to resolve the controversy
ceased . Self -evidently, the ultimate decision on reasonableness has to be
fact-specific. A lapse of 692 days in respect of a failure to pay a salary is a
remarkably long time. On this record, nothing said prov ides a convincing
rationale why the delay was unavoidable. ’7 [Emphasis added]
The delay & jurisdiction
[46] Regardless of the true nature of the dispute, the employees were , in my view ,
required to apply for indulgence. It follows from the LAC decision in Tsha mbi that
despite section 24 not prescribing the period within which a n interpretation or
application dispute may be referred , such a dispute must be referred within a
reasonable time and that sectio n 191(1) of the LRA provides a yardstick to test
what is a reasonable time for a referral . Section 191(1) prescrib es a maximum
period of 90 days to refer a dispute relating to an unfair conduct on the part of the
employer.
[47] An enquiry into whether an interpretation or application dispute was referred
within a rea sonable time would consider the nature of the claim or dispute
referred by the employee, the history of the engagement between the parties on
the subject matter, the time elapse d to attempt to resolve the matter and the time
it took the employee to refer t he dispute to the bargaining council after the parties
ceased to engage . The whole period must, in my view be adequately explained
and accounted for.
[48] In both applications, the commissioners failed to enquire whether they had the
jurisdiction to arbitrate t he disputes. In D2110/18, the commissioner did not deal
with the issue despite it being raised, albeit belatedly, in the Health Department’s
closing arguments. Regardless, the commissioner should have been alert to this
issue if he properly construed the r eferral form and King’s evidence that she had
known of the issue since 2012.
7 Ibid at para 32.
[49] In D67/21, Moore’s complaint appears to have been brought about by the
promotion. On the face of his referral, Moore’ s complaint , properly construed, is
that when he was promoted on 1 November 2011, he was not remunerated in
terms of the correct level or notch. He acknowledges that the DCS made the
necessary adjudgment on his salary in accordance w ith the settlement
agreement concluded in November 2016 . The refore, on the face of the
documents and his evidence, the cause of action for his claim arose in November
2011. The commissioner had awarded relief with retrospective effect from 1
November 2011.
[50] Had the commissioners in both matter s properly construed the issues before
them with reference to the referral, the documentary and oral evidence and the
seven or eight years retrospective relief sought and awarded , they would have
enquired whether they were indeed clothed with the necessary jurisdiction to
arbitr ate the disputes and t he power to grant the relief sough t. Consequently,
they would have required the parties to address them on bargaining council’s
jurisdiction to arbitrate the disputes.
Remedy and c onclusion
[51] If employees are to refer these interpretation or application disputes in terms of
section 24 and the disputes are dealt with by the commissioners without
considering whether the disputes were referred within a reasonable time, that
would mean that even after 20 years of t he conclusion of the collective
agreement, employees would remain free to obtain a hearing from the bargaining
council without the need to explain why they had taken that long to refer the ir
dispute s. That in my view , would be un tenable and against the spi rit of the LRA
to speedily and efficiently resolve disputes between the employee and the
employer.
[52] The commissioners have , therefore committed a material error and misdirection
which vitiate the awards . They were required to enquire into this significant
aspect to ensure that they issue d awards that are within their jurisdiction and
powers. The employees in both applications were required, based on the fact
that they referred to what they characterised as interpretation or app lication
disputes, to demonstrate either during evidence or by way of affidavits that their
disputes were referred within a reasonable time and that the commissioner
should overlook the delay. The awards fall to be reviewed and set aside on this
basis.
[53] In the premises, the following order is made:
Order :
D2110/18
1. The arbitration award dated 20 September 2018 issued by the second
respondent under case number PSHS57 -18/19 is reviewed and set aside.
2. The matter is remitted to the third respondent for a hearing de novo before
a commissioner other than the second respondent , which will include the
determination of the third respondent’ s jurisdiction to arbitrate the dispute .
3. The is no order as to costs.
D67/21
4. The review application is rei nstated and /or retrieved from the archives and
the applicant is granted leave to proceed with the application.
5. The late delivery of the review application is condoned .
6. The arbitration award dated 16 October 2020 issued by the first
respondent under case number GPBC1476/2019 is reviewed and set
aside.
7. The matter is remitted to the third respondent for a hearing de novo before
a commissioner other than the first respondent , which will include the
determination of the third respondent’s jurisdict ion to arbitrate the dispute .
8. There is no order as to costs.
________ _______________
M. Makhura
Judge of the Labour Court of South Africa
Appearances:
D2110/18 :
For the Applicant : Ms N. Govender
Instructed by: The State Attorney, Durban
For the 1st Respondent : Mr D. Carls of Carls Attorneys
D67/21:
For the Applicant: Mr N.G. Winfred
Instructed by : The State Attorney, Durban
For the 2nd Respondent : Mr S. Morgan
Instructed by : Logan Naidu Attorneys