IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J496/97
In the matter between
Naomi Nidia van Heerden Applicant
and
Spes Bona Financial Administrators (Pty) Ltd Respondent
JUDGMENT
JALI AJ
[1] This matter came before me as a referral in terms of section 191(5)(b)(ii) of the
Labour Relations Act 66 of 1995 (“the Act”) for me to adjudicate on the fairness of the
Applicant’s dismissal by the Respondent based on the Respondent’s operational
requirements.
[2] At the beginning of the proceedings the Respondent raised a point in limine stating
that the court does not have jurisdiction because the dispute before this court, as alleged
by the Applicant, is one which should be arbitrated by the Commission for
Conciliation, Mediation and Arbitration (“the CCMA”).
[3] The facts of the matter, briefly, are as follows. The Applicant's services with the
Respondent were terminated on 15 January 1997. She was paid up until the end of
February 1997. She referred the dispute in relation to her dismissal to the CCMA on 6
February 1997. Conciliation failed to resolve the dispute and a certificate
of outcome was issued on 5 May 1997.
4] The Applicant then referred the dispute to the CCMA for arbitration and a
Commissioner, Professor Basson, heard both parties on 13 June 1997.
Professor Basson found that she had no jurisdiction to arbitrate on the
issue on the basis that the dispute referred to her involved retrenchment.
No record exists of the proceedings before Professor Basson except for a
computer printout which formed part of the Respondent's bundle. It was
apparent that the said computer printout was obtained from the CCMA
administration offices. It could not be said to be either an award or a
ruling by Professor Basson. For one reason or the other, which remains
unclear to this Court, the Commissioner either advised or directed the
parties to come to the Labour Court instead of arbitrating the dispute
herself.
[5] At the time when the matter was referred to the CCMA, according to the facts
which have been put before me, the Applicant did not know the reason for the
dismissal. In her referral form to the CCMA (Form LRA 7.11), the Applicant
couched the dispute as follows: “Unfair dismissal of Applicant on
16/01/97". In her statement of case the Applicant also stated that on 16
January 1997 she received a letter of the termination of her employment
without any prior notification. The said letter of termination did not specify
any reasons for the termination.
[6] In response to the Applicant’s statement of claim the Respondent filed a statement
of defence in which it alleged that the Applicant had been retrenched. In response to
that, the Applicant filed a reply to the statement of defence in which she stated: "the
Applicant denies that she was retrenched as alleged and puts the Respondent to the
proof thereof". Furthermore, she alleged that she was told by a certain Mr Grabe that
due to her negative behaviour she had the option either to resign or to leave. That is the
case which is before me, according to the papers.
[7] I enquired from the representatives of both parties as to the nature of the dispute,
and the Applicant's representative confirmed from the Bar that this is an unfair
dismissal case, and not a dismissal based on operational requirements or
an automatically unfair dismissal as defined in the Act.
[8] I turn now to the law. Section 191(5) of the Labour Relations Act states:
If a council or a commissioner has certified that the dispute remains unresolved, or if
30 days have expired since the council or the Commission received the referral and
the dispute remains unresolved
(a) the council or the Commission must arbitrate the dispute at the request of the
employee if
(I) the employee has alleged that the reason for the dismissal is related to the
employee’s conduct or capacity, unless paragraph (b)(iii) applies;
(ii) ...
(iii) the employee does not know the reason for dismissal; or
(b) the employee may refer the dispute to the Labour Court for adjudication if the
employee has alleged that the reason for the dismissal is
(I) automatically unfair;
(ii) based on the employer's operational requirements; ...
(my own emphasis)
[9] I will only refer to two subsections because those are the only ones which may be
relevant to this particular case. In both those subsections, (a) and (b) of section 191(5),
the Court appears to be to directed to consider what the employee has alleged the
dispute to be. The jurisdiction to adjudicate a dispute is derived by this Court from what
the employee(s) allege to be the reason for the dismissal. In this regard I would also
like to make reference to a case which is exactly in point, decided by Zondo J in the
matter of NEHAWU v Pressing Metal Industries [1998] 10 BLLR 1035 (LC). The
dispute referral in terms of s191(5) is employee driven. In other words, the
employee, effectively, has the option of choosing the forum by the
manner in which he or she frames his or her dispute. See also Dempster
v Kahn NO & Others (1998) 19 ILJ 1475 (LC) at 1476D.
[10] I have also come across a judgment of Revelas J in the matter of Future Mining
(Pty) Ltd v CCMA & Others [1998] 11 BLLR 1127 (LC), in which the Court, whilst
considering the provisions of s191(5) of the Act, held that a Commissioner is obliged to
attempt to determine the “ real issue ” in dispute when considering his or her jurisdiction.
With respect, I cannot agree with Judge Revelas in this regard, for reasons set out
below.
[11] The language of s191(5) is clear in this regard. The use of the phrase “the
employee has alleged” by the legislature clearly indicates that the matter is employee
driven, and that what has been alleged by the employee, the Applicant in the matter,
should decide the issue of jurisdiction. Any other interpretation of the section ignores
the unambiguous language of the statute. It is trite that in interpreting statutes the Court
may not ignore the plain meaning of the words before it. See Ceramic Industries Ltd t/a
Betta Sanitaryware v National Construction Building & Allied workers Union (2)
(1997) 18 ILJ 671 (LAC) per Froneman DJP.
[12] I do believe that there may be a number of situations in which the
Commissioner will not be in a position to establish the real reason for the dismissal. In
conducting the said preliminary enquiry, three scenarios might emerge: (1) there might
be a meeting of the minds between the parties as to the real reason; (2) the employee
might insist that he or she still does not know the real reason (perhaps even despite the
allegations of the employer); or (3) there may be mutually incompatible allegations as
to the real reason.
[13] In my opinion, the view expressed in Future Mining (Pty) Ltd v CCMA &
Others, supra, is correct insofar as the real reason for the dismissal is
apparent or can be established in the preliminary enquiry conducted by
the Commissioner into the matter. Furthermore, the facts in the Future
Mining case are distinguishable from the facts before me, as in casu the
reason is not apparent from the CCMA records and the views of the
parties are still divergent.
[14] It is incorrect for the Commissioner to take the reason given by the Respondent
where the Applicant says he doesn’t know the reason for the dismissal. Under these
circumstances he should arbitrate the dispute in terms of section 191(5)(a)(iii). It is
equally incorrect for the Commissioner to prefer the reason given by the Respondent
over that of the Applicant where these are conflicting views as to the “real reason” for
the dismissal. In this case, the Respondent submitted that the Applicant had been
dismissed for operational reasons. The Applicant was adamant that she was not and that
operational reasons were never mentioned when she was dismissed. Obviously these
are two mutually incompatible arguments.
[15] I am of the opinion that in a situation where there has been no meeting of the
minds after the Commissioner has conducted a preliminary enquiry to establish his or
her jurisdiction, s191(5) of the Act directs the Commissioner to be guided by what the
employee has alleged as the reason for dismissal. The situation where there is no
meeting of the minds, in my view, falls directly within the ambit of s191(5).
[16] In her CCMA form LRA 7.11 the Applicant, in dealing with the special features
of the dispute, referred to having had to go on leave to undergo two operations and
wasn’t sure whether she was being discriminated against because of that. This, in my
opinion, is another indication that the employee did not know the reason for the
dismissal. This should have rung alarm bells for the Commissioner, and she should not
simply have accepted the Respondent’s allegations as the real reasons behind the
dismissal , if she did . There is no indication that the Commissioner in this
case made such an enquiry before referring the matter to the Labour
Court. Accordingly, the allegation by the employee that she does not
know the reason for her dismissal must form the basis for any
determination of jurisdiction.
[17] I have also considered the judgment in ZeunaStarker BOP (Pty) Ltd v NUMSA
[1998] 11 BLLR 1110 (LAC) in which Myburgh JP, while considering the
provisions of Item 21 Part E to Schedule 7 of the Act (at 1112DG), held
that a Commissioner is obliged to attempt to determine the real issue in
dispute when considering his or her jurisdiction.
[18] I am of the opinion that this judgment is distinguishable from the case before
me, as it deals with a totally different provision of the Act. The language of the statute
in Item 21, Part E, of Schedule 7 differs from that employed in s191(5), in that the word
“alleged” is absent from the former provision. Accordingly, any Commissioner
discharging his duties in terms of the former section should endeavour to establish the
real dispute before him or her.
[19] On the papers before me the dispute before me relates to an unfair
dismissal, with no further particularity, as the Applicant alleges that she
was not told of the reason for her dismissal. She does, however,
speculate in her papers what the reason might have been, which still
leaves the matter as an unfair dismissal case. This then brings me to the
jurisdiction of the Court to deal with such a matter.
[20] This court derives its jurisdiction from the Labour Relations Act. Section 157(1)
thereof stipulates the following:
Jurisdiction of Labour Court
(1) Subject to the Constitution and section 173, and except where this Act
provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters
that elsewhere in terms of this Act or in terms of any other law are to be determined by
the Labour Court.
[21] Section 157(5) states that:
Except as provided in section 158(2), the Labour Court does not have jurisdiction to
adjudicate an unresolved dispute if this Act requires the dispute to be resolved through
arbitration.
(My emphasis)
[22] This court does not have jurisdiction to hear an unfair dismissal dispute. It is
clear from s191(5)(a) of the Act that disputes relating to misconduct or capacity or
where the Applicant alleges that he or she is unaware of the reason for the dispute
(unfair dismissal dispute) should be arbitrated by the CCMA. In this
regard see Avroy Shlain Cosmetics (Pty) Ltd v Kok & Another [1997] 12
BLLR 1556 (LC).
[1]
[23] It is clear to me that the Applicant did not refer this matter to the correct forum,
if one takes into consideration what the Applicant has alleged in her statement of case
to be the reason for dismissal or her lack of knowledge of the actual reason.
[24] The Respondent’s Counsel submitted that the matter should be dismissed with
costs. Counsel for the Applicant, on the other hand, argued that I should proceed to hear
the matter, as the parties had been referred to this Court by the CCMA. Section 158(2)
states that:
if at any stage a dispute has been referred to the Labour Court, it becomes apparent
that the dispute ought to have been referred to arbitration, the Court may
(a) stay the proceedings and refer the dispute to arbitration; or
(b) with the consent of the parties and if it is expedient to do so, continue with the
proceedings with the Court sitting as an arbitrator, in which case the Court may only
make any order that a commissioner or arbitrator would have been entitled to make.
[25] Subsection (b) makes provision for a judge of this Court to sit as an arbitrator
with the consent of the parties. I do not intend seeking such consent from the parties
and exercising that power. However subsection (a) states that I am entitled stay the
proceedings and refer the matter back to the CCMA for arbitration. This seems the
appropriate course of action to follow in these circumstances.
[26] I accordingly order that:
22.1 the proceedings in this matter be stayed;
22.2 the matter is to be referred back to the CCMA for arbitration;
22.3 costs of today are reserved.
T. JALI
Acting Judge of the Labour Court
DATE OF HEARING: 10 May 1999
DATE OF JUDGMENT: 10 May 1999
DATE OF FULL REASONS: 24 May 1999
For the Applicant: Adv M Upton instructed by Peet van Zyl
For the Respondent: Adv P Ellis instructed by Laas, Doman & Partners