IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG Case No: J1459/98
In the matter between:
M R Kgaphola Applicant
and
University of the North Respondent
JUDGMENT
Stelzner AJ
[1] This is a ruling on a point in limine raised by the respondent in an application
arising out of the alleged unfair constructive dismissal of the applicant. The matter
came before the Labour Court for trial by way of a referral from the Director of the
CCMA under the provisions of section 191(6) of the Labour Relations Act 66 of 1995
(“the 1995 Act”), in lieu of an arbitration under the auspices of the CCMA.
Respondent’s contention is that this court does not have jurisdiction to determine the
dispute because the dispute arose prior to the commencement of the 1995 Act.
[2] There was some uncertainty as to whether the CCMA had made a ruling on the
question of jurisdiction either at the time of conciliation or before. If it clearly had
done so then the appropriate step may well have been for the respondent to take the
CCMA on review. The parties were in agreement, however, that I ought to rule on the
jurisdictional issue as if the matter had not been dealt with by the CCMA. It was also
agreed that I consider and make a ruling on this aspect of the matter before
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proceeding to hear the other preliminary issues (regarding condonation) or the
merits.
[3] The following pertinent facts by way of background and / or relevant to the issue
were all common cause. The applicant was appointed as a lecturer in Chemistry by
the respondent at its Qwa-Qwa branch, with effect from 1 February 1994. The
applicant gave notice of his resignation as an employee to the respondent on 30
September 1996, which notice was given in writing. The applicant’s last day of work
at the respondent was on 31 December 1996 when his contract of employment
effectively terminated. In his letter of resignation the applicant complained at some
length about the conduct of the respondent in dealing with various grievances which
had been previously raised by the applicant. He made reference to alleged lack of
ethical conduct by senior officials and leaders, bullying activities, individual and
collective hypocrisy, the shameless flouting of professional boundaries and
corruption. The term “constructive dismissal” was not used at all during the course of
the letter of resignation, but the tone of the letter made it quite clear that the
applicant regarded the conduct of the respondent as intolerable and had reached the
conclusion that the people who ran the respondent were totally unwilling to listen to
his complaints, by implication, that he had no alternative but to resign. Although the
applicant worked out his notice period until 31 December 1996, it was common cause
that no further dialogue or discussions took place between the applicant and the
respondent during the notice period concerning the issues raised by the applicant or
the basis of his resignation.
[4] Mr Meyer, who appeared on behalf of the applicant, sought to argue that regard
should be had to the provisions of section 190 of the 1995 LRA in order to determine
whether or not this dispute fell within the jurisdiction of the 1995 LRA. He submitted
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that on either basis, namely, the date on which the contract of employment
terminated or the date on which the employee left the service of the employer, 31
December 1996 would be relevant date in the circumstances of this matter. On his
argument, it followed that there was jurisdcition.
[5] It is clear that one cannot have regard to the provisions of section 190 of the 1995
LRA in order to determine whether or not a dispute is justiciable under the provisions
of the 1995 LRA. Instead one has to have regard to the Transitional Provisions of the
1995 LRA as set out in Item 21 of Schedule 7 thereto. This approach accords with the
decision of the Labour Appeal Court in Edgars Stores Limited v SACCAWU and another
[1998] 5 BLLR 447 (LAC).
[6] In the Egdars Stores decision (supra) the Labour Appeal Court held that in terms of
items 21(1) and 22(1) of Schedule 7 of the 1995 Act, the Industrial Court is required
to determine a dispute if:
the dispute was contemplated by the 1956 Labour Relations Act (“the 1956 Act”);
the dispute arose prior to 11 November 1996;
the Industrial Court had jurisdiction to determine the dispute; and
proceedings had not been instituted prior to 11 November 1996 to determine the
dispute.
[7] In the instant case, as in the Edgars case, it appears that the sole enquiry is
whether the dismissal dispute (in this case the constructive dismissal dispute) arose
prior to 11 November 1996 as all the other criteria for the Industrial Court to hear the
matter are met.
[8] The Labour Appeal Court in the Edgars case held that by virtue of the provisions of
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items 21 and 22 of Schedule 7 of the 1995 Act, the answer must be sought in the
1956 Act. In other words it would clearly be both inappropriate and wrong to have
regard to the provisions of section 190 of the 1995 Act in order to decide whether or
not the constructive dismissal dispute arose prior to 11 November 1996.
[9] The question of when a dismissal dispute can be said to have arisen under the
provisions of the 1956 Act was considered in some detail by the Labour Appeal Court
in the Edgars case. Under the provisions of section 43 of the 1956 Act, the term
“dispute” meant “a dispute concerning an unfair labour practice”. In terms of section
46(9) the Industrial Court had the power to determine “a dispute regarding an alleged
unfair labour practice”. For the purposes of the prescription of claims under both
section 43 and section 46(9) the prescription period was calculated from the date the
unfair labour practice was committed, not the date on which the parties declared a
dispute concerning the unfair labour practice, and no distinction was drawn between
the notion of a “dispute” and that of “an unfair labour practice”. The crucial date was
the date the cause of action (based on the unfair labour practice jurisdiction of the
Industrial Court) arose. The relevant prescription periods were calculated from the
date of dismissal, not the date that the parties declared a dispute regarding the
dismissal, and, in turn, the date of dismissal constituted the date on which the alleged
unfair labour practice was “introduced, commenced or ceased”. Thus, concluded the
Labour Appeal Court, a dismissal dispute arose on the date of dismissal. On the facts
of the Edgars case, thus, the Labour Appeal Court concluded that the dispute
concerning the unfair labour practice allegedly committed by the company in
dismissing a number of its employees arose on the date that they were dismissed, not
dismissing a number of its employees arose on the date that they were dismissed, not
on the date that the internal appeal procedure had been exhausted, and when, as
contended by the union, the dismissal became final. The analogy with the instant
case would be that the dismissal occurred on the date that resignation was tendered,
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not on the date that termination became effective (after the notice period had run its
course).
[10] Indeed, Mr Coetsee, who appeared for the respondent in this matter,
contended that in the constructive dismissal scenario of the instant case the date of
the (constructive) dismissal is the date on which the applicant tendered his
resignation, namely 30 September 1996. That is when his cause of action arose
regardless of the fact that the resignation only took effect on 31 December 1996,
particularly since nothing further happened in the intervening notice period. In the
circumstances he argued that it would be artificial to say that the dispute only arose
on 31 December 1996.
[11] I find myself in agreement with these submissions made on behalf of the
respondent, particularly if one applies the reasoning of the Labour Appeal Court in the
Edgars case. The applicant resigned on 30 September 1996 and as at that date all
the facts on which his cause of action for alleged unfair constructive dismissal would
be based were already in existence. As at that date he had a claim against the
respondent which was one contemplated by the 1956 Act, in respect of which the
Industrial Court had jurisdiction, and in respect of which proceedings had not been
instituted. The claim ought to have been pursued in accordance with the provisions
of the 1956 Act and not under the provisions of the 1995 Act, which, in the
circumstances, is not applicable.
[12] I am fortified in my views by the reasoning in the decisions of Schreuder v
Nederduitse Gereformeerde Kerk, Wilgespruit & andere [1999] 3 BLLR 276 (LC) and
Khutala Mining Services (Pty) Ltd v The CCMA [1997] 6 BLLR 761 (LC). In the
Schreuders case there were a number of stages to the process which culminated in
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the dismissal of the applicant on 2 December 1996. At the earlier stages the
dismissal was not final. The applicant was, for instance, invited during this period to
make make representations concerning a fair severance package. In the Khutala
case the dispute concerned the upgrading of the applicant’s position. The possibility
of this happening was kept open for a number of months and it was only on 15
November 1996, after the 1995 Act had come into operation, that it was
unequivocally confirmed that the position would not be upgraded. That was when the
dispute referred arose and accordingly the Labour Court held that the CCMA did have
jurisdiction.
[13] In the instant case the preliminary steps which led up to the dispute all
concerned the various grievances and complaints lodged by the applicant in the
months preceding his resignation. After his resignation on 30 September 1996
(before the 1995 Act came into operation), no further events occurred which can be
said to have created or altered the dispute which was referred to the CCMA. For
these reasons I am of the view that the facts of this case are distinguishable from
those of the Schreuders and the Khutala cases, while the reasoning applied in those
cases accords with the reasoning which I have applied in the instant case. Hence,
while applying the same reasoning I have come to a different conclusion on the facts,
namely, that there is in this case an absence of jurisdiction.
[14] The respondent seeks costs in the event of success, and submits that it
would accord with the requirements of law and fairness that costs be awarded in
respondent’s favour. Respondent does not pursue its prayer for a special costs order
as contained in its pleadings. In support of the prayer for costs, respondent argued
that the jurisdictional issue was raised by it at an early stage in the proceedings, that
the applicant was therefore alive to the point and ought to have reconsidered his
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position. The respondent submitted that there have been a number of decisions of
this court and of the Labour Appeal Court dealing with the principles applicable to the
issue, which should have made it sufficiently clear to the applicant that there was an
absence of jurisdiction. Therefore, he ought not to have pursued the matter thereby
causing the respondent to incur unnecessary costs.
[15] Mr Meyer, on behalf of the applicant, submits that even if I were to rule in
favour of the respondent on the point in limine I ought to make no order as to costs
because this is not a matter in which the applicant was acting frivolously or
vexatiously. Indeed, it was submitted that it was entirely reasonable of the applicant
in the circumstances to persist with his claim where, although it is not entirely clear
whether or not the CCMA Commissioner made a ruling on the point, at the very least
the CCMA appears to have tacitly accepted jurisdiction in the matter at the
conciliation stage. The unsigned report of the Commissioner which I am led to
believe was furnished to the applicant but not to the respondent at the time, would
have created the impression in the applicant’s mind that the CCMA was satisfied that
it did have jurisdiction. Furthermore, it was submitted that the law on the applicable
issues is not so clear that it ought to have been obvious that the provisions of the
1995 LRA did not apply. Mr Meyer indicated that despite diligent search he was
unable to find any case dealing with this jurisdictional question in a constructive
dismissal scenario. Mr Coetsee conceded that he had also not been able to come up
with any such decision.
[16] An application of the requirements of the law would appear to suggest that
costs ought to follow the cause in matters of this nature. However, there is no doubt
that although the applicant has been shown to have been misguided as to the
that although the applicant has been shown to have been misguided as to the
question of jurisdiction, there was no mala fides on his part. It is also true that the
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issues in question and the applicable case law are not uncomplicated, a fact which
appears to have been recognised by the Director of the CCMA in agreeing to refer this
matter to the Labour Court in the first place. Furthermore, the parties were unable to
point me to, nor I am aware of, a decision which is directly in point in having decided
these issues in a constructive dismissal scenario.
[17] In the circumstances therefore, and although the respondent has been put
to considerable expense in opposing this matter, I am of the view that the
requirements of fairness are such that I should exercise my discretion against making
a costs award in favour of the respondent.
[18] Consequently the order that I make is as follows:
The application is dismissed on the basis that the dispute arose prior to 11 November
1996 and, accordingly, this court does not have jurisdiction in respect thereof.
No order is made as to costs.
STELZNER AJ
Date of hearing :26 July 1999
Date of judgment :27 July 1999
For the applicant :Mr Meyer
Instructed by :Booysens, Du Preez and Boshoff Inc
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For the Respondent :Mr Coetsee of :Stemmet and Coetsee Inc
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