IN THE LABOUR COURT OF SOUTH AFRICA
CASE NO J1417/99
In the matter between:
HI ALLOY CASTINGS (PTY) LTD Applicant
and
LEON NICK SMITH First Respondent
MR AP BURGER Second Respondent
METAL & ENGINEERING INDUSTRIES
BARGAINING COUNCIL (TVL REGION) Third Respondent
ADV NORMAN DAVIS Fourth Respondent
THE DIRECTOR OF THE CCMA Fifth Respondent
JUDGMENT
JAMMY AJ
1. On 16 March 1999 the First Respondent in this matter launched an
application in this Court under Case No J1063/99 against the Applicant
(Respondent in that matter) in which he sought an order that the arbitration
award dated 5 March 1999 and issued by Commissioner Norman N Davis of the
Commission for Conciliation Mediation and Arbitration, and which, it was
alleged, had not been complied with by the Respondent, be made an Order of
Court.
2. On 16 April 1999 the Applicant in this matter (the Respondent in the
earlier application referred to above), served and filed Notice of Application for
an order reviewing, correcting, and setting aside a Certificate of Outcome
issued by the Second and Third Respondents on the basis of a contention that
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the Third Respondent lacked jurisdiction to conciliate the dispute between the
Applicant and the First Respondent, and for a further order reviewing,
correcting and setting aside the arbitration proceedings held and the award
made under the auspices of the Fifth Respondent on similar grounds, namely
that the Fourth and Fifth Respondents lacked jurisdiction to arbitrate the
dispute between the Applicant and the First Respondent.
3. On 11 June 1999 the Applicant in the first application, No J1063/99
applied to this Court for an order consolidating the two applications referred to.
That order was duly granted by consent and this matter has proceeded on that
basis.
4. The first issue for determination therefore, in logical sequence, is the
second application, by the Applicant in this matter, for the review, correction
and setting aside of the conciliation proceedings between the Applicant and
the First Respondent, conducted under the auspices of the Third Respondent
and of the Certificate of Outcome issued by the Second and Third Respondents.
If the allegation supporting that application is valid, namely that the Third
Respondent lacked jurisdiction to conciliate and the Fourth and Fifth
Respondents to arbitrate, the dispute, the application to have the award in
question made an Order of Court must accordingly be without foundation.
5. At the time of the termination of his employment, the First Respondent
was employed by the Applicant, which carried on business as a foundry, in the
capacity of Production Manager. It is common cause that on 17 June 1998, in
circumstances which the First Respondent contends constituted his dismissal
by the Applicant, but which the Applicant, in the person of its Managing
Director, Mr R W Verweij, characterised as his "desertion", the First Respondent
ceased to work for the Applicant.
6. Believing that he had been unfairly dismissed, the First Respondent, he
6. Believing that he had been unfairly dismissed, the First Respondent, he
avers, immediately communicated with the Third Respondent, the Bargaining
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Council, by which he was instructed to call at their offices the following week -
".............. on approximately 22 June 1998." On that date however, he decided
to return to the Applicant in order, he says, "............. to see whether I could get
my job back." Determining however "that there were no prospects of my
getting my former position with the Applicant back" he obtained, the same day,
the statutory form for referral of his dispute to the Bargaining Council for
conciliation (Form LR7.11) which, having been unable to obtain assistance from
the Bargaining Council in its completion, he filled out himself "a few days
later."
7. In completing the form, the First Respondent indicated the date of the
dispute as being 21 June 1998, an error subsequently acknowledged by him in
the context that that was a Sunday and that his meeting with Mr Verweij had in
fact been on 22 June 1998.
8. Whilst the date of the eventual receipt of the referral form by the
Applicant is in dispute, the Applicant alleging that it received it for the first time
on 27 July 1998 and the First Respondent contending that it was some time
before 21 July, it is common cause that in the form in which it was eventually
telefaxed to the Applicant, reflecting as stated, the date of the dispute as 21
June 1998, the referral was neither dated nor signed.
9. It is also not in dispute that on 28 July 1998, the First Respondent
returned to the Bargaining Council where he was apparently instructed to
amend the form to the effect that the dispute arose on 21 July 1998, the date
of his final abortive meeting with Mr Verweij. The date on the original form, 21
June 1998 was accordingly crossed out and the words "correct date 21/07/98"
inserted thereunder over the initials of the First Respondent and a date, 28 July
1998. It is not disputed that the referral form, as now amended, was never
served on the Applicant.
served on the Applicant.
10. The First Respondent contends that the alteration of the date of dispute
was made in the context that, having informed the Bargaining Council of his
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allegedly final but unsuccessful attempt, "to settle the matter" with the
Applicant on 21 July 1998, he was informed that, on the basis of that
unsuccessful approach, 21 July 1998 "was the correct date of the dispute
arising" and that the original date, 21 June 1998, should be deleted and
amended.
11. On 19 August 1998 the Third Respondent notified the parties of a
conciliation meeting scheduled for 31 August 1998, a meeting which,
notwithstanding notification by the Applicant of its inability to attend it, was
pursued in the absence of any representative of the Applicant, under the
chairmanship of the Second Respondent by whom, on 31 August 1998, a
"Certificate of Outcome of Dispute referred for Conciliation" was issued and
signed by the Second Respondent as Conciliator, to the effect that the dispute
remained unresolved as at that date.
12. Pursuant thereto, and on the same date, the First Respondent filed a
request for arbitration with the Fifth Respondent, leading in due course to the
arbitration proceedings before the Fourth Respondent and the eventual issue
by him of the Arbitration Award which is the subject matter of the consolidated
review application.
13. The Applicant's challenge to the jurisdiction of the Fifth Respondent to
have conciliated, and the Fourth Respondent to have arbitrated, the dispute
between the parties is sourced in Section 191 of the Labour Relations Act 1995
("the Act"). The relevant provisions of that section are the following:
"(1) If there is a dispute about the fairness of a dismissal, the
dismissed employee may refer the dispute in writing within 30 days of
the date of dismissal to -
(a) a Council, if the parties to the dispute fall within the registered
scope of that Council."
14. The date of dismissal is defined in Section 190(1) of the Act as the
earlier of -
"(a) the date on which the contract of employment terminated; or
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(b) the date on which the employee left the service of the employer."
15. Section 51(2)(c), moreover, requires the party referring the dispute to the
Council to satisfy it that a copy of the referral has been served on all the other
parties to the dispute.
16. What is remarkable about the dispute between the Applicant and the First
Respondent as to the date of his dismissal, is that each of them, on the papers,
appears to be a protagonist of the opposite cause. In more than one instance,
Mr Verweij avers that he did not regard the First Respondent as having been
dismissed either on 17 June 1998 or thereafter. His initial view that the First
Respondent had apparently resigned from his employment on 17 June, was
subsequently altered to suggest that he had in fact deserted. The First
Respondent on the other hand, is consistent in his averments that his meetings
with Mr Verweij, subsequent to the events of 17 June 1998, were designed to
assess whether or not there was any possibility of his "getting his job back",
indicating what I perceive to have been the unreserved perception on his part
that he had lost it.
17. Those views however, are in my opinion irrelevant. Regard can be had
solely to the facts of the matter and their assessment in the context of Section
190 of the Act. The date of dismissal is defined by statute as the earlier of the
date upon which the contract of employment terminated or the employee left
the service of the employer.
18. It is common cause that the First Respondent left the Applicant's
premises on 17 June 1998 and, other than to engage in further discussion with
Mr Verweij "in order to see whether I could get my job back" or "in order to
attempt to settle the matter", did not return to work. What he did do, having
realised "that there were no prospects of my getting my former position with
the Applicant back" was, immediately thereafter, to refer the matter to the
the Applicant back" was, immediately thereafter, to refer the matter to the
Bargaining Council in the circumstances which I have reviewed earlier in this
judgment.
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19. The date of dismissal, as defined in the Act, was therefore 17 June 1998.
The date on which, on the First Respondent's submissions, the matter was
referred to the Bargaining Council, was 28 July 1998. The dispute in that
referral is defined as one relating to "unfair dismissal." The "correct date"
upon which that dispute is alleged to have arisen, is reflected therein as 21 July
1998. That, as indicated, was clearly not the case.
20. The letter from the Bargaining Council to the Applicant's Attorneys of 8
April 1999 to the effect that the dispute "was timeously referred to the Council"
is, for the reasons which I have stated, without substance. It is patently based
upon the amended dispute date reflected in the referral form and, as
submitted by Counsel for the Applicant, is unsupported by any substantiating
affidavit clarifying or explaining the basis of that statement. The author of that
letter is identified and the Bargaining Council must undoubtedly have
maintained some record of the matter referred to it. The contention in
question is critical to the First Respondent's case and the failure to procure
extraneous evidence to support it has not, in my view, been adequately
explained.
21. The reference by the Fourth Respondent of the dispute to the Bargaining
Council on 28 July 1998 was therefore out of time in terms of Section 191(1)(a)
of the Act, a period in excess of 30 days having elapsed since the date of
dismissal, 17 June 1998. It is common cause that no application in terms of
Section 191(2) was at any time made to the Council for condonation of that
late filing or extension of the prescribed 30 day period. Quite clearly, in the
perception of both the Council and the First Respondent, there was no
necessity to do so if, indeed, the dispute arose on 21 July 1998.
22. It was the inherent duty of the Second Respondent, in his capacity as
22. It was the inherent duty of the Second Respondent, in his capacity as
Conciliator under the auspices of the Third Respondent to have made a factual
enquiry, as to whether the referral of the dispute to the Third Respondent had
been timeously made or not. He should, in my view, have been alerted to the
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necessity for such enquiry by the referral document which, on the face of it,
was irregular. The date of the dispute had been altered, the document was
irregularly signed and there was no proof of its service, in its amended form, on
the Applicant. Had he responsibly done so, some question must inevitably
have arisen, necessitating at least a contingent application by the First
Respondent for condonation in terms of Section 191(2) of the Act, in the event
that it was found that the referral was either late or for some other reason
irregular.
23. In these circumstances the Third Respondent had no jurisdiction to
conciliate the matter and it follows that the Fourth Respondent, acting as
Arbitrator under the auspices of the Fifth Respondent, similarly lacked
jurisdiction to deal with it. See Shoprite Checkers (Pty) Ltd v Commission
for Conciliation Mediation and Arbitration & others (1998) 19 ILJ 892
(LC).
24. In the result, I make the following Order:
24.1The conciliation proceedings conducted under the auspices of the Third
Respondent and the Certificate of Outcome dated 31 August 1998 issued
pursuant thereto by the Second Respondent, are reviewed and set aside.
24.2The arbitration proceedings held under the auspices of the Fifth Respondent
and the Arbitration Award handed down by the Fourth Respondent under Case No
GA32107/98 are reviewed and set aside.
24.3In the context that, notwithstanding his apparent opposition to this
application and his prayer, in his Answering Affidavit in these proceedings, that
the application be dismissed with costs, no order for costs is sought by the
Applicant against the Fourth Respondent, no such order is made.
24.4The First Respondent is ordered to pay the Applicant's costs of this
consolidated application.
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B M JAMMY AJ
Date of hearing : 25 November 1999
Date of judgment : 6 December 1999
Appearance for applicant : Adv. Peter Buirski instructed by Dorkin & Verster
Attorneys
Appearance for respondents : Adv. Warren Bank instructed by Leppan, Beech
Attorneys
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