VIC & DUP/JOHANNESBURG/LKS
IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
DATE: 14 June 2000 CASE NO. J1330/98
In the matter between:
FIDELITY GUARDS HOLDINGS (PTY) lTD Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION AND OTHERS Respondents
J U D G M E N T
LANDMAN, J :
[1] Fidelity Guards Holdings charged Mr Russell Starfield, an operational
manager, with six charges, found him guilty of four charges and
discharged him. He referred a dispute to the CCMA. The matter proceeded
to arbitration before the first respondent, a commissioner of the CCMA.
[2] The commissioner heard the evidence and found that charges (e) and (f)
were the most important charges. He found that Mr Starfield was not
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guilty in respect of the misconduct alleged in those charges. However,
the Commissioner found that Mr Starfield was guilty of misconduct
regarding three other charges. These were:
Α(a) You started at the Spar on the 26th March 1997 without invoicing the
client and/or signing a guarding agreement up to 30.6.97.
(b) Overposted a five day guard, Grade C, at Falcon Bros, Amandelbult for
an extended period without receiving any income for his service.
(c) Posted guard with firearms without issuing them with the necessary
permits and/or licences resulting in a guard being arrested by mine
security at Amandelbult for illegal possession of a firearm on 30.6.97. ≅
[3] The commissioner said in relation to charge (a) that Mr Starfield had
been grossly irresponsible in the performance of his duties. As regards
charge (b) the commissioner said that Mr Starfield did not perform his
duties with the necessary due diligence as would have been expected of
any person in his capacity. The commissioner remarked that charge (c)
ought to have been the most important charge as there are certain legal
requirements to be met surrounding the issuing of firearms.
[4] The commissioner considered the overall situation and made certain
remarks in regard to the attitude of Fidelity Guard Holdings towards Mr
Starfield. He came to the conclusion that the facts did not justify the
dismissal of Mr Starfield. He awarded compensation to Mr Starfield in
the amount equivalent to six months salary.
[5] Fidelity Guard Holdings is dissatisfied with this award and has sought
to review it. One of the grounds on which Fidelity Guards relies is
that the commissioner had no jurisdiction to entertain the dispute. The
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commissioner disputes this and has filed an affidavit in which he
appears to oppose the granting of the relief. I must, however, point
out that his affidavit is defective. His affidavit was signed before
the registrar of the CCMA with whom he obviously has a relationship in
his capacity as a commissioner. Not only that, but the registrar is also
an employee of an interested party, namely the second respondent. Be
that as it may, it is necessary for me to consider whether or not the
commissioner had jurisdiction to entertain the dispute.
[6] Fidelity Guard Holdings points out, in its founding affidavit, that the
dispute was referred some 44 days outside the expiry of the 30 day
period within which a referral may be made. See section 191(1)(b) of
the Labour Relations Act 66 of 1995. No application was made at the
conciliation stage for the condonation of the late referral and no
application was made in this regard at the commencement of the
arbitration proceedings. It is submitted that as a result the CCMA and
the commissioner had no jurisdiction to entertain the arbitration
proceedings as they had no jurisdiction to entertain the conciliation
proceedings. The certificate which had been issued did not cure that
deficiency.
[7] This point has been considered in a few decisions in this court. In
Shoprite Checkers (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others (1998)
10 ILJ 891 (LC) it was decided by Pretorius AJ that where the CCMA has
no jurisdiction to conciliate a dispute an arbitrator would also have no
jurisdiction. In a later decision, Tiani Franco Hair Stylists v Howard
and Others (2000) 21 ILJ 361 (LC) Soni AJ came to the conclusion that
condonation may only be granted by the commissioner conciliating the
condonation may only be granted by the commissioner conciliating the
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dispute. If this is not done any further steps are a nullity. I am
bound by the decisions of this court unless I am convinced that they are
clearly wrong. There is nothing which I can find which indicates that
these decisions are clearly wrong although it is possible that they
could have been decided differently.
[8] In the circumstances, I am bound to find that the commissioner in this
matter had no jurisdiction to entertain the matter. For this reason the
application must succeed. The award of the first respondent, under Case
No. NW2941 of 19 March 1998 is therefore reviewed and set aside. There
will be no order as to costs.
DATED AND SIGNED AT JOHANNESBURG ON THIS 21 ST DAY OF JUNE 2000.
A A LANDMAN
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
Date of hearing: 13 June 2000
Date of judgment: 14 June 2000
For the Applicant: Mr S Snyman of Snyman Van Der Heever Heyns Inc
For the Respondent: No appearance
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