IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG) CASE N0 JR 945/01
In the matter between:
VIRGIN ACTIVE SOUTH AFRICA (PROPRIETARY) LTD Applicant
and
L E MATHOLE N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
MOLLY REDDY Third Respondent
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JUDGMENT
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JAMMY AJ
1. In this unopposed application, the Applicant seeks an order in the following
terms:
“1. Reviewing and setting aside the jurisdictional ruling made by the First
Respondent in terms of Section 158(1)(g) of the Labour Relations Act 66
of 1995 as amended on 6 June 2001.
“2. Replacing the jurisdictional ruling of the First Respondent with an order
stating that the CCMA does not have jurisdiction to entertain Reddy’s
dispute and that Reddy was not an employee of the Applicant.”
2. The background to this matter is the referral by the Third Respondent to
the Second Respondent for conciliation in terms of Section 191 of the
Labour Relations Act 1995 (“the Act”), of a dispute arising from what is
alleged to have been her unfair dismissal by the Applicant on 8 February
2001.
3. The First Respondent was the Commissioner designated by the Second
Respondent to conduct the conciliation process. At the outset and as
recorded by him in his “Jurisdictional Ruling Reasons” dated 6 June 2001
–
“The Respondent, Virgin Active, raised a technical point which needs
determination before the CCMA can assume jurisdiction”.
The basis of that technicality, namely that, for the reasons stated, the Third
Respondent was not an employee of the Applicant, was then briefly
outlined and examined by the First Respondent who, having done so,
made the following order:
“ (a) The CCMA has jurisdiction and the Applicant is an employee to the
new employer, Virgin Active by virtue of Section 197 of the Labour
Relations(sic).
(b) No order as to costs.”
4. Counsel for the Applicant, Mr F G Barrie, submitted in his argument in
support of this application that the dispute itself is not a matter for
determination by this Court, the sole and essential issue being whether the
relationship of employer/employee, as an objective fact, is a jurisdictional
fact that has to be established before a Commissioner of the Second
Respondent in conciliation proceedings in terms of Section 191(4) of the
Act. He referred to a number of decisions in which the issue was either
touched upon or substantively dealt with by this Court.
5. The conclusion reached by Brassey A J in –
Richards Bay Iron & Titanium (Pty) Ltd t/a Richards Bay Minerals and
Another v Jones and Another (1998) 19 ILJ 627 (LC)
that whether or not a relationship of employer/employee exists was a
matter for the CCMA to decide, seems to me to be not open to debate in
the context of the relevant provisions of the Act. At page 629 of the report,
the learned Judge, with reference to those provisions, says this :
“Implicit in these provisions, it seems to me, is the proposition that a
dispute cannot be referred to the CCMA unless the parties to it share a
mutual interest and, where they are individuals, that this interest takes the
form of a bond of employment between them”.
6. In the case in question the alleged employer approached the Labour Court
to interdict conciliation and arbitration proceedings in the CCMA on the
basis that it had not been the Applicant’s employer. The application was
dismissed on the basis that it was premature, Brassey A J finding that the
CCMA had the authority to decide the issue and that the application to the
Labour Court, before the CCMA had been called upon to decide that
question, was premature.
7. The Court in that matter however, did not specifically address the situation
arising where the issue in dispute is not one capable of resolution by
arbitration under the auspices of the CCMA but is one which, where
conciliation fails, must, as the law stands at present, be determined by the
Labour Court, as for example where termination of employment is alleged
to have been automatically unfair or unfair in the context of the operational
requirements of the employer.
8. If the principle enunciated in Richards Bay Minerals is to be accepted as
one of general application, that any application to the Labour Court
arising from a dispute as to whether or not an employment relationship
exists between the contesting parties, will be premature if that specific
issue has not first been referred to the CCMA for determination – then of
necessity the CCMA, where the dispute is sourced either in the provisions
of Section 187 or Section 189 of the Act, must ipso facto be vested with
the power to determine it at the conciliation stage. What will thereafter be
open to the parties or either of them, in a proper case, will be the exercise
of their right to seek a review by the Labour Court of any such ruling.
9. If I am correct in that analysis therefore, there can to my mind be no
validity in an argument that such authority exists selectively and can be
exercised only in the narrow categories of dispute (Sections 187 and 189)
to which I have referred. Either the CCMA is entitled generally to
determine the jurisdictional fact to which I have referred at the conciliation
stage, or it is not. There can be no substance to any argument
(hypothetical in this case) to the effect that it may do so in certain cases
but not in others.
10. The broad issue was alluded to but not comprehensively determined in –
Flexware (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others (1998) 19 ILJ 1149 (LC)
in which Zondo J (as he then was), in an application brought after the
conciliation proceedings had been finalised and after the Commissioner in
ensuing arbitration proceedings had issued a ruling that an employer/
employee relationship between the parties existed, suggested that enquiry
into the existence of such a relationship was something that the CCMA
had to undertake when it conducted “conciliations and arbitrations”. The
necessary implication from that conclusion is that the CCMA would not
have jurisdiction to conciliate a dispute if the parties before the
Commissioner were not in an employment relationship.
11. A contrary view however was expressed by the Labour Court in –
Dempster v Kahn N O and Others (1998) 19 ILJ 1475
in which Revelas J set aside a jurisdictional ruling made by a CCMA
Commissioner in conciliation proceedings to the effect that the Applicant
was not an employee for the purposes of the Act. A Commissioner
charged with conciliation proceedings, the learned Judge held, did not
have the authority or power to determine whether the requisite relationship
existed. That was an issue to be dealt with in arbitration or adjudication
proceedings as the case may be. That the parties to the dispute had to
have been in an employer/employee relationship was not a jurisdictional
fact requisite to conciliation proceedings in terms of Section 191(4) of the
Act. That section requires an attempt to resolve the dispute through
mediation and that is what the Commissioner is bound to do without further
enquiry.
12. For the reasons which I have stated, I am respectfully unable to agree with
that conclusion. Section 191 of the Act prescribes a conciliation procedure
relating to “a dispute about the fairness of a dismissal” and it is “the
dismissed employee” who may refer such dispute to the Commission. A
fortiori, a person who is not an employee may not do so. His or her status
as such, if challenged at the conciliation stage therefore, must logically and
practicably be thereupon determined. To hold otherwise would, in my
opinion, serve only to undermine a legislated procedure designed to
facilitate and expedite the resolution of employmentrelated disputes. The
review jurisdiction of the Labour Court and indeed, to give that term a
wider meaning, of an arbitrator where that procedure is indicated, serves
adequately as a refuge available to an aggrieved employer able to
establish a basis to invoke it.
13. For these reasons I have concluded that no basis exists for the
interference by this Court with the ruling of the First Respondent in
question and that the matter must take its course.
The application is accordingly dismissed.
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B M JAMMY
Acting Judge of the Labour Court
11 April 2002
Representation:
For the Applicant:
Advocate F G Barrie instructed by Sampson Okes Higgins Inc.
No appearance for Respondents