Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J 5767/00
2002-06-19
In the matter between
SAB Applicant
and
CCMA & OTHERS Respondent
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J U D G M E N T
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NTSEBEZA AJ:
[1] This is an application in which the applicant seeks to review
and correct or set aside the condonation ruling which was
given by the second respondent, one Tembekile Nsibanyoni,
acting in her official capacity as an arbitrator in the
Commission for Conciliation Mediation and Arbitration, the first
respondent. In respect of case reference number NP10324 that
award was made on 30 October 2000. The application also
seeks to review and correct or set aside the jurisdiction ruling
which was given by one Ebrahim Patella who also acted on
behalf of the first respondent in respect of case reference
NP10324 on 1 December 2000. There is a request that I
should declare that the first respondent has no jurisdiction or
had no jurisdiction to conciliate and/or arbitrate the disputes
referred to it under the case number reference NP10324.
[2] There is no opposition to this application. Indeed, the facts
have been summarised both in the papers as well as in the
heads of argument prepared by the applicants.
[3] The history of this matter is as follows. On 19 September
1997, following a disciplinary inquiry, the fourth
respondent, Joel Setati, was dismissed. His dismissal was
upheld at an appeal hearing. There was a national recognition
agreement in place between the applicant and the union to
which the fourth respondent belonged and central to that
agreement was a provision that required an employee who
disputed the fairness of the dismissal to notify the applicant
within 30 days of the date of his dismissal whereafter the
dispute would be referred to private arbitration. Where the
employee did not so notify the applicant of a dispute within a
30 day period, the dispute would be deemed to be resolved.
It is common cause that the fourth respondent did not do so
within the requisite period. It was only on 1 December 1997
that the applicant received notification of a dispute and a
request for arbitration. In response, the applicant notified the
representatives of the fourth respondent that in view of their
failure to comply with the provisions of the agreement that
was in place, their request for arbitration could not be
entertained. In March of the following year some three and a
half months later, applicant received a notification from the
attorneys acting for the fourth respondent requesting the
applicant to entertain a referral to arbitration in relation to the
fourth respondent's dismissal to which the applicant advised
the attorneys that it would not be possible to do so because
the provisions of the agreement in place had not been
complied with. 18 Months later the applicant was to receive
notification by telefax from the first respondent, to the effect
that the fourth respondent had referred an unfair dismissal
dispute to the first respondent, and that as this referral was
late, the fourth respondent had been required to apply for
condonation within fourteen days of receipt of the first
respondent's letter, failing which the first respondent would
close its file.
[5] It is clear from the papers that the applicant did not thereafter
receive a copy of the fourth respondent's condonation
application and yet on 18 November the applicant advised the
first respondent that in view of the provisions of the
recognition agreement, the first respondent did not have
jurisdiction in relation to the fourth respondent's unfair
dismissal dispute. It is also clear on the papers that the
application for condonation by the fourth respondent was
delivered in or about July 2000. This condonation application
was never received by the applicant and the applicant was
only to receive a ruling on 30 October 2000 in which
condonation was granted by the first respondent.
[6] On 3 November 2000 (again it is common cause), the
applicant received notification of a conciliation hearing from
the first respondent. From the papers it is clear that there was
no indication in the file of the first respondent that the
condonation application had ever been served on the
applicant. The fourth respondent, in applying for condonation
had not advised the first respondent of either the existence of
the agreement or of the provisions of the agreement. In his
condonation application it is clear the fourth respondent led
the CCMA, (the first respondent), to believe that the applicant
had deliberately failed to schedule an appeal hearing which
had led to the delay in the fourth respondent referring a
dismissal dispute to the first respondent.
[7] Even at the conciliation proceedings in November 2000 the
applicant raised the issue of jurisdiction and argued that the
first respondent did not have any jurisdiction in relation to the
unfair dismissal of the fourth respondent because of the
provisions of the agreement that was in place between the
fourth respondent and the applicant. The attitude of the third
respondent was that because condonation had been granted
the first respondent had already assumed jurisdiction hence he
could therefore not revisit the issue.
[8] No certificate of outcome was issued pending these
proceedings. When the applicant received the written ruling
on jurisdiction by the third respondent on 1 December 2000,
the applicant, on 14 December 2000, instituted these review
proceedings.
[9] It is common cause that in the interim between the date of the
institution of these proceedings and today, the first respondent
addressed to the fourth respondent, and to the applicant, a
letter in which the first respondent conceded that both
administrative and legal errors had occurred in the matter and
that the first respondent therefore proposed that the rulings
and the processes to date should be abandoned.
[10] It does appear that this was communicated in so many words
to the fourth respondent when he attended at the offices of
the first respondent, but because there was no undertaking
from him in writing that he accepted the concession by the
first respondent that some administrative problems have
attended the granting of all processes heretofore, the
applicant was constrained to come to this court and present an
argument that would seek to review both the jurisdiction
issues as well as the condonation ruling.
[11] The applicant has placed before me legal argument by way of
very comprehensive heads. I really have nothing to add to the
heads that have been drawn, and to the submissions made on
behalf of the applicant. It seems clear to me that as far as the
jurisdiction issue is concerned, the law is quite clear that
where there is an agreement in place, an agreement that
indicates that the parties to the agreement had voluntarily
entered that agreement, such agreement should be given
primacy.
[12] In Minister of Safety and Security v Safety and Security
Sectoral Bargaining Council & Others 2001 22 (ILJ) 2684, this
court emphasized this principle namely that the Labour
Relations Act encourages voluntarism and collective
agreements which should be given primacy over the provisions
of the Labour Relations Act. Reference is made in that case to
other cases notably Free State Buying Assosiation Ltd t/a
Alpha Pharm v SA Commercial Catering & Allied Workers Union
& Another (1998) 19 ILJ 1481 (LC); [1999] 3 BLLR 223 (LC).
[13] I accept the submissions made on behalf of the applicant in
this application that when parties to a collective agreement
agree to resolve their dismissal disputes by way of a private
arbitration, they clearly seek to regulate their own affairs
without having recourse to the Labour Relations Act save only
in those instances which are made exceptions by provisions of
Section 158(1)(g) of the Labour Relations Act.
[14] I also accept the submissions made on behalf of applicant that
if a dispute resolution procedure is provided for in a collective
agreement, then the Commission for Conciliation, Mediation
and Arbitration does not have jurisdiction. This much was
stated in the case of Mthimkhulu v CCMA and Another (1999)
20 ILJ 620 (LC) particularly at paragraphs 26 and 27:
"Collective agreements enjoy precedence over the provisions of the
Act in this regard. The Act prefers collective agreements concluded
on a voluntary basis by the parties concerned, in keeping with the
objectives of the Act. Section (1)(c)(i) and (d)(i) of the Act contains
the objectives, to provide a framework within which employees and
the trade unions, employers and employers’ organizations can ...
collectively bargain to determine wages, terms and conditions of
employment and other matters of mutual interest and formulate
industrial policy’ and to promote orderly collective bargaining."
[15] And in paragraph 27, my brother Basson, goes on to say:
"In the event, precedence is given to the products of collective
bargaining and as a rule the labour court will uphold the products of
collective bargaining, save for instance where the collective
bargaining agreement itself is contra bonos mores and therefore void
on such basis."
[16] I cannot agree more with the further submission made by the
applicant that where the jurisdiction of a tribunal is dependent
on the existence of a particular state of affairs, the particular
tribunal cannot give itself jurisdiction by incorrectly finding
that the conditions for the exercise of such jurisdiction are
satisfied. It is necessary for the requisite jurisdictional facts to
exist before a tribunal can claim to have power to act.
[17] It is quite clear to me that in this particular case the third
respondent failed to apply his mind to the existence or
otherwise of the necessary jurisdictional issues before him in
accordance with the requirements of the Labour Relations Act.
I am quite satisfied that this alone constituted a gross
irregularity, the nature of which should entitle the applicant to
be successful in his application on that basis alone.
[18] I am satisfied that first respondent did not have the necessary
jurisdiction to consider the dispute and that consequently the
decision of both the second and third respondent fall to be set
aside.
[19] It now brings me to the question of whether the applicant is
entitled to succeed in its submission that in granting
condonation when the fourth respondent had delivered his
condonation application some nine months after the 14 day
time period specified in the first respondent's letter had
expired, the second respondent had committed a gross
irregularity which has resulted in a grave injustice to the
applicant.
[20] I am satisfied that the second respondent's condonation ruling
happened in circumstances where it is arguable, in favour of
the applicant, that the second respondent did not apply his
mind to the issue. In any event it is clear that he never gave
the applicant an opportunity to make representations as to
why the fourth respondent's failure to apply for condonation
within the specified 14 day period, should in itself be
condoned. The applicant was reasonably entitled to rely on
the statement that had been sent to the fourth respondent
that should his condonation application not be received within
14 days, the first respondent would close its file.
[21] It is also clear that all the correspondence by way of telefax
machine that had been sent to the first respondent by the
applicant, was never considered by the second respondent in
granting the condonation.
[22] I am satisfied, on that basis therefore, that in granting
condonation, the second respondent exceeded its powers
since the first respondent did not have jurisdiction in relation
to the fourth respondent's dismissal dispute, and in any event
the condonation came woefully out of time by way of an
application made by the fourth respondent seeking such
condonation.
[23] I am also satisfied that this application for review, even though
it was brought in 2000, has been brought within a reasonable
time, and that the delay in it being heard only today does not
negatively reflect on the applicant.
[24] In the circumstances I am satisfied that a proper case has
been made on behalf of the applicant, for the relief it seeks,
and I accordingly order as follows:-
1. The condonation ruling given by the Second Respondent in
respect of case reference NP 10324 on 30 October 2000 is
reviewed and set aside.
2. The jurisdiction ruling given by the Third Respondent in
respect of case reference NP 10324 on 1 December 2000 is
reviewed and set aside.
3. The First Respondent had no jurisdiction to conciliate
and/or arbitrate the dispute referred to it under case
reference NP 10324 .
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D B Ntsebeza
Acting Judge
On behalf of the Applicant: Mr. T. Ngcukayithobi
On behalf of Bowman Gilfillan Inc.
On behalf of the Respondent: No appearance