Sneller Verbatim/HDJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS506/01
2002-10-22
In the matter between
H GERSBACH Applicant
and
CELLVEC ELECTRONICS Respondent
_______________________________________________________________
_
J U D G M E N T
_______________________________________________________________
_
REVELAS J:
1. The applicant was dismissed by the respondent on
3 January 2001 due to the alleged operational
requirements of the respondent. He referred a dispute
about an unfair dismissal to the Commission for
Conciliation, Mediation and Arbitration, (“the CCMA” or
“the Commission”).
2. Conciliation took place on 12 February 2001, according
to the applicant. The respondent raised an objection
in limine to the effect that on the certificate of
outcome the dispute was not resolved or remained
unresolved and was a nullity. The respondent relied on
the following facts:
1. 1. 3. On 22 January 2001 the respondent received a
written notice from the CCMA to attend a conciliation
meeting. The applicant received the same notice to
attend and did attend on that day, namely 12 February
2001.
4. On 24 January 2001 the respondent, without notifying
the applicant, requested a postponement of the
conciliation because the date did not suit the
respondent's labour consultant. He had made other
arrangements for the day.
5. On 5 February 2000 the labour consultant wrote a
further letter to the CCMA, requesting a new
conciliation date.
6. On 6 February the respondent received a notice from the
CCMA, advising that the date for conciliation was
scheduled for 22 February 2001. The respondent alleges
that it understood this to be the new conciliation
date, allocated as a result of or in response to its
request for a postponement.
7. However, on 8 February 2001 the respondent received a
fax from the CCMA, being a copy of the respondent's
letter dated 24 January referred to above, on which the
following handwritten remarks are made at the bottom of
the letter:
"RECEIVED
2001/02/08
We only received it today. Someone has to come and argue
postponement on 12/02/01 at 13h30."
8. Respondent said he ignored this letter and argued that
the handwritten notice was clearly an error. It is
common cause between the parties that the second note
emanated from the CCMA.
1. 9. In the interim, the applicant had, as it alleged,
attended a conciliation meeting at the CCMA on 12
February 2001, in the absence of the respondent. A
certificate to the effect that the dispute remained
unresolved was issued on this occasion.
10. The respondent argues that this certificate is a
nullity because on 22 February 2001 the respondent
represented by an employee, appeared at a conciliation
meeting at the CCMA and a conciliation ruling was made
to the effect that the applicant had abandoned the
dispute.
11. The respondent's argument has no merit. Firstly, it
was conceded that some administrative error was
committed by the CCMA in its handling of the matter.
However, the approach adopted by the CCMA to notify the
respondent that it must argue the postponement at the
CCMA's offices is quite correct. The CCMA is an
institution which carries a heavy burden in terms of
the amount of disputes which are conciliated by it and
arbitrated under its auspices. Chaos is bound to ensue
if conciliations and arbitrations were arranged, only
to be postponed by unilateral postal request. The
reason for not permitting unilateral postponements per
postal request is quite obvious.
12. Rule 17 of the Rules of the CCMA provides for
postponements. According to Rule 17(1) postponements
will be granted without the need for the parties to
appear if both of the following conditions are met:
1. “1. All the parties to the dispute in writing to the
postponement; and
2. The request for the postponement is received by the
commission more than ten days prior to the scheduled date of
arbitration.”
13. Rule 17(2)(a) of the Rules of the CCMA provides that a
formal application in writing, for a postponement is
necessary if the parties do not agree, whether or not
an arbitration should be postponed, or when the request
for the postponement is made within ten days of the
scheduled date of the arbitration, and (b) the
application is to be served before the scheduled date
for the arbitration.
14. The Commission must decide whether to grant the request
for postponement on the written document presented, or
whether to convene a formal hearing. One would assume
that a further requirement should be, in the latter
instance, that there should be service of the request
on the other party. This basic requirement was not met
in this case.
15. The applicant has contended that the same rule should
apply to the postponement of conciliation meetings. I
agree with that contention. I believe that the rule
regarding postponements should also be strictly applied
to conciliation meetings, since that is the first stage
which a dispute comes to the attention of the employer
party and the CCMA.
1. 16. In this matter the respondent did not even have
the courtesy to notify the applicant of its application
for a postponement or of the second meeting where it
obtained the certificate referred to. The latter
certificate is relied upon by the respondent as the one
nullifying the former certificate.
17. The respondent also further argued that since the
certificate of outcome is referred to by the applicant
as ” incorrect”, (there is a note to that effect written
on the certificate), it is a further reason to regard
it as a nullity. The applicant explains that this was
done insofar as the description of the dispute is
concerned. The conciliator noted that the dispute
concerned the unfair dismissal of the applicant,
whereas the applicant referred a dispute concerning a
dismissal for operational requirements to the CCMA.
18. The applicant correctly contends that he is not bound
by the description of the dispute by the CCMA and that
he bears the onus to refer the dispute to the correct
forum for adjudication. In Fidelity Guards Holdings
(Pty) Ltd v Professional Transport Workers' Union and
Others (1998) 19 LJ 260, the Labour Appeal Court held
that the Labour Court and the CCMA should inquire into
the jurisdiction to determine an unfair dismissal.
19. In Vusa v Waverley Blankets Ltd 2000 21 ILJ 1910, CCMA,
a commissioner found that an arbitrator is not bound by
the designation of the dispute and that it must have
regard to the real nature of the dispute.
1. 20. The Labour Appeal Court also found that the
parties are not bound by categorisation of the dispute
and that it is for the court to ascertain whether the
essential quarrel between the parties has been
conciliated. The legal characterisation of the
particular set of factors for this purpose is
irrelevant. (See: National Union of Metal Workers of
SA and Others v Line Drive Technologists (Pty) Ltd and
Another 2000 ILJ 142 LAC.)
21. In the afresaid matter the Labour Appeal Court held
that the parties are not bound by the conciliator's
description of the dispute and the allegation of
another reason for dismissal does not introduce any new
dispute.
22. So much for the complaint about the incorrect
description.The respondent's argument in that regard
also has no merit.
23. The respondent has not bothered to plea to the
applicant's statement of claim but instead has raised
the above disingenuous point in limine, which, in my
view, is nothing more than a delaying tactic. On the
respondent's papers it acted on the advice of a labour
consultant. The applicant suffered as a result thereof.
The respondent accepted such advice at its peril and
should face the consequences thereof and pay the costs
of the applicant on a punitive scale.
24. Therefore I make the following order:
1. The point in limine raised by the respondent, (Cellvec
Electronics), is dismissed with costs on a scale as
between attorney and client.
_______________
E. Revelas