IN THE LABOUR COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)
CASE NO: C326/01
DATE: 1-11-2002
In the matter between:
L NYMAN Applicant
and
J ENGELBRECHT Respondent
J U
D G M E N T
REVELAS, J:
1. This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 ("the Act"). In this matter, the arbitrator
found in favour of the first and second respondents by finding
that the dismissal for alleged operational requirements was
substantively and procedurally unfair and made an award in their
favour.
2. However, what is noted that the basis on which the
arbitration award is sought to be set aside is on the basis that the
arbitrator did not have the necessary jurisdiction to arbitrate the
matter since it was a matter which should have been referred to
the Labour Court by virtue of the fact that it was a dispute about
the employer's alleged operational requirements. In such a
matter parties may agree that the matter which should normally
be adjudicated in the Labour Court, be arbitrated at the
Commission for Conciliation, Mediation and Arbitration ("the
CCMA"). However, the parties may not agree that a matter which
should be arbitrated can go to the Labour Court for adjudication.
1-11/10:52 3. /...
JUDGMENT
3. These considerations are, however, irrelevant in this
matter. The arbitrator who conducted the proceedings under the
auspices of the CCMA was not cited as a party, or asked for his
views on the question of jurisdiction. Merely the two employees
are cited as the first respondent and second respondent
respectively. Relief is sought which would affect the arbitrator
but none of those parties who were involved at that stage are
cited. In the circumstances the application is defective and
cannot be entertained.
4. In the circumstances the application is dismissed.
REVELAS, J