IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case No. JS 591/02
In the matter between:
PATRICK C SING LI Applicant
and
Omega Holdings Ltd First Respondent
SHANGHAI INDUSTRIAL INVESTMENT (HOLDINGS)
COMPANY LIMITED Second Respondent
JUDGMENT
1. The Applicant in this matter has instituted proceedings in this Court against
the Respondents, alleging that he was unfairly dismissed for operational
requirements and, in addition, the Applicant has a number of money claims
against the Respondents.
2. It is in connection with these latter claims that the Respondents take issue, in
limine, contending that this Court lacks jurisdiction to entertain these claims.
The basis for this contention is that this Court only has jurisdiction to entertain
the claims in question if they have been conciliated by the CCMA. Because it
is common cause that they were not, the contention is that this Court
accordingly lacks jurisdiction.
3. The claims in question are set out in paragraphs 16, 17, 18 and 19 of the
Statement of Case. I do not intend to repeat what is pleaded.
4. The Respondents say that Section 74 (2) of the Basic Conditions of
Employment Act ("the BCEA") is applicable to the aforesaid claims (which I
shall refer to from now on as the ("money claims"). If the Respondents are
right then there is a difficulty for the Applicant because none of the money
claims have been conciliated in terms of the Labour Relations Act.
5. The applicable portions of Section 74 (2) of the BCEA reads as follows :
"If an employee institutes proceedings for unfair dismissal, the
Labour Court or the Arbitrator hearing the matter may also
determine any claim for an amount that is owing to that employee
in terms of this Act if –
a the claim is referred in compliance with Section 191 of the
Labour Relations Act, 1995; … "
6. It was submitted by Counsel for the First and Second Respondents that even
if the Applicant labels his claims " contractual" these claims would only be
enforceable in this Court, by virtue of Section 77 (3) of the BCEA and
therefore, in the premises, the Applicant's claims " quite obviously " constitute
claims in terms of the BCEA, within the meaning of Section 74 (2) of the
BCEA.
7. I do not agree that a reliance on Section 77 (3) of the BCEA in order to invoke
jurisdiction automatically means that the claims in question are therefore
claims in terms of the BCEA within the meaning of Section 74 (2) of the
BCEA. In fact, Section 77 (3) says precisely the opposite. The section
reads :
"The Labour Court has concurrent jurisdiction with the Civil Courts
to hear and determine any matter concerning a contract of
employment, irrespective of whether any basic condition of
employment constitutes a term of that contract " (my underlining).
8. Quite clearly then the Labour Court has concurrent jurisdiction to determine
any matter concerning a contract of employment and it does not matter that
the issue in question does not involve a basic condition of employment
covered by the BCEA. This is consistent with the provisions of Section 4 of
the BCEA which provides that a basic condition of employment constitutes a
term of any contract of employment except to the extent that :
"… a term of the contract of employment is more favourable to the
employee than the basic condition of employment ".
Therefore the only requirement in order to found jurisdiction is that the
matter must relate to a contract of employment.
9. Section 74 (2) of the BCEA is therefore, in my opinion, not necessarily of
application to all matters in respect of which the Labour Court has concurrent
jurisdiction with the High Court in terms of Section 77 (3) of the LRA. That is
so because Section 74 (2) is only of application where, firstly, the claims are
linked to proceedings for unfair dismissal and, secondly, where the claim is
for :
"an amount that is owing to that employee in terms of this Act … ".
10. In this matter the money claims are linked to a dismissal, but the Applicant
does not plead reliance on the BCEA in order to found those claims. The
money claims are founded in the contract alleged between the parties. It may
be so that some of these claims also straddle certain sections of the BCEA
but the pleader places no reliance on those sections in order to found the
money claims. Accordingly, the Applicant does not plead that these claims
are in respect of amounts due to the Applicant in terms of the BCEA. The
claims all arise and are so claimed, so the Applicant says, in terms of a
contract of employment between the parties. Therefore, in my opinion,
Section 74 (2) is of no application to these claims.
11. Section 77 (3) of the Labour Relations Act gives this Court a concurrent
jurisdiction with the Civil Courts to " hear and determine any matter
concerning a contract of employment, irrespective of whether any basic
condition of employment constitutes a term of that contract ".
12. This Court therefore has jurisdiction to entertain those claims set out in
paragraphs 16, 17, 18 and 19 of the Statement of Case by virtue of Section
77 (3) of the BCEA. That is, in fact, the section pleaded by the Applicant as
founding jurisdiction in regard to these claims.
13. The only reference to any obligation to conciliate a claim before the Labour
Court in Part B of Chapter 10 of the BCEA is to be found in Section 74 (2). It
follows that if Section 74 (2) is not applicable then there is no obligation to
conciliate the claim because the Labour Court has jurisdiction in terms of
Section 77 (3) of the BCEA.
14. In the result the Respondents' points in limine are dismissed with costs.
DATED at DURBAN this 25th day of APRIL 2003.
_____________________
N P WOODROFFE AJ