Sneller Verbatim/sem
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1623/02
2005- 02-10
REPORTABLE
In the matter between
GLOBAL TECHNOLOGY BUSINESS
INTELLIGENCE (PROPRIETARY) LIMITED Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 1st Respondent
DESMOND LYNCH N.O.2nd Respondent
JUDGMENT
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REVELAS J : This was an application brought in terms of section
158(1)(g) of the Labour Relations Act 66 of 1995 (“the Act”) in terms of
which the applicant sought to set aside a jurisdictional ruling of the
second respondent, Mr Lynch, a commissioner who acted under the
auspices of the 1st Respondent. (‘the CCMA”)
The ruling of the second respondent was that the CCMA had the
necessary jurisdiction to hear the matter which the applicant disputed.
The applicant, who formerly employed the third respondent, had
dismissed the third respondent who referred a dispute about an unfair
dismissal to the Commission for Conciliation, Mediation and Arbitration.
The point in limine raised by the applicant at the onset of those
proceedings was that, the dispute actually referred to the CCMA by the
third respondent was a dispute which fell within the jurisdiction of the
Labour Court in that it was an automatically unfair dismissal.
The employee, (or “the third respondent”) alleged inter alia that he was
dismissed because he sought legal advice from his attorneys about his
being consulted for poor performance.
The applicant raised the question of what a protected disclosure was in
terms of the Protected Disclosure Act, Act 26 of 2000 (The Disclosure
Act). This became a subject matter for discussion before the
Commissioner and when the matter was argued before me.
I believe it is necessary to quote directly from the ruling of the
commissioner. He stated the following:
"The applicant's version of being dismissed for poor work performance/
"The applicant's version of being dismissed for poor work performance/
misconduct clearly falls within the ambit of section 191 of the Labour
LOUIS KLOPPERS 3rd Respondent
Relations Act. The respondent used legal argument in an attempt to bring
the dispute under the Protected Disclosures Act 2000 and thus challenged
the CCMA jurisdiction (sic).
In examining the argument it is important to view the intention behind the
promulgation of the Protected Disclosures Act, which basically was
protected (sic) the "whistle blower" on disclosure from retaliatory action by
employer. In the act preamble this disclosure is generally mentioned as
information regarding unlawful, irregular, criminal conduct or within
organisations. An examination of definitions relied on in the respondent's
argument "occupational detriment and protected disclosures" merely
indicate the respondent's view of what constitutes this dispute. Plainly this
matter is of an ordinary dismissal and should be dealt with by the CCMA.
At the end of the arbitration hearing the commissioner can still decide the
jurisdiction should the evidence indicate the need.
RULING: The CCMA has jurisdiction. The matter is to be set down for
arbitration at our delay in terms of the CCMA rules."
The applicant submitted that the evidence under oath placed the
applicant's claims squarely within the ambit of the Protected
Disclosures Act since it contained all the elements required for the Act
to apply as set out below, and this Act applies to employers and
employees. Before I am able to interfere with the arbitrator's ruling, I will
have to find that his ruling is disconnected to the facts. Before him was
the jurisdictional fact of a dismissal. The employee determines - and
this has always been the case in the Labour Court - what the nature of
the dispute is, which is being referred to the CCMA.
The commissioner’s appreciation of it was that the dismissal dispute
was an ordinary dispute and not one set in the sophisticated and over-
was an ordinary dispute and not one set in the sophisticated and over-
technical terms described by the applicant. He motivated his findings
and properly established his own jurisdiction with reference to the facts
before him.
The third respondent stated that he was dismissed as a result of a
disciplinary hearing that was conducted in an unfair manner and the
applicant had no fair reason to dismiss him. The fact that he felt
threatened by a performance appraisal and the mere fact that he
sought legal advice on this issue does not render it a “disclosure” within
the meaning of the Disclosures Act. It was merely a factor and not
presented as the only reason for dismissal. That was the case before
the commissioner.
In the circumstances, I do not wish to interfere with the findings of the
commissioner. Furthermore, he correctly pointed out that this issue
could be resolved when evidence is lead at the arbitration hearing.
The application is dismissed with costs.
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REVELAS,J
ATTORNEY'S FIRM obo APPLICANT :
M Rawlinson of Webber Wentzel Bowens
ATTORNEY'S FIRM obo RESPONDENT:
R James of James Attorneys
DATE OF HEARING : 03/02/05
DATE OF JUDGMENT :10/02/05