IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT DURBAN)
CASE NO: D740/04
In the matter between:
YOURIY PETROV VELINOV Applicant
and
UNIVERSITY OF KWAZULUNATAL First Respondent
AUBREY NGCOBO N.O. Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
J U D G M E N T
G.O. VAN NIEKERK AJ
[1] This application is for the review of an arbitration award made by the Second
Respondent in terms of which he upheld two points in limine raised by the First
Respondent in a dispute pertaining to an alleged unfair labour practice in terms
of section 186(2)(a) of the Labour Relations Act, 1995 (LRA). For the sake of
clarity I will refer to the Applicant as Professor Velinov and the First Respondent
as the University.
[2] Professor Velinov was previously employed as an associate professor in the
Computer Science Department of the University in Pietermaritzburg. In July
2003 the University advertised the vacant position of chair in computer science
and subsequently it also advertised the position of professor in computer
science. Professor Velinov submitted an application for the first post that is,
chair in computer science. On 2 December 2003, he was interviewed for the
position and on 6 December he was telephonically informed that his application
had not been successful. On 8 December 2003 Professor Velinov tendered his
resignation in a letter stating inter alia ,
“The whole process of handling my application was peculiar from the very
beginning but the appointment of a person with apparently lower qualification,
from outside, with no knowledge of our department and its problems shows me
that academic merits (sic) are of no value to the leaders and representatives of
the Faculty of Science.”
[3] The University accepted the tendered resignation but Professor Velinov
attempted to retract it on 3 February 2004, without success. On 26 March 2004
Professor Velinov referred a dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA) which he summarised as follows:
“Unfair selection proces (sic) of application for a post at “Full Professor” level as
a result of which a considerably weaker person was appointed.”
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[4] On 29 April 2004 a certificate of nonresolution of the dispute was issued in
terms of section 191(5) and on 30 June 2004 Professor Velinov’s employment
with the University came to an end with the effluxion of the notice period he was
obliged to give the University when he resigned.
[5] When the dispute came before the Commissioner in the CCMA, the University
raised the following legal points in limine . Firstly, that the Commissioner did not
have jurisdiction to entertain the dispute on the ground that the referral of the
dispute had been made outside of the 90 day period prescribed for the referral
of unfair labour practices in terms of section 191(1)(b). Secondly, in the light of
Professor Velinov’s resignation, it was not competent for him to seek relief in
respect of an alleged unfair labour practice. Thirdly, there was no merit in the
referral as no application had been made for the post in respect of which he
claimed he had suffered unfair treatment.
[6] The Commissioner upheld the first two points in favour of the University and in
regard to the third point, made no finding as a dispute of fact exists as to
whether it was necessary for application to be made for both positions or
whether it would suffice for an application to be made in respect of the position
of Chair only in which case the application would be considered to be in respect
of the other position as well.
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[7] In the application before me, Mr Chadwick, who appeared for the University,
argued that the Commissioner was correct in his findings on the points in limine .
I will deal with each of the two points whereafter I will consider whether the
award is reviewable.
[8] As far as the jurisdictional point is concerned, it is now settled law that the
Commission acquires jurisdiction to arbitrate a dispute after a certificate of non
resolution has been issued (see Fidelity Guard Holdings (Pty) Ltd v Epstein
N.O. & Others [2000] 12 BLLR 1389 (LAC)). The Court found in this case that
even if the dispute is referred late, the Commission retains jurisdiction, provided
a certificate of “nonresolution” has been issued. It went on to find that the only
way in which a defective certificate can be challenged is by way of review.
[9] Mr Chadwick submitted on behalf of the University that the 90 day period
referred to in section 191(1)(b) expired on 8 March 2004 and that in the
absence of condonation for the late referral of the dispute, the Commissioner
was correct in holding that he did not have jurisdiction to resolve the dispute.
Mr Chadwick, however, accepted that the Commissioner had issued a
certificate of nonresolution in terms of section 191(5) but contended that the
amendment of section 191(1)(b) introduced an additional jurisdictional pre
requisite because unlike section 191 before its amendment, a referral in the
case of a dismissal must be made within 30 days and in the case of an unfair
labour practice, must be made within 90 days. In order to better demonstrate
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the differences between section 191 prior to its amendment and section 191
after its amendment, I quote the relevant sections here below.
[10] Prior to its amendment in 2002, section 191(1) read as follows:
“(1) If there is a dispute about the fairness of a dismissal, the
dismissed employee may refer the dispute in writing within thirty days of
the date of dismissal to –
(a) a council, if the parties to the dispute fall within the
registered scope of that council; or
(b) the Commission, if no council has jurisdiction.”
[11] Section 191(1) now reads as follows:
“1(a) If there is a dispute about the fairness of a dismissal, or a dispute
about an unfair labour practice, the dismissed employee or the employee
alleging the unfair labour practice may refer the dispute in writing to –
i) a council, if the parties to the dispute fall within the registered
scope of that council; or
ii) the Commission if no council has jurisdiction.
b) A referral in terms of paragraph (a) must be made within –
i) 30 days of the date of a dismissal or, if it is a later date, within 30
days of the employer making a final decision to dismiss or uphold
the dismissal;
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(ii) 90 days of the date of the act or omission which
allegedly constitutes the unfair labour practice or, if it is a later
date, within 90 days of the date on which the employee became
aware of the act or occurrence.” (my underlining)
[12] I should point out that neither subsection (2) concerning condonation nor sub
section (5) concerning the certification of a dispute was amended, save by the
introduction in subsection (5) of subsection (a)(iv) which provides for the
arbitration of a dispute concerning an unfair labour practice. The only
substantive amendment to section 191(1) concerns the referral of unfair labour
practice disputes. The basic structure of section 191(1) therefore remains the
same.
[13] Mr Chadwick submitted that because the amended section 191(1) provides that
a dispute must be referred within the time limits provided, this places an
obligation upon a Commissioner arbitrating a dispute to enquire whether the
dispute was timeously referred and if not, whether the late referral may be
condoned. In support of this contention he referred me to Rule 22 for the
Conduct of Proceedings before the CCMA published on 10 October 2003. This
rule reads as follows:
“If during the arbitration proceedings it appears that a jurisdictional issue has
not been determined, the commissioner must require the referring party to
prove that the Commission has jurisdiction to arbitrate the dispute.”
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[14] I do not agree that the Fidelity Guards Holdings case is distinguishable because
of the amendment or that the amendment read with Rule 22 introduces a new
jurisdictional prerequisite. I consider that the principle remains the same and
that as long as the certificate of outcome has not been set aside, the
Commission retains jurisdiction. It is the setting aside of the certificate of
outcome that would render the Commission without jurisdiction to arbitrate (see
paragraph 12 of the Fidelity Guardings Holdings decision ( supra) at 1393 H –
1394 A). In my view, Rule 22 does not assist the University as it has limited
application in circumstances such as those that arose in SA Broadcasting
Corporation v Commission for Conciliation, Mediation & Arbitration & Others
(2003) 24 ILJ 211 (LC). In any event, the Rules of the CCMA constitute
subordinate legislation which cannot be used to interpret the provisions of the
LRA (see Chemical Workers’ Industrial Union v Price’s Candles SA (Pty) Ltd
(1994) 15 ILJ 852 (IC) at 861 B – C).
[15] I now turn to consider the second point in limine which is to the effect that
because Professor Velinov resigned, he could not avail himself of the unfair
labour practice provisions contained in section 185. In this regard it must be
borne in mind that after Professor Velinov’s resignation was accepted, he
referred a dispute in terms of section 191 to the Commission which he
characterised as an unfair labour practice. This dispute concerned his non
appointment to the vacant positions, the very reason he resigned from his
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employment. It was submitted on behalf of the University that although
Professor Velinov’s resignation only became effective at the end of June 2004,
he could nonetheless not avail himself of the provisions prohibiting unfair labour
practices. It was submitted that these provisions are only intended for the
benefit of employees who are engaged in ongoing relationships with
employers. In support of this contention I was referred to Sithole v Nogwaza
N.O. & Others [1999] 12 BLLR 1348 (LC), specifically at paragraphs 44 and 45.
[16] I do not accept that an employee whose employment has been terminated
either by resignation or otherwise, but who continues to work out his or her
notice period, does not enjoy the protection of the provisions of the LRA and
particularly the unfair labour practice provisions contained in Chapter VIII. This
would not only be contrary to section 186(2) which, in defining an “unfair labour
practice”, does not distinguish between different categories of employees but it
is also contrary to the definition of “employee” in section 213. It is also contrary
to the principle that despite termination of employment, employees have rights
in the wider “ongoing employment relationship” (see National Automobile &
Allied Workers’ Union v BorgWarner SA (Pty) Ltd 1994(3) SA 15 (A) at 25 E –
I)
[17] Sithole’s case does not support the University. While it is true that the Court
found that the Commission lacked jurisdiction to entertain disputes concerning
alleged unfair conduct by an employer committed after termination of the
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employment relationship, in this case the employment relationship did not
terminate until the end of the notice period on 30 June 2004. Professor Velinov
remained an employee until that date and was accordingly entitled to the
protection against unfair labour practices contained in Chapter VIII of the LRA.
[18] Finally, the approach that I take to the Commissioner’s ruling on the
abovementioned points in limine is that his reasoning process is not only wrong
but is so flawed to the extent that the conclusion may be drawn that he
committed a gross irregularity. See in this regard Goldfields Investment Limited
& Another v City Council of Johannesburg & Another 1938 TPD 551 at 560 and
Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) at 351
F – 352 B.
[19] I make the following order:
[a] that the arbitration award delivered by the Second Respondent on
20 June 2004 be reviewed and set aside;
[b] the matter is remitted to the Commission for arbitration;
[c] the First Respondent is ordered to pay the Applicant’s costs.
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_______________________________
G O VAN NIEKERK AJ
Appearances: For the Applicant D P Crampton
Instructed By Tomlinson Mnguni James
For the Respondent Mr A I J Chadwick from
Shepstone & Wylie
Date of Judgment: 26 October 2005
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