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[2026] ZALCCT 156
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Adams v Commission for Conciliation Mediation and Arbitration and Others (C461/2023) [2026] ZALCCT 156 (11 September 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
no:
C461/2023
(1)
Reportable Yes/No
(2)
Of interest to other Judges: Yes/No
(3)
Revised
In
the matter between:
GAVIN
ADAMS
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
NE SAMUEL
N.O.
Second Respondent
DEPARTMENT OF THE
PREMIER
Third Respondent
Heard
:
9 September 2026
Delivered
:
11 September 2026
Summary:
(Review application –
applicant
applied for post at a lower salary level than the one he occupies -
it is trite that a promotion
for the purposes of section 186(2)(a) involves a move by an existing
employee to a higher rank or position
that carries greater status,
responsibility and authority – dispute not related to promotion
and therefore neither CCMA nor
Bargaining Council having jurisdiction
– review dismissed)
JUDGMENT
MAY,
AJ
Introduction
[1]
This is an opposed application to review
and set aside a jurisdictional ruling issued by the Second Respondent
under the auspices
of the First Respondent.
Background
[2]
Applicant
referred a dispute to the General Public Services Sectoral Bargaining
Council (GPSSBC) averring that the Third Respondent’s
failure
to shortlist him for the post of Education Training and Development
Practitioner at salary level 9 constitutes an unfair
labour practice
related to promotion as contemplated in Section 186 (2) (a) of the
Labour Relations Act
[1]
(LRA). Applicant at the time was employed by the National Department
of Trade and Industry in the capacity of Director: Regional
Industry
Development at salary level 13.
[3]
At the hearing of the matter, the Third
Respondent raised a jurisdictional objection that the dispute does
not relate to an unfair
labour practice because the post that the
Applicant applied for was at a much lower level than the one he
occupied at the time.
[4]
The
arbitrator, Commissioner Retief Olivier, with reference to
Jele
[2]
and
Malatji
[3]
held
that it is trite that a promotion for the purposes of section
186(2)(a) involves a move by an existing employee to a higher
rank or
position that carries greater status, responsibility and authority.
[5]
Given that the Applicant’s dispute
did not fall within the ambit of a promotion, the arbitrator ruled
that he could not assume
jurisdiction in a dispute that falls outside
of the definition of an unfair labour practice and thus found that
the GPSSBC does
not have jurisdiction.
[6]
The Applicant thereafter referred the
matter to the First Respondent who appointed the Second Respondent to
arbitrate the dispute.
The Applicant contended before the Second
Respondent that the First Respondent has the authority to overturn
the arbitrator’s
ruling and determine the dispute
notwithstanding the fact that the post applied for did not relate to
a promotion.
[7]
The
Second Respondent, with reference to Sections 145 and 158 of the LRA,
confirmed that the exclusive jurisdiction to review decisions
rests
with the Labour Court. The Second Respondent further held, with
reference to
Dairybelle
[4]
and Driveline Technologies
[5]
that
the CCMA is
functus
officio.
She
accordingly found that the CCMA lacks jurisdiction to hear the
dispute.
Evaluation
[8]
When
the jurisdiction of an arbitrator is in question, the issue for
determination is whether he or she objectively had jurisdiction
in
law and fact because a finding that the arbitrator had jurisdiction,
because he or she might reasonably have assumed as much,
"
is
wholly untenable in principle
".
In other words, the question of the reasonableness of the
Commissioner's decision does not arise and in effect, the
Commissioner's decision is of no real consequence. The Court
must decide the issue of jurisdiction
de
novo
on the basis of the record filed in the review proceedings.
[6]
[9]
During argument, the Applicant
conceded that the legal basis of both awards is correct. The
concession was correctly made. As pointed
out by Mr Tsegarie, who
appears for the Third Respondent, there is simply no case made out
for a review of the Second Respondent’s
award, which is sought
by the Applicant, let alone Commissioner Olivier’s award, which
is belatedly sought in the Applicant’s
amended notice of
motion. The awards are both correct and are thus unassailable.
[10]
The
Applicant in Court sought the Court’s guidance on what remedies
he may still have available to him if any to challenge
the decision
not to shortlist him. It is not appropriate for a Judge, even an
acting Judge, to act as an advocate, attorney or
legal advisor
[7]
and as such I have urged the Applicant to approach a legal
representative for advice on the matter.
Costs
[11]
The most appropriate order as to costs is
that both parties remain responsible for their own costs.
[12]
In the premise the following order is made:
Order
1.
The application for review is dismissed.
2.
There is no order as to costs.
C. May
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Applicant in person
For the third
respondent: Adv. C
Tsegarie instructed by the State Attorney,
Cape Town.
[1]
Act 66 of 1995, as amended.
[2]
Jele v
Premier of the Province of Kwazulu-Natal and others
(2003)
ILJ 1392 (LC) at para 1398.
[3]
Malatji
v City of Tshwane Metropolitan Municipality and Others
(2019)
ZALCJHB 300
[4]
Dairybelle
(Pty) Ltd v Lupondwana N.O. and others (C679/2001)
[5]
NUMSA & others v Driveline Technologies (Pty) Ltd and another
(2000) 21 ILJ 142 (LAC) at para 15.
[6]
See:
Moses
v Commission for Conciliation, Mediation and Arbitration and Others
(2019)
40 ILJ 2371 (LC) at paras 11 and 12 citing
SA
Rugby Players' Association and Others v SA Rugby (Pty) Ltd and
Others
(2008)
29 ILJ 2218 LAC at para 39 and
Phaka
and Others v Bracks NO and Others
(2015)
36 ILJ 1541 (LAC) at paras 29 and 31
.
[7]
Article 14 (3)(b) of the Judicial Code of Conduct adopted in terms
of
Section 12
of the
Judicial Service Commission Act 9 of 1994
.