Qibe v Joy Global Africa (Pty) Ltd and Others (LAC) (unreported case no JA119/13, 15-1-2015) (Setiloane AJA)

By Moksha Naidoo

This appeal turned on the question of whether a Commission for Conciliation, Mediation and Arbitration (CCMA) commissioner, can on his or her own accord, assume jurisdiction over parties who fall under the jurisdiction of a bargaining council or where one such party falls under the scope of a bargaining council.

The appellant employee referred an unfair dismissal dispute to the CCMA. On receipt of the notice of set down, the first respondent employer e-mailed the case manager officer at the CCMA and advised that it fell within the jurisdiction of the Metal and Engineering Industries Bargaining Council (MEIBC) and as such the CCMA does not have jurisdiction over the dispute.

On the day of the arbitration only the employee attended. Seemingly unaware of the aforementioned e-mail, the commissioner continued in the absence of the employer and delivered a default award. The employer launched a rescission application alleging that as a party to the MEIBC, the CCMA was deprived of any jurisdiction to deal with the dispute.

The rescission application came before the same commissioner who delivered the default award. In his rescission ruling the commissioner found that in the absence of any party challenging the CCMA’s jurisdiction at the onset of the process (conciliation or arbitration), the CCMA can assume jurisdiction despite the fact that one or both parties fell under the jurisdiction of a bargaining council.

It was this ruling that formed the subject matter of legal proceedings.

On review, the Labour Court per Benjamin AJ, found that the CCMA did not have jurisdiction to hear the dispute as both parties fell with the jurisdiction of the MEIBC and as such set aside the commissioner’s rescission ruling.

In turn the employee approached the Labour Appeal Court (LAC).

As a starting point the LAC was alive to the fact that as a creature of statute the CCMA could not determine its own jurisdiction. However, s 147 of the Labour Relations Amendment Act 6 of 2014 (the Act) was the statutory exception to this principle.

The relevant subsections of s 147 reads:

‘(2)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute are parties to a council, the Commission may –

    (i) refer the dispute to the council for resolution; or

   (ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.

(3)(a) If at any stage after a dispute has been referred to the Commission, it becomes apparent that the parties to the dispute fall within the registered scope of a council and that one or more parties to the dispute are not parties to the council, the Commission may –

  (i) refer the dispute to the council for resolution; or

 (ii) appoint a commissioner or, if one has been appointed, confirm the appointment of the commissioner, to resolve the dispute in terms of this Act.’

In keeping with the purpose of the Act (that being to resolve labour disputes in a speedy effective manner) the LAC confirmed the view that s 147 was designed to avoid delays arising out of jurisdictional challenges by giving the CCMA the choice of dealing with a dispute where the parties fell within the ambit of a bargaining council or by referring these disputes to the relevant bargaining council.

As to who has the mandate to exercise this choice, the LAC referred to its recent judgment wherein it held the following:

‘[W]here a dispute is referred to the CCMA, the matter may not proceed before the CCMA once it is ascertained that the parties are parties to a bargaining council or fall within the registered scope of a bargaining council, until the options set out in s 147(2) and (3) have been exercised by the CCMA.

… [O]nce that is ascertained, it is then for the CCMA or its delegate (and not the commissioner hearing the matter when this was ascertained) to determine whether to refer the matter to the bargaining council or to appoint a commissioner to determine the dispute or if one has already been appointed, to confirm his or her appointment’

Following this approach the LAC in casu held:

‘… in the current matter, once the respondent had placed its founding affidavit before the Commissioner, in the rescission application, contending that the it was a member of the MEIBC and that the appellant fell within its registered scope, he was required in terms of s 147(3)(a) of the LRA to request the CCMA management to make a ruling on whether to refer the dispute to the MEIBC for resolution, or whether he could continue to determine the dispute. This was not a decision for the Commissioner to make’.

The employee further argued that the choice afforded to the CCMA in terms of s 147, could only be exercised from the time the disputed was first referred to the CCMA until such time as the default award was delivered. Therefore according to the employee, it was incorrect to apply the provisions of s 147 in a rescission application, which was filed subsequent to and in response to the default award.

The LAC dismissed this argument. It held that the provisions of s 147(2)(a) and (3)(a) finds application from the time a disputed has been referred to the CCMA until such time as the dispute has been resolved by way of an award, which is final. While a default award will have full effect until set aside, it is not final for purposes of review on the ground that it can be revisited by way of a rescission application.

The appeal was dismissed with costs.

• Moksha will be conducting a one day labour law seminars on behalf of the Legal Education and Development arm of the Law Society of South African at various provinces in June 2015. For more information and to register please visit www.lssalead.org.za and click on labour law seminar.

Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

This article was first published in De Rebus in 2015 (April) DR 53.