By Yashin Bridgemohan

Mashego v Cellier NO and Others (2016) 37 ILJ 994 (LC)

The applicant in this case was dismissed for alleged misconduct. He then referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The matter was unresolved at conciliation. The applicant then referred his case to arbitration, which came before the first respondent (the commissioner).

At arbitration, it was not in dispute that the matter was referred and heard as an unfair dismissal dispute relating to misconduct.

The applicant was represented by a union official at the proceedings. During the course of cross-examining the first witness, the union official, suggested that the employee’s dismissal was based on his affiliation to the union.

The first respondent then suspended the proceedings and struck the matter from the roll on the basis that the CCMA did not possess jurisdiction to continue with arbitration. The applicant then terminated the mandate of his union representative and sought the services of an attorney.

The applicant’s attorneys proceeded to make application to the CCMA to have the unfair dismissal dispute re-enrolled for arbitration, which went unopposed.

The applicant provided in his supporting affidavit that:

• His union representative acted without his instructions when he provided that the dismissal was based on his affiliation to the trade union.
• He was advised that the Labour Court (LC) does not possess jurisdiction to hear an unfair dismissal dispute as a result of misconduct.
• The main reason for his dismissal was for alleged misconduct and he did not wish to rely on any other reasons, such as victimisation or the fact that he was part of union activities or that he was a shop steward.

The application was heard by the first respondent who denied the application. The first respondent proceeded to make an order that his previous ruling to strike the matter off the roll was res judicata.

The first respondent’s reasoning for refusing to re-enrol the dispute for arbitration was that he was not aware of any provision in the Labour Relations Act 66 of 1995 (LRA), which conferred jurisdiction on him to set down and/or re-enrol the matter for arbitration before the CCMA under these circumstances or the circumstances detailed by the employee party.

The applicant then made application to the LC in terms of s 158(1)(g) of the LRA to have the ruling not to re-enrol the arbitration reviewed and set aside.

Issue before the LC

The main issue before the LC was whether the first respondent should have re-enrolled the dispute of unfair dismissal.

LC’s judgment

Steenkamp J looked at the Constitution which ‘guarantees the right to fair labour practices.’ The court further provided the LRA ‘gives effect to those rights’ and one of the LRA’s prime objectives is ‘to promote the effective resolution of labour disputes’ (at para 15).

Steenkamp J provided that for it to be effective, dispute resolution should be quick and both time and legal costs should be minimised. In this regard Steenkamp J referred to the case of National Education Health and Allied Workers Union v University of Cape Town and Others 2003 (3) 1 SA (CC) at para 31 where the Constitutional Court confirmed this principle and stated:

‘By their very nature labour disputes must be resolved expeditiously and be brought to finality so that the parties can organise their affairs accordingly. They affect our economy and labour peace. It is in the public interest that labour disputes be resolved speedily …’.

Steenkamp J noted that the first respondent when passing his first ruling that the matter be struck off the roll did not make a final ruling. The first respondent merely provided that the matter be struck off the roll (at para 18).

Steenkamp J noted further: ‘A ruling that the dispute should be struck from the roll is not final in effect.’ The first respondent had committed an error in ruling that the dispute was res judicata, which in effect resulted in ‘an unreasonable result depriving the employee of having the real dispute – unfair dismissal based on misconduct –  arbitrated before the CCMA, which is the forum with jurisdiction to hear that dispute’ (at para 21).

Steenkamp J then noted judgment of PT Operational Services (Pty) Ltd v Retail and Allied Workers Union on behalf of Ngweletsana (2013) 34 ILJ 1138 (LAC) at para 28 where the Labour Appeal Court confirmed that the functus officio doctrine, which closely aligned to that of res judicata, was not applicable to CCMA commissioners.  However, it does apply when a commissioner makes a ruling that is final in effect (SA Municipal Workers Union v SA Local Government Bargaining Council and Others (2014) 35 ILJ 2824 (LAC) at para 19).

Steenkamp J held a party to a dispute before the CCMA may withdraw it before it has been finally decided and re-enrol it. Steenkamp J provided similar considerations are applicable to the present case. Even though the applicant had not withdrawn the dispute, the first respondent struck it off the roll. The first respondent did not finally decide it based on the merits. As such, Steenkamp J concluded he did not see anything that stopped the applicant from re-enrolling it (at para 24).

Steenkamp J further held that when the  first respondent struck the matter from the roll when he made his first ruling, he had not dismissed the dispute on the merits and the dispute was not res judicata. When the first respondent ruled that it was, after the employee had applied for the unfair dismissal dispute to be re-enrolled, an error of law was made. That led to an incorrect finding, as well as an unreasonable result that needs be reviewed and set aside (at para 25).

The LC accordingly ordered that the ruling of the first respondent be reviewed and set aside and the CCMA is to set down for arbitration, the applicant’s dispute for unfair dismissal before a new commissioner.

Conclusion

This case is important because it highlights the view that when an unfair dismissal dispute is merely struck off the roll at arbitration by a commissioner at the CCMA, without a final ruling been made on the merits of the dispute, it may be re-enrolled for arbitration.

Yashin Bridgemohan LLB (UKZN) is an attorney at Yashin Bridgemohan Attorney in Pietermartizburg.

This article was first published in De Rebus in 2016 (Aug) DR 45.