Parties’ contentions
[6]
Counsel for the appellant submitted that the Labour Court did not have jurisdiction to make the
award an order of Court. In this regard he submitted that the Labour Court does not have general jurisdiction in labour matters but
only has jurisdiction in those labour matters which the Labour Relations Act requires to be dealt with by it. He referred to s 157
(1) and (2) of the Act. Sec 157 (1) and (2) reads thus:-
“157(1)
Subject to the Constitution and section 173, and except where this Act provides otherwise, the Labour Court has exclusive jurisdiction in respect of all matters that elsewhere in terms of this Act or in terms of any other law are to be determined by the Labour Court.
(2)
The Labour Court has concurrent jurisdiction with the High Court in respect of any alleged or threatened
violation of any fundamental right entrenched in Chapter 2 of the Constitution of the Republic of South Africa, 1996, and arising
from –
(a)
employment and from labour relations;
(b)
any dispute over the constitutionality of any threatened executive or administrative act or conduct, by the State in its capacity as an employer;
and
(c)
the application of any law for the administration of which the Minister is responsible.
[Sud-s (2) substituted by s. 14 of Act No. 127 of 1998]”
[7]
In this regard Counsel also referred to Fredericks & others v MEC for Education & Training, Eastern Cape & others (2002) 23 ILJ 81 (CC) at 102 A-H. It is not necessary to quote all those paragraphs. It suffices to quote par 38 and par 40 of the judgement. Paragraph 38 will be
quoted in full but only part of par 40 will be quoted. In par 38 of its judgement in Fredericks the Constitutional Court said:-
“38 Section 157 (1) therefore has the effect of depriving the
High Court of jurisdiction in matters that the Labour Court
is required to decide except where the Labour Relations Act
provides otherwise. Deciding which matters fall within the
exclusive jurisdiction of the Labour Court requires an
examination of the Labour Relations Act to see which
matters fall ‘to be determined’ by the Labour Court. It is
quite clear that the overall scheme of the Labour Relations
Act does not confer a general jurisdiction on the Labour
Court to deal with all disputes arising from employment. As
Nugent JA held in Fedlife Assurance Ltd: ‘(S)ection157 (1)
does not purport to confer exclusive jurisdiction upon the
Labour Court generally in relation to matters concerning the
relationship between employer and employees’.
Leaving out the last sentence of par 40 and the extract from the Supreme Court Act,
par 40 of the judgement reads thus:-
“As there is no general jurisdiction afforded to the Labour
Court in employment matters, the jurisdiction of the High
Court is not ousted by s 157 (1) simply because a dispute is
one that falls within the overall
sphere of employment
relations. The High Court’s jurisdiction will only be ousted in
respect of matters that ‘are to be determined’ by the Labour
Court in terms of the Act. The Concise Oxford English
Dictionary (1990 edition) defines ‘determine’ so as to include
‘to settle’, ‘to decide’, and ‘to fix’. Adopting this definition, a
matter to be determined by the Labour Court as
contemplated by s 157 means a matter that in terms of the
Act is to be decided or settled by the Labour Court…”.
[8]
Counsel for the appellant then went on to submit that the only awards that can be made orders of
the Labour Court are those of the CCMA, and, I would assume, those issued under the auspices of bargaining councils and accredited
agencies. I did not understand Counsel for the appellant to dispute the jurisdiction of the Labour Court to make arbitration awards
issued in private arbitrations governed by the Arbitration Act, 1965 its orders if they relate to disputes that in terms of the Act
require to be arbitrated. That the Labour Court has jurisdiction to make such awards orders of the Court is clear from s 157(3) of
the Act.
[9]
On behalf of the second respondent reliance was placed on the provision of s 158 (1) (c) to contend
that the Court a quo had jurisdiction to make the award in this case an order of Court. I shall revert to this shortly.
Consideration of the appeal
[10]
It is true that s 157 (1) confers exclusive jurisdiction on the Labour Court in respect of all matters
that in terms of the Act or any other law are to be determined by the Labour Court and that this is subject to the Constitution and
s 173 of the Act. Sec 173 of the Act deals with those situations where this Court may sit as a court of first instance. Sec 157 (2)
confers concurrent jurisdiction on the Labour Court in respect of matters where there is an alleged or threatened violation of any
fundamental right entrenched in our Bill of Rights and arising from the matters set out in (a), (b) and (c) in that subsection.
[11]
I do not consider it necessary in this case to express a view on the extent of the jurisdiction that
the Labour Court has in matters relating to employment. It is, however, necessary to say that s 157 of the Act is not the beginning
and the end of the jurisdiction of the Labour Court. Indeed, s 77 (3) of the Basic Conditions of Employment 1997 (Act no 75 of 1997)
(“the BCEA”) gives the Labour Court extremely wide concurrent jurisdiction with the High Court in respect of employment matters. Sec 77 (3) reads
thus:-
“The Labour Court has concurrent jurisdiction with the civil courts to determine any matter concerning a contract of employment, irrespective
of whether any basic condition of employment constitutes a term of that contract”.
[12]
It would be difficult to think of any labour matter that would fall outside the ambit of s 77 (3) of
the BCEA. However, I consider it unnecessary to express a definitive view on whether none would.
[13]
Sec 158 of the Act bears the heading: “Powers of the Labour Court”. Sec 158 (1) (c) provides that the Labour Court may “make any arbitration award or any settlement agreement an order of the Court”. On the face of it this provision is very wide. It refers to “any” arbitration award without in any way qualifying or limiting that term to specific arbitration awards or excluding certain arbitration
awards. The question that arises is, in my view, whether it can be said that this provision – wide as it is – does not
include an arbitration award such as the one involved in this case. Counsel for the appellant conceded that s. 158 (1) (c) is the
provision that, read with s 157 (1), confers jurisdiction on the Labour Court to make an arbitration award issued under the auspices
of the Commission for Conciliation Mediation and Arbitration (“CCMA”) an order of the Labour Court even though s 158 (1) (c) makes no specific reference to CCMA awards. He was unable to make any submission
on what the statutory basis was for not reading s 158 (1) (c) so as to include an award such as the one in this case but reading
it as including a CCMA award. However, he submitted - very vigorously – that no matter what s 158 (1) (c) says, it cannot be
read as conferring jurisdiction on the Labour Court to make an arbitration award such as this one in this case an order of that Court.
[14]
In my judgement the provisions of s 158 (1) (c) read with s 157 (1) are wide enough to confer jurisdiction
on the Labour Court to make an arbitration award such as the one in this case an order of the Labour Court. CCMA awards are dealt
with under that provision. Bargaining Council awards are dealt with under that provision. Awards from accredited agencies are dealt
with under that provision. There is no reason why the Act would have sought to exclude from the jurisdiction of the Labour Court
an arbitration award which is the result of a private arbitration agreed upon by the employer and a trade union in respect of an
unfair dismissal dispute. This is more so because the Act seeks to promote private arrangements that employers and trade unions find
suitable to themselves in the light of their own circumstances. It encourages private dispute resolution. This case was taken to
private arbitration by agreement between the parties.
[15]
The parties’ oral agreement was that the powers that the second respondent would have in conducting
the arbitration would be the same as those of a commissioner of the CCMA dealing with a similar matter. In my view that is a further
factor that brings the arbitration award in this case within the ambit of s 158 (1) (c). Quite clearly the parties wanted the resultant
arbitration award to be treated as if it had been issued by a CCMA commissioner. By the appellant’s own admission, s 158 (1)
(c) gives the Labour Court jurisdiction to make a CCMA award its order.
[16]
Counsel for the appellant argued that, if this Court came to the conclusion that the Labour Court did
have jurisdiction to make the award an order of Court, it should nevertheless not make that part of the award relating to a warning
part of the order of this Court. He based this on a contention that the arbitrator did not have power to impose a warning. He submitted
that the second respondent’s power was limited to finding whether the dismissal was unfair and ordering reinstatement or awarding
compensation but not imposing a warning.
[17]
In my view this point is academic because the arbitrator has already found that dismissal was too harsh
a sanction and the warning he imposed on the second respondent was a final written warning. If we were to uphold the submission by
Counsel for the appellant and set the final written warning aside, what more serious sanction - short of dismissal - would the appellant
seek to impose on the second respondent? I think none because a final written warning is the most serious disciplinary sanction short
of dismissal that an employer can, generally speaking, impose. In this case Counsel for the appellant could not suggest what sanction
the appellant would be entitled to impose other than the one that the commissioner has already imposed. Accordingly, the appellant
is asking this Court to engage in an academic and futile exercise. The request that we set aside the final written warning falls
to be rejected.
[18]
In conclusion the appeal is dismissed with costs.
Zondo JP
I agree.
Willis JA
I agree.
Jafta AJA
Appearances:
For Appellants:
Adv. G.S. Jansen Van Vuuren
Instructed by:
Kraut Wagner & Kernick Attorneys
For Respondents:
Mr G.N. Moshoana
Instructed by:
Mohlaba and Moshoana Inc.
Date of Judgement:
20 November 2003
.RTF of original document