IN THE LABOUR APPEAL COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

								CASE NO.	JA36/2002 

In the matter between:

The City of Tshwane Metropolitan Municipality		Appellant

and	

J. Campella NO                                                                      First Respondent

MESHAWU                                                                       Second Respondent

Regional Secretary of the South African Local 
Government Bargaining Council                                       Third Respondent	                                               	

JUDGEMENT

Zondo JP

Introduction

[1]	The question in this appeal is whether the Labour Court has jurisdiction to make an arbitration award issued pursuant to a common law arbitration agreement in regard to a dismissal dispute its order. The appellant contends that the Labour Court has no such jurisdiction whereas the respondent contends that it does have such jurisdiction.

Background

[2]	On the 1st February 1999 the appellant dismissed one of its employees, a Mr. D. P. Motsetsi, from its employ after he had been found guilty of misconduct in a disciplinary inquiry.  This dismissal gave rise to a dispute between the appellant , on the one hand, and Mr Motsetsi and his union, the second respondent in this appeal on the other, on the fairness or otherwise of the dismissal.  The union referred the dispute to the South African Local Government Bargaining Council, the third respondent, for conciliation.  That bargaining council was not registered in terms of the Labour Relations Act, 1995 (Act 66 of 1995) (“the Act”).  Accordingly, for purposes of the Act it was not a bargaining council.

[3]	The parties thereafter concluded an oral agreement that the dispute be referred to an organisation called the Independent Mediation Service of South Africa, (“IMSSA”), which is now defunct, for arbitration. IMSSA was not accredited in terms of s 51 and 127 of the Act.  IMSSA assigned the dispute to one of the arbitrators on its panel  namely, the first respondent.  The first respondent’s terms of reference were effectively to determine whether on the basis of the evidence given in the arbitration Mr Motsetsi was guilty of the misconduct for which he had been dismissed and, if he was, whether the sanction of dismissal was, in all the circumstances, appropriate.  It was agreed between the parties that the first respondent would have the same powers that a commissioner of the Commission for Conciliation, Mediation and Arbitration (“CCMA”) has when arbitrating a similar dispute.  Such powers include the power to order reinstatement.  

[4]	Pursuant to the arbitration proceedings, the first respondent found that the dismissal was unfair.  He issued an award to the effect that the appellant reinstate the employee with effect from the date of the award and give him a final written warning.  The appellant was aggrieved by the award.  The second respondent subsequently brought an application in the Labour Court in terms of s 158 (1) of the Act to have the award made an order of Court.  The appellant brought an application in the same Court in terms of s 145 of the Act to have the award reviewed and set aside.

[5]	The appellant later withdrew its application and tendered to pay the second respondent’s costs. The appellant opposed the second respondent’s application to have the award made an order of Court.  The Court a quo granted an order making the award an order of the Labour Court.  The appellant brought an application for leave to appeal.  That application was refused by the Labour Court.  The appellant then petitioned this Court for leave.  That petition was successful and leave to appeal was granted.  

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